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ELRCAllowedNot stated in judgment· [2024] KEELRC 1853 (KLR)

Chanai & 26 others v Jack & Jill Supermarkets Ltd (Cause 925A of 2014) [2024] KEELRC 1853 (KLR)

Employment and Labour Relations Court
15 July 2024
BMB. O. M. Manani
881 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that legal fees must be calculated on the amount actually won after appeal, not the larger original award.

What this practically means

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Executive summary

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This was a reference by the Applicant against a taxation ruling delivered on 16th May 2024 by Senior Principal Deputy Registrar Hon. Fredrick Nyamora, taxing items 1 and 2 of a Party and Party Bill of Costs dated 16th November 2023. The Applicant contended that the Taxing Master erred in principle by using Ksh. 2,322,665.38 — the full sum awarded by the ELRC in its judgment of 2nd August 2019, which found the Claimants' employment had been terminated by redundancy under section 40 of the Employment Act — as the value of the subject matter. The Court of Appeal, in its decision dated 1st April 2022, set aside the redundancy findings but upheld salary for days worked in May 2013 and pro-rata leave pay, reducing the amounts due to approximately Ksh. 323,841.81 exclusive of interest (a figure the Applicant pleaded as Ksh. 323,478.84). The court held that using the unscaled-down trial figure produced inordinately high instructions fees and constituted an error of principle. The court allowed the reference, set aside the assessment of instructions fees under items 1 and 2, remitted the two items for fresh taxation before a Taxing Master other than Hon. Fredrick Nyamora, and awarded costs of the application to the Applicant/Respondent. The decision was delivered online with the parties' consent, compliance with Rule 28(3) of the ELRC Procedure Rules having been waived.

Key legal issues

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01

Error of principle by the Taxing Master in assessing instructions fees

Holding

The Taxing Master erred in principle by valuing the subject matter at Ksh. 2,322,665.38 (the full trial award) when the Court of Appeal had set aside the redundancy findings, leaving only approximately Ksh. 323,478.84/Ksh. 323,841.81 due. The assessments under items 1 and 2 were set aside and remitted for fresh taxation before a different Taxing Master.

Reasoning

The underlying dispute concerned irregular termination of the Claimants' employment, decided on 2nd August 2019, which awarded redundancy pay among other reliefs totalling Ksh. 2,322,665.38. On appeal, the Court of Appeal on 1st April 2022 set aside the redundancy findings and upheld only salary for days worked in May 2013 and pro-rata leave, reducing the amount due to roughly Ksh. 323,841.81 exclusive of interest. Since instructions fees are assessed on the value of the subject matter, using the pre-appeal figure produced an inordinately high award and constituted an error of principle.

p. 3

Legal principles established

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  • Where an appellate decision scales down the decretal amount, the value of the subject matter for taxation of instructions fees must reflect the figure actually sustained on appeal, and using the original trial figure is an error of principle.

Court orders

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  1. 1.The assessment of instructions fees under items 1 and 2 in the Bill of Costs dated 16th November 2023 is set aside
  2. 2.The matter is remitted to a Taxing Master other than Hon. Fredrick Nyamora for taxation of the two items based on the observations in this decision
  3. 3.Costs of the application are granted to the Applicant/Respondent

Authorities

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Legislation

  • Employment Actsection 40
  • ELRC Procedure RulesRule 28(3)
Jurisdiction invoked
Reference against a Taxing Master's ruling under the Advocates (Remuneration) Order; court also invoked the ELRC Procedure Rules (Rule 28(3) waived for online delivery)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chanai & 26 others v Jack & Jill Supermarkets Ltd (Cause 925A of 2014) [2024] KEELRC 1853 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1853/eng@2024-07-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.