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ELRCAllowedAdvocate/Client Bill of Costs reference (Chamber Summons dated 22nd July, 2024)· [2025] KEELRC 487 (KLR)

Akide & Company Advocates v Kenyatta National Hospital (Miscellaneous Application E219 of 2023) [2025] KEELRC 487 (KLR)

Employment and Labour Relations Court
21 February 2025
1,815 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that lawyers' fees for its cases must be taxed on the High Court scale, not the cheaper subordinate court scale.

What this practically means

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Executive summary

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This was an advocate-client taxation reference brought by Chamber Summons under Rule 11(2) of the Advocates (Remuneration) Order, in which Advocate Godfrey Munene Mberia sought to set aside the decision of Deputy Registrar D O Mbeja delivered on 8th July 2024 taxing his Advocate/Client Bill of Costs dated 23rd October 2023 arising from Nairobi ELRC Cause No. 1318 of 2013 (Caleb Asiago Ariago v Kenyatta National Hospital). The Applicant complained that the taxing officer wrongly applied Schedule 7 (subordinate courts scale) instead of Schedule 6 (High Court scale), used an incorrect value of the subject matter, and failed to increase instructions fees by 50% under Part B. The Respondent opposed, contending the taxing officer correctly applied Schedule 7 read with Rule 58 since the suit's award of Kshs.174,726/= could have been recovered in a subordinate court. Agnes Nzei J held that the ELRC, being by Article 162(2)(a) a superior court of equal status with the High Court, is governed by Schedule 6; that a taxing officer invoking Rule 58 must peruse the pleadings in the underlying suit before concluding it belonged in the subordinate court, which was not done; and that the 50% increase on instructions fees is a matter of law applicable even if omitted from the bill. The application was allowed, the taxing officer's decision set aside, and the bill remitted for taxation before a different taxing officer under Schedule 6, with each party bearing its own costs.

Key legal issues

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01

Applicable schedule for taxing costs arising from ELRC proceedings

Holding

Schedule 6, not Schedule 7, of the Advocates Remuneration Order (2014) applies to taxation of costs arising from defended proceedings in the ELRC, a superior court of equal status to the High Court.

Reasoning

Article 162(2)(a) makes the ELRC a specialised superior court of equal status with the High Court. In the absence of a separate law regulating taxation of costs arising from ELRC proceedings, the Advocates Remuneration Order applies, and Schedule 6 governs High Court-level proceedings. Schedule 7 applies only to Subordinate Courts. The suit having been defended, Schedule 6 ought to have been applied.

p. 3
02

Application of Rule 58 of the Advocates Remuneration Order

Holding

Rule 58 permits subordinate court scale costs only where, having regard to the pleadings, the cause could have been brought in a subordinate court; the taxing officer must examine the pleadings and state the basis for such a conclusion.

Reasoning

Rule 58 provides that where a cause could have been brought in a Resident Magistrate's Court, subordinate court scale costs apply unless the Judge otherwise orders. The taxing officer here did not peruse the pleadings in the underlying ELRC suit before concluding it should have been filed in the subordinate court, and gave no basis for that conclusion, thus falling into error.

p. 4
03

Mandatory 50% increase on instructions fees

Holding

The taxing officer erred in failing to increase the taxed instructions fees by 50% under Part B of the schedule used, notwithstanding the omission of that item from the bill of costs.

Reasoning

The schedule relied upon by the taxing officer contained a provision in Part B requiring a 50% increase where the fees relate to an advocate's own instruction fees. This increase is a matter of law of which a taxing officer must take cognizance even where the bill of costs omits the item, though advocates are urged to draft bills meticulously.

p. 4

Legal principles established

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  • In employment matters, calculation of instruction fees after judgment should be based on the sum awarded or agreed in settlement
  • A taxing officer applying Rule 58 must peruse the pleadings in the suit from which the taxation arose before concluding it ought to have been filed in the Subordinate Court
  • The 50% increase on an advocate's instruction fees is a matter of law which a taxing officer must apply even where the bill of costs does not contain such an item

Court orders

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  1. 1.The Ruling/decision of the Taxing Officer (D O Mbeja – Deputy Registrar) dated 8th July, 2024, and any reasons subsequently given thereon, set aside
  2. 2.The Advocate/Client Bill of Costs dated 23rd October, 2023 remitted for taxation before a Taxing Officer other than the Honourable D O Mbeja, Deputy Registrar, to be taxed pursuant to Schedule 6 of the Advocates Remuneration Order (2014)
  3. 3.Each party to bear its own costs of the application

Authorities

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Legislation

  • Constitution of Kenya 2010Article 162(2)(a)
  • Advocates (Remuneration) OrderRule 11(2); Rule 58; Schedule 6 (Part A Clause 1(b), Clause 2); Schedule 7 (Part B)
  • Kenya Gazette Notice No. 602422nd June, 2018
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya 2010; Rule 11(2) of the Advocates (Remuneration) Order

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, "Akide & Company Advocates v Kenyatta National Hospital (Miscellaneous Application E219 of 2023) [2025] KEELRC 487 (KLR)", Case Analysis (2025). Advocate/Client Bill of Costs reference (Chamber Summons dated 22nd July, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/487/eng@2025-02-21

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