Omoke t/a Morara Omoke Advocates v Board of Trustees, Kenya Broadcasting Corporation (KBC) Staff Retirement Benefits Scheme (Miscellaneous Reference Application E002 of 2024) [2025] KEELRC 1224 (KLR)
The bottom line
#Kenya's Employment Court threw out KBC Pension Scheme's late fee challenge and ordered fresh taxation of a lawyer's bill using the judgment value, not the pleadings.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's cross-reference was competent
Though a cross-reference is acceptable practice under the overriding objective, the Respondent's was filed out of the statutory time without leave and was an abuse of process; it was dismissed with costs.
Order 11 of the Advocates [Remuneration] Order exhaustively prescribes the procedure and timelines for impugning taxation decisions. The Respondent filed no notice under Order 11(1) and its application came roughly five months late without any application for enlargement of time. It also sought to rely on the legal fees agreement whose admission the Court had already declined on 18th March 2024, offending the finality of court decisions and amounting to an abuse of process.
Whether the Taxing Master erred in principle in valuing the subject matter
Yes. She resorted to the pleadings and used KShs 820,242,211.57, an alternative prayer the court did not grant, instead of ascertaining the value from the judgment via the parties' computations; this led to a gross underassessment of instruction fees, waking-up fees and the one-half enhancement.
The judgment in the main suit postponed notation of the final figure pending computations by the parties, which were duly filed and are on record (KShs 18,421,704,159.11 and KShs 18,045,740,788.84). Per Peter Muthoka, once judgment is entered, subject matter value flows from the judgment, not the pleadings. The alternative prayer of KShs 820,242,211.57 was never granted, so it could not form the basis of taxation. The Taxing Master's approach was an error of principle warranting interference.
Whether the Taxing Master erred in omitting or misconsidering items in the Bill
She erred by overlooking Section F (registry attendances) and by conflating costs expressly awarded in the cause; Section H instruction fees for applications should be assessed. However, complexity cannot be an independent item, so disallowing item G was proper; VAT applies to taxed costs and interest accrues on the total award.
The order provides for fees for court and registry attendances; overlooking Section F denied the Applicant potential costs. Costs expressly awarded by the court in interlocutory applications should be treated distinctly, guarding against double awards. Untaxed, unsettled taxed costs constitute a debt attracting interest, and advocacy services are a taxable supply under the VAT Act. Complexity influences the evaluation of items but is not itself an awardable item.
Legal principles established
#- A taxing officer's discretion, though discretionary, may be interfered with on reference where it is shown there was a misdirection resulting in a wrong decision or that the decision was improperly exercised, or where it is based on an error of principle or the fee is manifestly excessive.
- Once judgment has been entered, the value of the subject matter for purposes of instruction fees is determined from the judgment, not the pleadings.
- A cross-reference, though not expressly provided for under Order 11 of the Advocates [Remuneration] Order, is an acceptable practice, but the procedure and timelines under Order 11 must be followed.
Court orders
#- 1.The Respondent's cross-reference dated 15th May 2024 dismissed with costs
- 2.The Applicant's reference allowed; the Advocate-Client Bill of Costs remitted back for taxation by a Taxing Officer other than Aziza Ajwang on instruction fees (based on the sum of KShs 18,421,704,159 presented by the Respondent in the main suit as at the date of judgment)
- 3.Waking-up fees to be based on the reassessed instruction fees
- 4.The reassessed instruction fees to be enhanced by one-half as contemplated under the Advocates [Remuneration] Order
- 5.The items listed in Section F of the Bill of Costs to be considered and a decision rendered on them
- 6.Section H of the Bill of Costs to be assessed and awarded, specifically the instruction fees for each application mentioned under that section
- 7.The total sum awarded to the Applicant to accrue interest at court rates from the date of taxation until payment in full
- 8.Value Added Tax to be computed on the taxed amount, with the cumulative amount payable including the taxed amount, accrued interest and VAT
- 9.Costs of the Applicant's application
- 10.The Taxing Officer to expedite the reassessment
- On appeal from
- Employment and Labour Relations Court at Nairobi (Taxing Master, Hon. Aziza Ajwang)
- Miscellaneous Application No. E117 of 2023
- Jurisdiction invoked
- Section 3 of the Employment and Labour Relations Court Act, sections 1A, 1B and 3A of the Civil Procedure Act and Rule 11 of the Advocates [Remuneration] Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omoke t/a Morara Omoke Advocates v Board of Trustees, Kenya Broadcasting Corporation (KBC) Staff Retirement Benefits Scheme (Miscellaneous Reference Application E002 of 2024) [2025] KEELRC 1224 (KLR)", Case Analysis (2025). Reference arising from Miscellaneous Application No. E117 of 2023 (own cause number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1224/eng@2025-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.