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ELRCPartially AllowedReference arising from Miscellaneous Application No. E117 of 2023 (own cause number not stated in the judgment)· [2025] KEELRC 1224 (KLR)

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)

Employment and Labour Relations Court of Kenya
30 April 2025
5,350 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicant advocate filed a reference under Rule 11 of the Advocates [Remuneration] Order seeking to set aside the Taxing Master's (Hon. Aziza Ajwang) decision of 22nd December 2023 on his Advocate-Client Bill of Costs arising from the judgment in ELRC Cause No. 1352 of 2018 (Board of Trustees, KBC Staff Retirement Benefits Scheme v KBC). The Respondent Pension Scheme filed a cross-reference seeking the same setting aside, but relying on an alleged legal fee agreement dated 21st May 2018 providing for fees of KShs 480,000, arguing estoppel and lack of jurisdiction to tax. The Applicant filed a preliminary objection against the cross-reference. The Court upheld the preliminary objection, holding that although a cross-reference is an acceptable practice notwithstanding that Order 11 does not expressly provide for it, the Respondent filed no notice under Order 11(1), filed about five months out of time without seeking enlargement, and improperly sought to reintroduce evidence the Court had declined to admit on 18th March 2024, making the cross-reference an abuse of process; it was dismissed with costs. On the reference, the Court found the Taxing Master committed an error of principle by valuing the subject matter from the pleadings (KShs 820,242,211.57, an ungranted alternative prayer) instead of from the judgment and the parties' filed computations (approximately KShs 18.4 billion), and by overlooking Section F and misconsidering other items. The reference was allowed and the Bill remitted for fresh taxation before a different Taxing Officer, with directions on instruction fees, waking-up fees, one-half enhancement, Sections F and H, interest and VAT, and costs of the application awarded to the Applicant.

Key legal issues

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01

Whether the Respondent's cross-reference was competent

Holding

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.

Reasoning

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.

p. 7
02

Whether the Taxing Master erred in principle in valuing the subject matter

Holding

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.

Reasoning

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.

p. 10
03

Whether the Taxing Master erred in omitting or misconsidering items in the Bill

Holding

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.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The Respondent's cross-reference dated 15th May 2024 dismissed with costs
  2. 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. 3.Waking-up fees to be based on the reassessed instruction fees
  4. 4.The reassessed instruction fees to be enhanced by one-half as contemplated under the Advocates [Remuneration] Order
  5. 5.The items listed in Section F of the Bill of Costs to be considered and a decision rendered on them
  6. 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. 7.The total sum awarded to the Applicant to accrue interest at court rates from the date of taxation until payment in full
  8. 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. 9.Costs of the Applicant's application
  10. 10.The Taxing Officer to expedite the reassessment

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 3
  • Civil Procedure ActSections 1A, 1B, 3A
  • Advocates [Remuneration] OrderRule 11; Schedule 6 Part A; Schedule 6[B]
  • Advocates ActSection 45[6]
  • Retirement Benefits ActSection 53A
  • Value Added Tax Act, 2015Sections 6[1] and 2

Cases cited (5)

  • Peter Muthoka & Another v Ochieng and 3 others
    [2019] eKLR
  • First American Bank of Kenya Ltd v Gulab P. Shah & 2 others
    [2002] eKLR
  • Mbogo vs Shah
  • Steel & Petroleum [E.A] Ltd vs Uganda Sugar Factory
  • Nanyuki Esso Service v Touring Cars Ltd
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

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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, "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.