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ELRCAllowedNot stated in the judgment as provided· [2025] KEELRC 1936 (KLR)

Munyasya v Kenya National Union of Teachers & another (Employment and Labour Relations Cause E457 of 2023) [2025] KEELRC 1936 (KLR)

Employment and Labour Relations Court
30 June 2025
1,213 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court set aside a Taxing Master's ruling because it used the wrong fee scale and gave no reasons for the instruction fee awarded.

What this practically means

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Executive summary

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This is a Reference by the Respondents challenging a Taxing Master's ruling of 8th July 2024 that taxed their Party and Party Bill of Costs (which sought Kshs. 2,665,261.00, including Kshs. 2,500,000.00 as instruction fees) at only Kshs. 145,401.00. The underlying suit was an ELRC claim by the Claimant challenging his suspension from office, which the court had struck out on 30th November 2023 on a preliminary objection for prematurity, with costs to the Respondents, because internal dispute resolution mechanisms in the 1st Respondent's Constitution had not been exhausted. Manani J restated the principle that a court will not interfere with a Taxing Master's discretion absent an error of principle, citing Kamunyori & Company Advocates v Development Bank of Kenya Ltd. He found two errors of principle: first, the Taxing Master wrongly invoked paragraph 58 of the Advocates Remuneration Order to apply the subordinate court scale, yet no monetary award was made in the primary suit and no party recovered sums within the magistrate's court jurisdiction; second, the award of Kshs. 75,000.00 instruction fees was unexplained - the ruling stated only that 'item 2 is taxed at Kshs. 75,000 all circumstances considered' without disclosing those circumstances, contrary to the requirement that discretion be exercised judiciously, not arbitrarily, and that the criteria be discernible. The Taxation Ruling dated July 8, 2024 was set aside and the matter remitted to another Taxing Master for fresh taxation, with each party bearing its own costs of the Reference. The judgment was delivered online on 30th June 2025 with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Whether invocation of paragraph 58 of the Advocates Remuneration Order constituted an error of principle

Holding

It did. No monetary award was made in the primary suit and the relief granted (striking out the suit for prematurity) was such that neither party recovered sums within the magistrate's court jurisdiction, so the subordinate court scale was wrongly applied.

Reasoning

Paragraph 58 permits the subordinate court scale only where the amount recovered or the relief awarded could fall within a subordinate court's jurisdiction. Here the primary suit, an ELRC matter challenging a suspension, yielded no monetary award and was struck out; nothing was recovered. Applying the subordinate scale in those circumstances was therefore a wrong principle vitiating the taxation.

p. 3
02

Whether the award of Kshs. 75,000.00 instruction fees was justified

Holding

It was not. The Taxing Master's ruling gave no criteria or circumstances for fixing instruction fees at Kshs. 75,000.00 against a claim of Kshs. 2,500,000.00, amounting to an arbitrary exercise of discretion.

Reasoning

While a Taxing Master may fix instruction fees where the value of the subject matter is not discernible from the pleadings or judgment, the discretion must be exercised judiciously. The ruling only stated 'all circumstances considered' without identifying them, so parties cannot perceive the basis of the decision, which the authorities require.

p. 3

Legal principles established

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  • A court will not interfere with a Taxing Master's discretion unless an error of principle is demonstrated; where the sum awarded is manifestly excessive or the fees are arrived at on wrong principles, an error of principle can be inferred and the award set aside.
  • The subordinate court scale under paragraph 58 of the Advocates Remuneration Order applies only where the amount recovered or the relief granted falls within the jurisdiction of a subordinate court; otherwise its application is an error of principle.
  • A Taxing Master's discretion to fix instruction fees where the value of the subject matter cannot be discerned must be exercised judiciously, not arbitrarily, and the criteria for the figure awarded must be disclosed.

Court orders

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  1. 1.The Taxation Ruling dated July 8, 2024 is set aside
  2. 2.The matter is remitted to another Taxing Master for fresh taxation
  3. 3.Each party to bear own costs for the Reference

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 50
  • Advocates Remuneration OrderParagraph 58
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • Kamunyori & Company Advocates v Development Bank Of Kenya Limited
    [2015] eKLR
  • Republic v Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W’Njuguna & 6 others
    [2006] KEHC 3504 (KLR)
Jurisdiction invoked
Reference against a Taxing Master's decision under the Advocates Remuneration Order, entertained by the ELRC as the court of equal status in which the primary suit was filed

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, "Munyasya v Kenya National Union of Teachers & another (Employment and Labour Relations Cause E457 of 2023) [2025] KEELRC 1936 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1936/eng@2025-06-30

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