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ELRCPartially AllowedELRC Petition No. E145 of 2024 (Reference)· [2026] KEELRC 2432 (KLR)

Njoroge & 2 others v Kenya Medical Supplies Authority & 3 others (Constitutional Petition E145 of 2024) [2026] KEELRC 2432 (KLR)

Employment and Labour Relations Court
20 August 2026
11,745 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~47 min to read original · ~4 min brief

The bottom line

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The court confirmed that lawyers cannot inflate fees on constitutional petitions by citing the value of the subject matter, sending the fee back for fresh taxation.

What this practically means

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Executive summary

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This is a ruling on a reference under paragraph 11(2) of the Advocates (Remuneration) Order brought by Kenya Medical Supplies Authority, challenging a taxation ruling of Deputy Registrar Hon. Rebecca Thyaka dated 15th April 2026, which taxed the 1st and 3rd Petitioners' Party and Party Bill of Costs arising from a constitutional petition in which the court had earlier awarded each petitioner general damages of Kshs 6 million plus compensation for unlawful constructive dismissal. The Petitioners raised grounds of opposition contending the notice of objection and the reference were incompetent for late filing, non-payment of the Kshs 75 filing fee, and failure to specify items objected to. The court framed two issues: competence and merit. On competence, it held the request for reasons made by letter on 15th April 2026 was received by the taxing master within 14 days and answered on 7th May 2026, so the reference filed on 11th May 2026 was within time; the later CTS upload and unpaid Kshs 75 invoice were technicalities, and item particulars were unnecessary where the entire ruling was challenged. On merit, the court found the taxing master erred in principle by taxing instruction fees at Kshs 3,000,000 based on the value of the subject matter, an irrelevant private-law factor for constitutional petitions under Schedule 6A(1)(j), which requires justification of any increase above the Kshs 100,000 minimum by reference to nature, importance, complexity, novelty and time expended. The getting-up fee, being derivative, was likewise set aside. However, the court found no error in the taxation of the drawing items. The court ordered fresh taxation of the instruction fee and getting-up fee before a taxing officer other than Hon. Rebecca Thyaka, with each party bearing its own costs. The reference was thus partially allowed.

Key legal issues

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01

Competence of the reference under rule 11 of the Advocates (Remuneration) Order

Holding

The reference was competent. The request for reasons dated 15th April 2026 was received by the taxing master within 14 days and answered on 7th May 2026; the reference filed 11th May 2026 was within 14 days of that response. Failure to pay the Kshs 75 invoice for the later CTS upload was of no legal consequence, and the absence of item particulars was excusable where the whole ruling was challenged.

Reasoning

Rule 11(1) requires notice within 14 days of the decision; the taxing master had already received and answered the request for reasons before the CTS upload, so the upload was overtaken by events and mere technicality. The taxing master herself raised no complaint about lack of particulars. The reference was therefore lodged within 14 days of the reasons under rule 11(2).

p. 20
02

Whether the taxing officer erred in principle in taxing instruction fees and getting up fees

Holding

Yes. The taxing master correctly invoked Schedule 6A(1)(j) but then based the Kshs 3,000,000 instruction fee on the value of the subject matter, an irrelevant private-law factor, without justifying the increase from the Kshs 100,000 minimum on the permitted criteria.

Reasoning

In a constitutional petition, taxation falls under Schedule 6A(1)(j); reliance on value of subject matter per Joreth v Kigano is a private-law guide inapplicable to public-law bills. Having found the petition raised no complex, difficult or novel questions, the taxing master gave no justification for raising the fee from the Kshs 100,000 minimum. The instruction fee and the derivative getting-up fee were therefore erroneous in principle and set aside.

p. 39
03

Whether the taxation of the drawing items was erroneous

Holding

No. All documents drawn by the advocate relating to the suit and bill of costs were chargeable under the schedule, and no error was found in the taxing master's treatment of the drawn items.

Reasoning

Rule 75 permits documents charged by folio to be produced or their length certified, and Schedule 6 provides fees for pleadings, other documents and correspondence. The court, having perused the drawings, found the taxing master's decision on those items free of error, so that limb of the reference failed.

p. 40

Legal principles established

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  • The value of the subject matter, a private-law consideration, is not a basis for taxing instruction fees on a bill arising from a constitutional petition; Schedule 6A(1)(j) applies
  • A request for reasons received by the taxing master within 14 days satisfies rule 11(1), and subsequent portal upload is a matter of technicality
  • Where a party is aggrieved by an entire taxation ruling, it is superfluous to particularise items in the notice of objection

Court orders

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  1. 1.Fresh taxation/assessment of the Respondents/Petitioners' Party and Party Bill of Costs dated 11th December 2025 on instruction fee and getting up fee before a Taxing Officer other than Hon. Rebecca Thyaka
  2. 2.The decision of the Taxing Officer on instruction fee and getting up fee set aside
  3. 3.Each party to bear own costs
Jurisdiction invoked
Paragraph 11(2) of the Advocates (Remuneration) Order, 2009

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, "Njoroge & 2 others v Kenya Medical Supplies Authority & 3 others (Constitutional Petition E145 of 2024) [2026] KEELRC 2432 (KLR)", Case Analysis (2026). ELRC Petition No. E145 of 2024 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2432/eng@2026-08-20

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