https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1859

Ashiruma & Co Advocates v Mulinge (Miscellaneous Application E112 of 2025) [2026] KEELRC 1859 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1859 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E112 of 2025 HS Wasilwa, J June 29, 2026 Between Ashiruma & Co Advocates Applicant and David Mulwa Mulinge Respondent Ruling 1.The applicant filed chamber summons dated 2nd July 2025 seeking orders:1.That this honourable court be pleased to set aside the decision of the taxing master as evidenced in the ruling delivered on 19th June, 2025 in respect to the entire advocate/client bill of costs.2.That the decision by the learned taxing master dated 20th June, 2025 be set aside and the applicant’s bill of costs dated 25th July, 2024 be taxed afresh.3.That costs of this reference be awarded to the Applicant. Applicant’s Case 2.The applicant avers that the law firm received instructions from the respondent to act in ELRC 1378 of 2013, in which they successfully secured the respondent's interest and judgment was entered in his favour. 3.The applicant states that they filed an advocate/client bill of costs for taxation against the respondent, which was taxed, and a ruling of the taxing master dated 19th June 2025 was posted on the Court Tracking System allowing the bill of costs at Kshs. 172,340 and taxing off Kshs. 335,521. However, they oppose this outcome, thus prompting the filing of this reference. 4.The applicant further states that they wrote to the taxing master on 2nd July 2025 seeking reasons for the amount allowed in the taxation but has received no response to date. 5.It is the applicant's case that the taxing master acted without jurisdiction by reviewing the judgment of the Employment and Labour Relations Court, which sits at the level of the High Court, and proceeded to tax the advocate/client bill of costs under schedule 7 of the Advocates (Remuneration) (Amendment) Order, 2014, which applies to subordinate courts, instead of schedule 6 applicable to the High Court under which the bill was drawn. 6.The applicant further avers that the taxing master failed to consider and/or make any reference to his own ruling delivered on 16th February 2024 on the party and party bill of costs, in which he had awarded a similar amount of Kshs. 172,340, contrary to the provisions of schedule 6 B(a) of the Advocates (Remuneration) (Amendment) Order, 2014. They contend that the taxing master similarly erred in taxing the party and party bill of costs under schedule 7 instead of schedule 6. 7.It is the applicant's case that it would be in the interest of justice for the advocate/client bill of costs to be resubmitted for taxation afresh. Applicant’s Submissions 8.The applicant submitted on three issues: whether the ruling of the taxing master delivered on 19th June, 2025 should be set aside; whether the advocate/client bill of costs dated 28th April, 2024 should be taxed afresh; and who meets the costs of the application. 9.On the first issue, the applicant submitted that this matter was filed before the court on 27th July 2013 and proceeded for judgment on 20th December 2018. It argued that the court ought to take judicial notice that at the time the cause was filed, Magistrates Courts did not have jurisdiction to handle employment matters, and the matter was never transferred to the Magistrate's Court, the hearing and determination having been conducted by this court sitting at the level of the High Court. 10.The applicant submitted that the taxing master exercised his discretion wrongly and made an error of principle by applying paragraph 58 of the Advocates (Remuneration) (Amendment) Order, 2014, which was not applicable in the circumstances. 11.It cited paragraph 58, which provides:“Causes or matters which, considering the amount recovered, paid in settlement, or the relief awarded, could have been brought in a subordinate court (such as a Resident Magistrate's Court), the costs shall be taxed on the scale applicable to subordinate courts, unless the Judge otherwise orders.";and submitted that this provision could not apply as subordinate courts lacked jurisdiction to hear and determine employment disputes at the material time. 12.The applicant further submitted that the taxing master , having taxed both the party and party bill of costs and the advocate/client bill of costs under the wrong schedule, being schedule 7 instead of schedule 6, made an identical award of Kshs. 172,340 in both instances without considering schedule 6B(b), or as per the two rulings schedule 7B(b), of the Advocates (Remuneration) (Amendment) Order, 2014, which applies to advocate/client bills of costs and provides:“As between advocate and client the minimum fees shall be —(b)the fees ordered by the court increased by 50%." 13.The applicant argued that the award could not have been the same in both bills given the operation of this provision. In so doing, the taxing master , without jurisdiction, effectively reviewed the judgment of this court and reduced it to a subordinate court judgment without making any reference to the Judge who delivered the judgment. 14.It is the applicant’s submission that the respondent's reliance on paragraph 58 of the Advocates (Remuneration) (Amendment) Order, 2014 was premised on an error of principle on the part of the taxing master and could not be justified, characterizing the respondent's arguments as a sham given that subordinate courts had no jurisdiction over employment matters at the time of filing on 27th July 2013. Thus, it argued that it is in the interest of justice that the ruling of the taxing master delivered on 19th June 2025 be set aside. 15.On the second issue, the applicant submitted that the taxing master made an error of principle by taxing the advocate/client bill of costs under schedule 7 instead of schedule 6 of the Advocates (Remuneration) (Amendment) Order, 2014, under which the bill was drawn, thereby necessitating the setting aside of the ruling dated 19th June 2025. 16.It was further submitted that a comparison of the two rulings delivered by the taxing master on 16th February 2024 on the party and party bill and on 19th June 2025 on the advocate/client bill reveals no clear distinction, both awarding an identical sum of Kshs. 172,340, which contravenes the provisions of schedule 6B(b), or as applied in the two rulings, schedule 7B(b). The applicant argued that the advocate/client bill of costs ought to be taxed afresh. 17.On costs, the applicant submitted that it is trite law that costs follow the event and are granted at the discretion of the court, relying on section 27 of the Civil Procedure Act, which provides that the costs of and incidental to all suits shall be in the discretion of the court, and that costs shall follow the event unless the court or judge shall for good reason otherwise order. 18.In support thereof, the applicant relied on Peter Muriuki Ngure v Equity Bank (K) Ltd [2018] eKLR, where the court, citing Justice (Rtd) Kuloba's Judicial Hints on Civil Procedure, held:“The words 'the event' mean the result of all the proceedings to the litigation... the expression 'the costs shall follow the event' means that the party who on the whole succeeds in the action gets the general costs of the action, but that, where the action involves separate issues, whether arising under different causes of action or under one cause of action, the costs of any particular issue go to the party who succeeds upon it." Respondent’s Submissions 19.The respondent submitted on two issues: whether the taxing master acted without jurisdiction in applying schedule VII instead of schedule VI; whether the taxing master committed an error in principle warranting interference by this honourable court; and whether the reference satisfies the threshold under paragraph 11 of the Advocates (Remuneration) Order. 20.On the first issue, the respondent submitted that the applicant's allegation that the taxing master reviewed the judgment of the Employment and Labour Relations Court and wrongly applied schedule VII is legally untenable. 21.It was submitted that the taxing master properly exercised statutory discretion under order 58. This was not a “review” of judgment but a lawful application of the Remuneration Order, as there was no jurisdictional error. He argued that in the instant application, the decretal sum awarded in ELRC Cause No. 1378 of 2013 was Kshs. 202,800, which the taxing master expressly found did not exceed Kshs. 207,800, a sum that clearly falls within the pecuniary jurisdiction of a subordinate court. 22.On the second issue, the respondent submitted that it is settled law that a Judge will only interfere with taxation where: the taxing master acted on a wrong principle; the award is manifestly excessive or manifestly low; or there is misdirection on the applicable law. 23.It was submitted that the taxing master considered both schedule 6 and order 58, gave detailed reasons for taxing specific items, assessed each impugned item individually, and provided mathematical justification for the amounts taxed off, demonstrating careful application of discretion. 24.It is the respondent’s submission that the applicant merely disagrees with the outcome and that a disagreement with quantum does not constitute an error in principle. 25.On the final issue, the respondent submitted that the applicant's argument that the advocate/client bill ought to mirror the party and party bill taxed at Kshs. 172,340 under schedule 6B(a) is misconceived. 26.It was submitted that party and party costs and advocate/client costs are governed by different considerations; taxation of one does not automatically bind taxation of the other, and each bill must be assessed independently on its own merits. Therefore, the taxing master was under no legal obligation to replicate the earlier taxation. 27.The respondent submitted that although the applicant complains that Kshs. 45,000 was taxed off item 1, Kshs. 10,000 taxed off item 2, and several other items were not allowed as drawn, the taxing master gave express reasons for each. Further, the amounts allowed were within his discretion, and no mathematical or legal error has been demonstrated. 28.It was submitted that no misapplication of schedule provisions has been proved and that the reference lacks specificity, merely listing dissatisfaction without demonstrating how the taxing master misapplied the law. 29.The respondent submitted that the applicant's allegation that reasons were not supplied is unfounded, as the ruling dated 19th June 2025 contains detailed reasoning and the law does not require separate reasons where they are already contained in the ruling itself. Thus, the applicant's request for reasons was unnecessary. 30.The respondent submitted that the taxing master exercised his discretion judiciously and in accordance with the applicable statutory provisions, and that this reference seeks a re-evaluation of taxation and invites the court to substitute its own discretion for that of the taxing master without demonstrating any error in principle. It was submitted that such an approach defeats the purpose of taxation and amounts to an attempt to re-litigate the bill. 31.The respondent submitted that the applicant has failed to demonstrate any jurisdictional error, any error in principle, any misdirection in law, or any manifest excess or insufficiency, and that the taxing master properly applied order 58 of the Advocates (Remuneration) Order in the lawful exercise of his discretion. 32.I have examined all the averments and submissions of the parties herein. This reference is raised on the grounds that the taxing master erred in law by taxing this cause under schedule 7 of the Advocates (Remuneration) (Amendment) Order, 2014 which applies to subordinates courts instead of schedule 6 applicable to the High Court under which the bill was drawn. 33.The applicant also avers that the taxing master did not give reason for the decision made. I have looked at the ruling of the taxing master dated 19th June 2025. The taxing master explained himself on the ruling and indicated why he chose to tax the bill under schedule 7 instead of schedule 6. He also explained why he taxed off certain amounts as compared to others. The ruling is therefore explanatory as to the reasons therein. 34.It is however apparent that there is an error to the record. The Cause herein was filed in 2013. At the time, the Magistrate’s Courts did not have jurisdiction to handle employment cases. Only the ELRC was handling the causes until jurisdiction was donated in 2018. 35.The cause having be filed in the said period and having been filed before the ELRC, (read High Court) the schedule for taxation that should apply is schedule 6 which is applicable to the High court. 36.It is therefore my finding that the application before me has merit. I therefore allow the application and remit the bill back for taxation before a different Deputy Registrar who should proceed to tax the bill under the relevant schedule. Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JUNE, 2026.HELLEN WASILWAJUDGE