[2018] KEELRC 1399 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 914 OF 2016

ELIAS MAINA KARUMI CLAIMANT

v

KENYA PIPELINE COMPANY LIMITED RESPONDENT

RULING

1. In a ruling delivered on 26 July 2016, the Court vacated a decision by Kenya Pipeline Company Ltd (Respondent) sending Elias Maina Karumi (applicant) on early retirement.

2. On 5 May 2017, the Taxing Officer taxed the applicant’s party and party bill of costs in the sum of Kshs 234,585/- (instructions fee was allowed at Kshs 97,000/-.

3. The applicant was aggrieved with the taxation and he filed a Reference.

4. The Court allowed the Reference on 26 April 2017 and directed that taxation be taken afresh before a different Taxing Officer.

5. In a ruling delivered on 31 January 2018, the new Taxing Officer allowed the bill at Kshs 228,160/- (the instructions fees was allowed again at Kshs 97,000/- while items 2, 3 and 71 was taxed off completely on the basis that the bill was a party to party bill of costs and not an advocate/client bill of costs).

6. The applicant was aggrieved again and on 15 March 2018 he filed a Summons seeking orders

1. THAT the entire re-taxation decision of the taxing officer dated and delivered on the 31st January 2018 be set aside and/or vacated.

2. THAT this Honourable Court be pleased to re-tax the Advocate/Client bill of costs dated 26th November 2016.

3. THAT the costs of this application be provided for.

7. The Respondent filed grounds of opposition to the application on 11 April 2018.

8. When the application came up for hearing on 12 April 2018, the Court directed that it be determined by way of the record and submissions to be filed.

9. The applicant filed his submissions on 7 May 2018 while the Respondent filed its submissions on 19 June 2018.

Contentions by the applicant

10. The applicant in support of the Reference contended that the Taxing Officer in the re-taxation erred in principle by lowering the costs allowed and that there was no jurisdiction to lower the costs; re-taxing the whole bill instead of the 3 disputed items; not considering the nature and importance of the matter; failing to allow Value Added Tax (VAT) on instruction fees; declining to allow getting up fees and that the lowering of costs showed bias and bad faith.

11. The applicant further challenged the award of Kshs 63,750/- on account of a contempt application which was filed after the Respondent failed to comply with the ruling of 26 July 2018.

12. According to the applicant, the award in regard to the contempt application was too low as this were fresh instructions.

13. The applicant was of the view that a sum of Kshs 500,000/- was modest enough to cover the costs.

Respondent’s take

14. In opposing the Reference, the Respondent took the position that the Court had ordered a fresh taxation and the Taxing Officer was therefore not bound by the conclusions by the first Taxing Officer.

15. The Respondent also contended that there was no error in principle by the Taxing Officer as the applicant had not demonstrated that the costs as allowed were so manifestly excessive or that the Taxing Officer had overemphasised (would add underemphasised) on the importance or complexity of the suit.

16. On the question of VAT, the Respondent distinguished the cases relied on by the applicant as having been founded on advocate/client bill of costs and not party and party costs.

Evaluation

17. The applicant asserted that the Taxing Officer disregarded the directions of the Court while remitting the bill for taxation.

18. The applicant also impugned the second taxation on the ground that the taxing officer went beyond the 3 items which were in dispute.

19. The Court has looked at the very brief ruling the Court on 26 July 2017 and it is in these words

In the interest of justice, parties will attend to a different taxing officer to assess the bill in full. Where not agreed take a mention date for Court’s direction.

20. The argument that only 3 items were to be subjected to re-taxation is therefore misplaced as it is not founded on any direction by the Court.

21. The whole bill was to be subjected to re-taxation as that was the implication of the Court ruling on the Reference.

22. On the question of instructions fees, the applicant contended the position he held of Chief Manager, the remuneration earned in that position, years left to retirement and the social and economic effects of the retirement constituted extremely important questions to urge that the dispute was extremely complex.

23. The Court finds nothing in the applicant’s position, remuneration or years to retirement presenting an extremely complex or important question that warranted the Taxing Officer considering as against the normal principles, which were considered by the taxing officer.

24. The Court further notes that the Taxing Officer considered the amount of monetary award which ensued from the ruling of the Court, the time it took to conclude the proceedings of about 3 months, the fact that the matter did not go to full trial and schedule 6A No. 1(b), the fact that the dispute was an ordinary dismissal Cause raising no novel points of law.

25. The applicant also faulted the Taxing Officer for failing to allow getting up fees and VAT.

26. In the Court’s view and considering that the Cause was disposed of at an interlocutory stage on the papers without hearing any witnesses and at a stage where issues had not even been joined by the filing of a Response to the Statement of Claim, the applicant cannot legitimately claim getting up fees.

27. On the question of VAT, the Taxing Officer anchored her decision to reject it on sound authority of Pyramid Motors Ltd v Langata Gardens Ltd(2010) eKLR.

28. The Taxing Officer cannot be faulted for her reliance on that authority which was binding upon her.

29. In this Court, the applicant has not even suggested that the said authority was erroneous or had been overturned on appeal.

30. As regards the costs of the contempt application which was withdrawn with costs to the Respondent without being heard, the applicant did not cite any particular provision of the Order or previous taxations to enable the Court determine whether the Taxing Officer erred in principle by allowing a manifestly low amount as costs.

31. In the view of the Court, the Reference herein has no merit and stands to be dismissed with costs to the Respondent. It is so ordered.

Delivered, dated and signed in Nairobi on this 27th day of July 2018.

Radido Stephen

Judge

Appearances

For applicant Mbugua Ng’ang’a & Co. Advocates

For Respondent Ochieng’, Onyango, Kibet & Ohaga Advocates

Court Assistant Lindsey