https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1372

Ongwenyi v Ethics and Anti-Corruption Commission & 7 others (Employment and Labour Relations Petition 51 of 2014) [2026] KEELRC 1372 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1372 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Petition 51 of 2014 JW Keli, J May 15, 2026 IN THE MATER OF THE ADVOCATES ACT (CAP 16 LAWS OF KENYA) AND IN THE MATTER OF TAXATION OF BILL OF COSTS BETWEEN PARTY AND PARTY Between Henry Morara Ongwenyi Petitioner and Ethics And Anti-Corruption Commission 1st Respondent Mumo Matemu 2nd Respondent Ms. Irene Κεινο 3rd Respondent Jane Onsongo 4th Respondent Halakhe Wako 5th Respondent Michael Kamau Mubea 6th Respondent Director Of Criminal Investigations 7th Respondent Hon. Attorney General 8th Respondent Ruling 1.The 1st Respondent filed a reference dated 20th November 2025 against the decision of the Taxing Master, Hon. Thyaka dated 5th November 2025, seeking for the following Orders:-a)The Court be pleased to set aside the learned Taxing Master's decision delivered on 5th November 2025 in respect of Item 1 (Instruction Fees) and Item 2 (Getting Up Fees) of the Party and Party Bill of Costs dated 15th October 2024.b)The Court be pleased to exercise its discretion and tax Items 1 and 2 accordingly as it may deem just.c)Costs of this Reference be provided for. Grounds of the Application. 2.That this Honourable Court delivered its Judgment in this matter on 20th August 2015 reinstating the Petitioner herein and awarding him costs of the Petition. 3.That pursuant to the Order of Costs, the Petitioner herein filed a Bill of Costs dated 15th October 2024 seeking the sum of Kshs. 3,636,025.025. 4.That by a Ruling rendered on 5th November 2025, the Taxing Master (Hon. R Thyaka) taxing the Bill of Costs at Kshs Nine Hundred and Thirty-Nine Thousand Seven Hundred and Sixty-Seven (Kshs. 939,767.00) only. The Taxing Master taxed Items 1 and 2 at Kshs. 500,000.00 and Kshs. 166,667.00, respectively. 5.That the Taxing Master correctly found that the applicable paragraph is paragraph 1(j) of the Sixth Schedule which provides that Instruction Fees on filing Constitutional Petitions in the Sixth Schedule is Kshs 100,000.00. 6.That the Taxing Master also correctly found that before exercising her discretion to increase the Instruction Fees from the basic minimum of Kshs 100,000.00, she needed to consider the nature and importance of the matter, complexity or difficulty of the matter, the value, and time expended by the Advocates in handling this matter. 7.That the Taxing Master correctly found that the matter was not complex. However, she erroneously found that the matter took seven (7) years to complete and on this basis proceeded to increase the basic Instruction Fees to Kshs. 500,000, being five (5) times the minimum fee. 8.That the Taxing Master misapprehended the factual record, accepting the Petitioner's claim that the matter took seven (7) years, whereas the proceedings were concluded within one (1) year, thereby materially affecting the reasoning on "time expended." 9.That the Taxing Master also said that there were multiple Applications in this matter which impacted her exercise of discretion, yet there was only one Application for Conservatory Orders which was considered and determined by this Honourable Court before the delivery of the Judgment. Subsequent Applications were filed and dealt with by the Court including an Order for costs issued in respect of each of them as appreciated by the Court in her Ruling. 10.That, in the circumstances, the Taxing Master failed to properly apply the criteria under Paragraph 1(j) of Schedule 6A, which requires complexity, novelty, importance, value, or substantial labour to justify an increase from the minimum fee of Kshs. 100,000 to Kshs 500,000.00. 11.That the High Court and this Honourable Court has in Kenya Motor Sports Federation Ltd v McKean & Another [2023] KEHC 23729 (KLR) and County Assembly of Kericho & another v Bett & Others (2022) KEELRC 83 found that the Taxing Master has to justify the enhancement of the basic instruction fees and while at that the Taxing Master cannot increase the basic instruction fees to five times without any valid reasons. 12.That the increase of the basic instruction fees was based on a false premise, not justified and was therefore arbitrary, excessive, and constituted an error in principle, warranting this Honourable Court's interference under the established standard in First American Bank v Shah [2002] 1 EA 64, and Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR. 13.That the Honourable Taxing Officer misdirected herself by exercising discretion in a manner that was not transparent, reliable, and based on a just criterion. 14.That the 1st Respondent is a public institution established under Section 3(1) of the Ethics and Anti-Corruption Commission Act, 2011 tasked with a sacred constitutional duty to enforce Chapter Six of the Constitution. The Taxing Master failed to consider that the taxed costs are to be paid from public funds as correctly found by the Court of Appeal and the Supreme Court in Civil Appeal No. E1011 of 2024, Accounting Officer, Kenya Revenue Authority & Another v Public Procurement Administrative Review Board & 3 Others; Civil Appeal No. 164 of 2013, Mount Kenya Bottlers Ltd & 3 Others v Hon Attorney General & 3 Others; and the Supreme Court Petition No. 41 of 2019, Kenya Revenue Authority & 3 Others v Mount Kenva Bottlers Ltd & Others. 15.That in the circumstances, the Honourable Taxing Master took into consideration issues that she should not have taken into consideration and failed to consider those issues that she was bound to consider thus arriving at an erroneous decision warranting the setting aside. 16.That the consequential award of Item 2 (Getting Up Fees) at Kshs. 166,667 is equally erroneous, having been computed on an inflated and unjustified instruction fee. 17.That it is in the interest of justice that this application be allowed in its entirety. 18.The reference was opposed by the Decree Holder vide his replying affidavit dated 19th January 2026 who urged that the bill was rightly taxed , there was no prove of error in principle in the taxation and the amounts awarded were not excessive. Decision 19.The reference was canvassed by way of written submissions. Both parties filed. The issue for determination was whether there was an error in principle in the taxation. 20.One of the grounds was that the taxing master relied on false information to justify the increase of the instruction fee from the minimum Kshs. 100,000 based on misrepresentation of length of time for the conclusion of the case of 7 years when the case took only one year to a conclusion. The court confirmed that the petition was filed in court on the 28th July 2014 and judgment delivered on 19th September 2015 which is approximately 1 year and 1 month. An error in principle in the taxation on the length of time is established. 21.The Taxation Master also held that there were numerous applications, yet on perusal, there is only one ruling, meaning others were compromised. The court found the trial court erred in factoring the period post-judgment in the determination of the length of time and in holding there were several applications, thus escalating the instructions fee, which consequently affected the getting-up fee. For the foregoing reason, the award dated 5th November 2025 is set aside and the bill of costs remitted to the taxing master other than Hon. Thyaka for re-taxation of instruction fee (item 1) and getting up fee (item 2) only. I make no order as to costs. 22.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026.JEMIMAH KELIJUDGE.In the presence of:C/A OtienoApplicants- OumaPetitioner- Absent