[2015] KEELRC 1208 (KLR)
The court found that the taxing master erred in restricting the costs to only those related to the preliminary objection. The correct approach was to award costs for the defence of the claim up to the point the 1st to 7th Respondents were struck out, including instruction fees as per scale. The court awarded Kshs....
Source-derived case information.
- Citation
- [2015] KEELRC 1208 (KLR)
- Parties
- Claimant: Ruth Gathoni Ngotho-Kariuki; Respondent: Reverend Festus K. Kitonga; Respondent: Right Reverend David Riitho Gathanju; Respondent: Reverend Francis Njoroge; Respondent: Reverend George Wanjau; Respondent: William Mwangi Wambugu; Respondent: Amon Nderi; Respondent: Presbyterian Church of East Africa; Respondent: P.C.E.A. Kikuyu Hospital; Respondent: The Registered Trustees of the Presbyterian Church of East Africa; Respondent: The Presbyterian Foundation
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 509 of 2010
- Procedural Posture
- Reference From Taxation / Ruling on Reference From Taxation After Preliminary Objection and Striking Out of Parties
- Outcome
- Reference from taxation allowed; taxing master's ruling set aside; costs awarded to 1st to 7th Respondents to scale, payment to abide outcome of appeal.
- Judges
- AN Makau
- Legal Topics
- Costs Award, Taxation of Costs, Preliminary Objection, Striking Out of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ruth Gathoni Ngotho-Kariuki
Claimant
Reverend Festus K. Kitonga
Respondent
Right Reverend David Riitho Gathanju
Respondent
Reverend Francis Njoroge
Respondent
Reverend George Wanjau
Respondent
William Mwangi Wambugu
Respondent
Amon Nderi
Respondent
Presbyterian Church of East Africa
Respondent
P.C.E.A. Kikuyu Hospital
Respondent
The Registered Trustees of the Presbyterian Church of East Africa
Respondent
The Presbyterian Foundation
Respondent
Procedural Posture
Reference From Taxation / Ruling on Reference From Taxation After Preliminary Objection and Striking Out of Parties
Legal Issues
- 1 Whether the taxing master erred in refusing to grant costs as per scale to the 1st to 7th Respondents after their names were struck out on a preliminary objection.
- 2 Whether the costs awarded should be limited to the preliminary objection or include instruction fees for defending the claim.
Ratio Decidendi
The court found that the taxing master erred in restricting the costs to only those related to the preliminary objection. The correct approach was to award costs for the defence of the claim up to the point the 1st to 7th Respondents were struck out, including instruction fees as per scale. The court awarded Kshs. 250,000 as costs, noting that payment would abide the outcome of any appeal, allowing for set-off if necessary. The ruling thus set aside the taxing master's decision and substituted it with an award of costs to scale.
Court Disposition
Reference from taxation allowed; taxing master's ruling set aside; costs awarded to 1st to 7th Respondents to scale, payment to abide outcome of appeal.
Orders
- The ruling of the taxing officer is set aside.
- Costs of Kshs. 250,000/- awarded to the 1st to 7th Respondents as per scale.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 509 OF 2010
RUTH GATHONI NGOTHO-KARIUKI………..................................…CLAIMANT
VERSUS
REVEREND FESTUS K. KITONGA………………….……..1ST RESPONDENT
RIGHT REVEREND DAVID RIITHO GATHANJU........…….2ND RESPONDENT
REVEREND FRANCIS NJOROGE …………………..……3RD RESPONDENT
REVEREND GEORGE WANJAU………………….….……4TH RESPONDENT
(SUED ON THEIR OWN BEHALF AND ON BEHALF OF
THE PRESBYTERIAN CHURCH OF EAST AFRICA…...…5TH RESPONDENT
WILLIAM MWANGI WAMBUGU………………….…….…6TH RESPONDENT
AMON NDERI…………………………..………...…...……7TH RESPONDENT
(SUED ON THEIR OWN BEHALF AND ON BEHALF
OF P.C.E.A. KIKUYU HOSPITAL……………….…………8TH RESPONDENT
THE REGISTERED TRUSTEES OF THE PRESBYTERIAN
CHURCH OF EAST AFRICA…………………….…....……9TH RESPONDENT
THE PRESBYTERIAN FOUNDATION……………....……10TH RESPONDENT
RULING
The 1st to 7th Respondents/Applicants referred the matter to Court under Chamber summons for a Reference from Taxation dated 28th August 2012.
Mr. Amuga submitted that the 1st to 7th Respondent’s names were struck out with costs by Kosgey J. after a preliminary objection was raised and the taxing declined to grant costs as per scale on the claim for Kshs. 9 million plus. He submitted that the refusal by the taxing master to grant costs was erroneous. The award of costs was not indicated to be one that would abide the outcome of the case against the remaining Respondents. Mr. Amuga submitted that the taxing master only allowed the costs related to the preliminary objection under items 15, 16, 17, 18, 19, 33, 34 and 37. He submitted that the Respondents were entitled to the instruction fees to defend the claim, attending Court until the striking of the claim against them. He thus sought the setting aside of the Ruling of the taxing officer and allow costs as drawn to scale.
The Claimant/Respondent did not attend in spite of service.
I have perused the Bill of Costs as well as the Ruling of the taxing master. The Ruling by Kosgey J on the preliminary objection was to the effect that the preliminary objection was upheld and the suit against the 1st to 7th Respondents struck out with costs.
In my view, the costs were for the defence of the claim and were not limited to the preliminary objection. I thus would award costs of Kshs. 250,000/- which is to scale. I however note there is an intended appeal or appeal preferred. The payment of these costs will thus abide the outcome of the Appeal as the sums could be netted off the sums awarded.
Orders accordingly.
Dated and delivered at Nairobi this 9th day of February 2015
Nzioki wa Makau
JUDGE