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ELRCPartially AllowedReference dated 20th February 2024 ( miscellaneous cause in which the earlier Reference was filed)

Momanyi t/a Nchogu, Omwanza and Nyasimi Advocates v Kenyatta National Hospital (Miscellaneous Application 21 of 2019) [2025] KEELRC 1934 (KLR)

Employment and Labour Relations Court
30 June 2025
4,731 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court set aside huge legal fees against KNH because the Taxing Master wrongly valued the case from pleadings instead of the judgment.

What this practically means

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Executive summary

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Kenyatta National Hospital (the Applicant) filed a Reference challenging a Taxation Order issued on 22nd January 2024 by the Taxing Master, Hon. Mbeja, by which the Respondent advocates' Bill of Costs dated 29th January 2019 was taxed at Ksh. 358,491,673.32. The Bill had earlier been taxed at Ksh. 22,436,357.45, but the court (Maureen Onyango J) set that order aside on 12th May 2020 and remitted the Bill for re-taxation before a different Taxing Master. The Applicant contended that the new Taxation Order was inordinately excessive and based on an error of principle, because the Taxing Master valued the subject matter from the pleadings in the parent suit notwithstanding that judgment had been entered. The Respondent objected on jurisdictional and procedural grounds and defended the award. The court held that time had been validly enlarged and that filing the second Reference in the spent miscellaneous cause was a procedural misstep cured under Article 159(1)(d). On the merits, applying Joreth, Peter Muthoka and Kenya Airports Authority v Otieno Ragot, the court held that post-judgment taxation requires recourse to the judgment, not pleadings, and that the earlier Judge's determination on valuation was res judicata. Further, the pleaded figures (contested proposed CBA increments) could not represent the subject matter value without more; the Taxing Master should have exercised discretion. The Taxation Order was set aside only as respects instruction and getting up fees (items 1 and 2), with items 3 to 24 sustained, and the two items remitted for re-taxation before a different Taxing Master. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court has jurisdiction over the Reference filed out of time
  2. 2.Whether the Reference is defective for having been filed in the same miscellaneous cause as the earlier, spent Reference
  3. 3.Whether the Taxing Master committed an error of principle by relying on the pleadings in the parent suit, rather than the judgment, to determine the value of the subject matter
  4. 4.Whether the Taxing Master could rely, without more, on contested pleaded figures (proposed CBA increments) as representative of the value of the subject matter
  5. 5.Whether the Taxing Master's decision on items 3 to 24 of the Bill of Costs should be disturbed

Key legal issues

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01

Jurisdiction over an out-of-time Reference

Holding

The court was seized of jurisdiction because it had already enlarged time for filing the Reference.

Reasoning

Although the Reference was filed out of time, the challenge to that lateness was resolved when the court granted leave to regularize the papers through its ruling dated 31st October 2024. With time enlarged, the Reference was properly before the court and the jurisdictional objection fell away.

p. 2
02

Filing a second Reference in a closed miscellaneous cause

Holding

A procedural misstep cured under Article 159(1)(d) of the Constitution; the Reference was treated as properly before the court.

Reasoning

Ideally the Applicant should have filed a fresh Reference through a new miscellaneous cause once the first Reference was spent. However, filing in the same cause was a procedural technicality; the registry had admitted the application, and the Constitution obligates the court not to pay undue regard to procedural technicalities. The substance of the dispute was therefore entertained.

p. 3
03

Error of principle in using pleadings instead of the judgment to value the subject matter

Holding

The Taxing Master committed an error of principle; the earlier ruling had settled that the value could not be ascertained from the judgment and that the Taxing Master should exercise discretion, and in any event post-judgment taxation requires recourse to the judgment, not pleadings.

Reasoning

The Judge in the first Reference had endorsed the Taxing Officer's view that the value could not be ascertained from the judgment and that discretion should apply; that determination was res judicata and bound the second Taxing Master. Further, under Peter Muthoka and Kenya Airports Authority v Otieno Ragot, once judgment has been entered recourse is not had to pleadings. Resorting to the pleadings was therefore amenable to being set aside.

p. 6
04

Reliance on contested pleaded figures without more

Holding

Contested proposed CBA increment figures were not representative of the value of the subject matter; the Taxing Master should have exercised his discretion.

Reasoning

The figures used were proposed but contested increments in a draft CBA. The trial judge in the parent suit declined to impose them and directed the parties back to the negotiating table, so the judgment neither affirmed nor rejected them. Unadjudicated proposals cannot represent the true value of the subject matter; instruction and getting up fees should have been assessed by way of judicial discretion.

p. 7
05

Items 3 to 24 of the Bill of Costs

Holding

The Taxing Master gave reasons (items drawn to scale) and no wrong principle was demonstrated; his decision on those items was sustained.

Reasoning

The Applicant contended the Taxing Master gave no reasons for items 3 to 24, but the ruling shows he allowed them as presented because the Bill was drawn to scale under Schedule VI Parts A and B of the Advocates Remuneration Order 2014. Absent demonstration of a wrong principle of law, the court declined to interfere.

p. 8

Legal principles established

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  • The stage at which a Bill of Costs is presented determines the indicator for subject matter value: pleadings before judgment; judgment or settlement thereafter
  • A court's earlier determination of how the value of the subject matter is to be ascertained is res judicata and binds the Taxing Master in a subsequent taxation
  • The mere mention of a figure in pleadings does not, per se, determine the value of the subject matter for taxation
  • A court will not interfere with a Taxing Master's decision unless it is shown to be based on a wrong principle of law

Court orders

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  1. 1.A declaration that the Taxing Master proceeded on the wrong principles of law in assessing items 1 and 2 (instructions fees and getting up fees) in the Respondent's Bill of Costs dated 29th January 2019
  2. 2.Setting aside of the Taxation Order of 22nd January 2024 in respect of items 1 and 2 only
  3. 3.Sustaining of the Taxing Master's ruling of 22nd January 2024 in respect of items 3 to 24
  4. 4.The Bill of Costs to be placed before a Taxing Master other than the two who handled the previous taxations, for taxing items 1 and 2 only
  5. 5.The Taxing Master to take into account the pronouncements in this ruling whilst assessing the two items
  6. 6.VAT and the one-half increment of advocates' fees under Part B of the Advocates Remuneration Order to be adjusted accordingly upon re-taxation
  7. 7.Each party to bear own costs for the Reference

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Reference against a Taxation Order under the Advocates Remuneration Order; court seized of jurisdiction following enlargement of time granted in its ruling dated 31st October 2024

Relief refused

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Setting aside of the Taxation Order in respect of items 3 to 24 of the Bill of Costs

The Applicant did not demonstrate that the Taxing Master's decision on those items was based on a wrong principle of law; the items were allowed as drawn to scale

p. 8

Costs

Each party to bear own costs for the Reference

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Taxing Master proceeded on the wrong principles of law in assessing items number one (1) and two (2) on instructions fees and getting up fees in the Respondent’s Bill of Costs dated 29th January 2019.
p. 8Finding on error of principle
the Taxation Order relating to the Respondent’s Bill of Costs dated 29th January 2019 which was rendered by the Taxing Master of the court on 22nd January 2024 is set aside in respect of items number one (1) and two (2) on instructions fees and getting up fees respectively in the Bill.
p. 8Final orders - setting aside
The Taxing Master’s ruling dated 22nd January 2024 in respect of items number three (3) to twenty four (24) in the Respondent’s Bill of Costs dated 29th January 2019 is valid and thus sustained.
p. 8Final orders - sustaining items 3 to 24
Each party to bear own costs for the Reference.
p. 9Costs
Once the learned Judge expressed her agreement with the Taxing Master in the first Taxation Order regarding how the value of the subject matter in the dispute was to be determined, she (the Learned Judge) conclusively determined the issue thus rendering it res-judicata.
p. 6Res judicata on valuation methodology
the value of the subject matter of a suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case)
p. 3Joreth principle on valuation

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, "Momanyi t/a Nchogu, Omwanza and Nyasimi Advocates v Kenyatta National Hospital (Miscellaneous Application 21 of 2019) [2025] KEELRC 1934 (KLR)", Case Analysis (2025). Reference dated 20th February 2024 ( miscellaneous cause in which the earlier Reference was filed). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1934/eng@2025-06-30

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