[2023] KEHC 25983 (KLR)

Abdi ((Suing as the representative of the of the Estate of Aden Rashid Abdi)) v Kenya Wildlife Services (Miscellaneous Application E012 of 2021) [2023] KEHC 25983 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25983 (KLR)

Republic of Kenya

In the High Court at Garissa

Miscellaneous Application E012 of 2021

JN Onyiego, J

November 17, 2023

Between

Farah Rashid AbdiI

Plaintiff

(Suing as the representative of the of the Estate of Aden Rashid Abdi)

and

Kenya Wildlife Services

Defendant

Judgment

1. The application before the court is dated 15. 09. 2022 wherein the applicant seeks for orders that:i.This Honourable Court be pleased to enter judgment for the applicant against the respondent for the sum of kes 636,550. 00/- as per the Certificate of Taxation dated 01. 08. 2022 with interest from the date of the Certificate of Taxation until payment in full.ii.The applicant be allowed to execute the judgment herein against the respondent.iii.Costs of the application be awarded to the applicant.

2. The application is premised on the grounds particularized on its face and further supported by the affidavit of Dennis Juma sworn on September 2022.

3. The applicant’s case is hinged on the fact that he filed a bill of costs dated 05. 10. 2021 which was taxed by the Deputy Registrar of this Court and a Certificate of Taxation dated 01. 08. 2022 issued. He averred that the said Certificate of Taxation was served upon the respondents through their advocates on record on 03. 08. 2022 and that the respondent did not challenge the same. It was his evidence that the respondent has failed to pay the amounts in dispute despite several demands to do so. That the interest of justice demands that the application herein be allowed.

4. The court gave directions that the application be heard on 21. 09. 2023 but upon reaching the very day, the respondent failed to show up despite being served with the said hearing notice.

5. The applicant stated that he filed the application herein and the same was taxed at kes 636,550/- and therefore, it was prayed that a judgment be entered in the said sum against the respondent.

6. I have considered the application herein and the oral submissions by the applicant the sole issue for determination in this application is whether the orders sought herein should issue.

7. The applicant filed an Affidavit of Service sworn on 24. 07. 2023 by James Wahome proving that the respondent was served with the Hearing Notice of the Application herein. The respondent, although served, did not attend or send a representative for the hearing of the motion. The application is therefore not opposed. Although the application is not opposed, the applicant is under obligation to prove that the application is merited. The application does not automatically succeed simply because it is not opposed. See... Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR.

8. The law is clear as to the nature and effect of Certificate of Taxation, as pointed out by the applicant herein. Section 51 (2) of the Advocates Act Provides as follows:“(2)the certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the

9. This position was reiterated in Lubulellah & Associates Advocates v N K Brothers Limited [2014] eKLR where the court observed that;“The law is very clear that once a taxing master has taxed the costs, issued a Certificate of costs and there is no reference against his ruling or there has been a ruling and a determination made and not set aside and/or altered, no other action would be required from the court save to enter judgment.An applicant is not required to file suit for the recovery of costs. The certificate of costs is final as to the amounts of the costs and the court would be quite in order to enter judgment in favour of the Applicant against the Respondent herein for the taxed sum indicated in the Certificate of Taxation that was issued on 12. 09. 2022. ”

10. The Court takes into consideration that the Certificate of Taxation dated 01. 08. 2022 has not been set aside or impugned by this court.

11. Having found that there has been no reference against the costs awarded, and that the respondent has not at all demonstrated, or sought to demonstrate, that it was improperly excluded from the taxation process of the Bill of Costs; I am satisfied that it is proper to order that judgment be entered in favour of the applicant and a decree be issued in respect of the said Certificate of Taxation for kes 636,550/-.

12. On the issue of interests on the taxed costs, Rule 7 of the Advocates (Remuneration) Order stipulates that:“An advocate may charge interest at 14% per annum on his disbursements and costs, whether by scale or otherwise, from the expiry to one month from the delivery of his bill to the client, providing such claim for interest is raised before the amount has been paid or tendered in full.”

13. For those reasons, the applicant is awarded interest at court rates only on the costs and disbursements from the date of taxation.

14. Needless to state that, execution or attachment enforcing the decree can only be in accordance with the provisions Section 21(4) of the Government Proceedings Act Cap 40 Laws of Kenya. Therefore, this prayer is found to be premature and improper.

15. In the light of the foregoing this court makes the following findings and determinations:i.The application is found to be partially meritorious;ii.The Taxation Order made on 29. 07. 2022 for the sum of kes 636,550/- be and is hereby adopted as a judgment and decree of the Court.iii.The claim for interest shall be only on the disbursement and costs and shall be at 14% from the date of taxation till payment in full.iv.The prayer for execution of the decree is found to be premature and improper and it is hereby disallowed.v.The applicant shall have the costs of the application herein.

DATED, SIGNED AND DELIVERED VIRTUALLY AT GARISSA THIS 17TH DAY OF NOVEMBER 2023. ……………………J. N. ONYIEGOJUDGE