[2022] KEELC 2325 (KLR)
The court found that the respondents were properly served and did not dispute the certificate of taxation. Under Section 51(2) of the Advocates Act, the certificate is final as to the amount unless set aside, and the court may enter judgment for the certified sum. The court also considered Regulation 7 of the...
Source-derived case information.
- Citation
- [2022] KEELC 2325 (KLR)
- Parties
- Applicant: Daniel Ochieng Ogola t/a Ogola Okello & Co. Advocates; Respondent: Irene Atieno Ajwang t/a Highflash Investments and Consultancy; Respondent: David Sila Sulwey
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 049 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Judgment on Taxed Costs
- Outcome
- Application allowed in part; judgment entered for applicant for taxed costs; interest declined; each party to bear own costs.
- Judges
- EK Wabwoto
- Legal Topics
- Taxation of Costs, Certificate of Taxation, Interest on Costs, Advocate Client Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Ochieng Ogola t/a Ogola Okello & Co. Advocates
Applicant
Irene Atieno Ajwang t/a Highflash Investments and Consultancy
Respondent
David Sila Sulwey
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Judgment on Taxed Costs
Legal Issues
- 1 Whether judgment should be entered for the applicant against the respondents for the taxed and certified costs as per the certificate of taxation.
- 2 Whether the applicant is entitled to interest on the taxed costs under Regulation 7 of the Advocates (Remuneration) Order.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court found that the respondents were properly served and did not dispute the certificate of taxation. Under Section 51(2) of the Advocates Act, the certificate is final as to the amount unless set aside, and the court may enter judgment for the certified sum. The court also considered Regulation 7 of the Advocates (Remuneration) Order regarding interest, holding that interest can only be awarded if a claim for interest was raised after one month from delivery of the bill and before payment. As there was no evidence that the applicant demanded interest, the claim for interest was declined. On costs, the court exercised its discretion, noting the respondents did not resist the...
Court Disposition
Application allowed in part; judgment entered for applicant for taxed costs; interest declined; each party to bear own costs.
Orders
- Judgment be entered in favour of the applicant against the respondents for Ksh 192,225.40.
- The claim for interest is declined.
Full Case Text
Judgment text and source record
28 paragraphs
Advocates v Consultancy & another (Environment and Land Miscellaneous Application 049 of 2019) [2022] KEELC 2325 (KLR) (Environment and Land) (7 July 2022) (Ruling)
Neutral citation: [2022] KEELC 2325 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment and Land
Environment and Land Miscellaneous Application 049 of 2019
E K Wabwoto, J
July 7, 2022
Between
Daniel Ochieng Ogola t/a Ogola Okello & Co. Advocates
Applicant
and
Irene Atieno Ajwang t/a Highflash Investments and Consultancy
1st Respondent
David Sila Sulwey
2nd Respondent
Ruling
1. This is a ruling in respect Notice of Motion dated 8th September, 2021 by the Applicant under the provisions of Section 44, 51(1) and 51(2) of the Advocates Act. The application seeks orders that judgment be entered against the Respondents for Kshs. 192, 225. 40/- being the taxed and certified costs and interest therein.
2. The Application is based on the grounds on the face of the same and the Supporting Affidavit of Christopher Ochieng Advocate sworn on 8th September, 2021. The grounds advanced in support of the Application are that the Advocate bill of costs was taxed on 15th April 2021 and that the order of this Court adopting the Certificate of Taxation as a judgment and subsequently as a decree of the court is necessary to enable execution by the Applicant.
3. Pursuant to the directions of this Court issued on 24th April 2022, the Court directed the Application be canvassed through written submissions. The parties were given timelines within which to file and exchange their respective submissions. The material on record shows that the Applicant filed their written submissions dated 5th May 2022 while the Respondent’s submissions were not on record by the time of preparation of this Ruling.
4. I have considered the written submissions, the Application and the Supporting Affidavit. Section 51 (2) of the Advocates Act provides that,“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 sum certified to be due with costs.”
5. In this matter, I find that the Respondents was properly served with the Application and as such having not disputed the Certificate of Taxation dated 30th July 2021, this Court will therefore enter judgment against the Respondent for the said taxed costs of Kshs. 192,225. 40/=
6. As to the interest, Regulation 7 of the Advocates (Remuneration) Orders provides that,“7. An advocate may charge interest at 14 per cent per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, provided such claim for interest is raised before the amount of the bill has been paid or tendered in full.”
7. The wording of this regulation is clear that for an Advocate to charge interest, there must have lapsed a period of one month after the bill was delivered to the Client. The regulation is also specific that the claim for interest should have been raised. Regulation 7 provides that the bill must not only be served but a claim for interest should also be raised by the Applicant. There is no evidence that such interest was demanded. In such a case, I am not able to make an award for interest.
8. On the issue of costs, courts have ultimate discretion. In exercising this discretion, courts must not only look at the outcome of the case but also the circumstances of each case. The Respondents did not resist the application and in the circumstances, I will spare them costs and direct that each party to bear own costs of these proceedings.
9. Consequently, the application therefore stands allowed as follows:i.Judgment be entered in favour of the Applicant against the Respondents for Ksh 192,225. 40/=ii.The claim for interest is declined.iii.Each party to bear its own costs of the application.
10. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF JULY 2022E. K. WABWOTOJUDGEIn the presence of: -Mr. Ochieng for the Applicant.N/A for the Respondent.Court Assistant; Caroline Nafuna.E. K. WABWOTOJUDGE