[2019] KEHC 2621 (KLR)
The court found that the advocate was duly retained by the client and acted in Kisumu CA No. 22 of 2018, for which costs were taxed. There was no dispute as to retainer, and the certificate of taxation had not been set aside or altered. Under Section 51(2) of the Advocates Act, judgment could be entered on the...
Source-derived case information.
- Citation
- [2019] KEHC 2621 (KLR)
- Parties
- Applicant: Alice Nyomenda Oeri t/a A.N. Oeri & Co. Advocates; Respondent: Silvanus Osoro Onyiego
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 55 of 2019
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Judges
- TW Cherere
- Legal Topics
- Advocate Client Costs, Certificate of Taxation, Judgment Entry, Interest on Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Nyomenda Oeri t/a A.N. Oeri & Co. Advocates
Applicant
Silvanus Osoro Onyiego
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether judgment should be entered for the advocate against the client based on a certificate of taxation that has not been set aside or altered.
- 2 Whether interest on the taxed costs is payable and from which date.
Ratio Decidendi
The court found that the advocate was duly retained by the client and acted in Kisumu CA No. 22 of 2018, for which costs were taxed. There was no dispute as to retainer, and the certificate of taxation had not been set aside or altered. Under Section 51(2) of the Advocates Act, judgment could be entered on the certificate. The court also found that interest at 14% per annum was payable from one month after the bill was served, as provided by Rule 7 of the Advocates Remuneration Order. Since the bill was served on 9th May 2019, interest was to accrue from 9th June 2019. The application was unopposed, and the advocate was entitled to judgment as sought, including interest and costs of the...
Court Disposition
application allowed
Orders
- Judgment is entered for the advocate against the respondent for Kshs. 4,058,501.80.
- Interest shall accrue on the taxed costs at 14% per annum from 9th June, 2019 until payment in full.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
MISC. APPLICATION NO 55 of 2019
BETWEEN
ALICE NYOMENDA OERIT/A A.N.OERI & CO. ADVOCATES..........ADVOCATE
AND
SILVANUS OSORO ONYIEGO...........................................................................CLIENT
JUDGMENT
1. By a notice of motion dated 24th July, 2019 and filed on 25th July, 2019, brought under Section 51 (2) of the Advocates Act Cap 16 Laws of Kenya (hereinafter referred to as the Act), the Advocate prays for orders:
1) THAT judgment be entered and a decree do issue for the sum of Kshs. 4. 058,501. 80 as certified by the Deputy Registrar per certificate of costs dated 03rd July, 2019 with interest at court rates from 03rd July, 2019 until payment in full
2. The motion is premised on the grounds the advocate was retained by the client to act in KISUMU CA NO. 22 OF 2018 DENNIS MAGARE MAKORI & ANOR V IEBC & 3 OTHERS and has failed to pay the advocate’s fees.
3. When the application came for hearing on 25th September, 2019 and 15th October, 2019 the client, though served on 09th September, 2019 and 08th October, 2019 respectively did not file a response to the application or send a representative. The application is therefore unopposed.
4. Section 51 of the Act makes general provisions for entry of judgment on a Certificate of Taxation which has not been set aside or altered where there is no dispute as to retainer.
5. In the present case, there is no allegation that the Advocate had no instructions to act for the client in The Advocate avers that he acted for the Appellants in KISUMU CA NO. 22 OF 2018 DENNIS MAGARE MAKORI & ANOR V IEBC & 3 OTHERS for which costs were taxed. The Certificate of Taxation has not been set aside or altered and I see no reason to deny the Advocate, judgment as sought.
6. I have considered the provisions of Rule 7 of the Advocates Remuneration Order which provides for interest at 14% 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, providing such claim for interest is raised before the amount of the bill has been paid or tendered in full. In an affidavit of service filed on 03rd June, 2019, Leonard Kimanzi Ndewa avesr that the bill was served on the client on 09th May, 2019. Interest is therefore payable from 09th June, 2019.
7. The upshot of this is that the notice of motion dated 24th July, 2019 succeeds and is allowed in the following terms:
a) Judgment is hereby entered for the advocate against the Respondent for Kshs. 4. 058,501. 80
b) Interest shall accrue on the taxed costs at 14% per annum from 09th June, 2019 until payment in full
c) The Advocate will also have the costs of this application.
DATED AND DELIVERED IN KISUMU THIS 17thDAY OF OCTOBER 2019
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Amondi
For the Advocate - N/A
For the Client- N/A