[2021] KEHC 4536 (KLR)
The court found that the Certificate of Costs issued on 21st January, 2021, had not been challenged or set aside by the respondent, and the statutory period for filing an objection had lapsed. Section 51(2) of the Advocates Act provides that such a certificate is final as to the amount of costs. The applicant was...
Source-derived case information.
- Citation
- [2021] KEHC 4536 (KLR)
- Parties
- Applicant: Annet Nyakuri t/a Annet Mumalasi & Co. Advocates; Respondent: Kenya National Union of Teachers (KNUT)
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 29 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Adoption of Certificate of Costs and Entry of Judgment
- Outcome
- Application allowed. Certificate of Costs adopted. Judgment entered for applicant. Decree to issue for execution.
- Judges
- SN Riechi
- Legal Topics
- Taxation of Costs, Certificate of Taxation, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Annet Nyakuri t/a Annet Mumalasi & Co. Advocates
Applicant
Kenya National Union of Teachers (KNUT)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Adoption of Certificate of Costs and Entry of Judgment
Legal Issues
- 1 Whether the Certificate of Costs dated 21st January, 2021 should be adopted as a judgment of the court.
- 2 Whether the applicant is entitled to judgment and decree for the taxed costs against the respondent.
Ratio Decidendi
The court found that the Certificate of Costs issued on 21st January, 2021, had not been challenged or set aside by the respondent, and the statutory period for filing an objection had lapsed. Section 51(2) of the Advocates Act provides that such a certificate is final as to the amount of costs. The applicant was therefore entitled to have the certificate adopted as a judgment of the court and to obtain a decree for execution. There was no legal or procedural bar to granting the orders sought, and the respondent, having failed to oppose the application or file a reference, could not resist the entry of judgment. The court accordingly adopted the certificate, entered judgment for the...
Court Disposition
Application allowed. Certificate of Costs adopted. Judgment entered for applicant. Decree to issue for execution.
Orders
- The Certificate of Taxation dated 21st January, 2021 is adopted as a judgment of the court.
- Judgment is entered for the applicant in the sum of Kshs. 403,981.70 as per the Certificate of Taxation.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISC. CIVIL APPLICATION NO. 29 OF 2020
ANNET NYAKURI T/AANNET MUMALASI &CO. ADVOCATES............APPLICANT
VERSUS
KENYA NATIONAL UNION OF TEACHERS (KNUT)..............................RESPONDENT
R U L I N G
By Notice of Motion dated 2nd February, 2021 the Applicant sought to have the Certificate of Costs dated 21st January, 2021 adopted, judgement entered against the respondent in the sum of Kshs.403,981. 70 and decree issued in terms of the taxed costs for execution purposes.
The application is based on the grounds on the face of the application and supported by the annexed affidavit of the applicant.
The application was unopposed.
The application was canvassed by way of written submissions.
The Applicant filed their written submissions in support of the application. The applicant in her submissions submits that under Section 51 (2) of the Advocates Act a Certificate of Costs that has not been varied or set aside remains final and the advocate has a right to recover the same from the client concerned. She submits that the Certificate of Costs was issued on 21st January, 2021 and the time line for filing an objection has lapsed whereas no objection or refence has been filed. That the Notice of Motion is meant to translate the Certificate of Costs into an instrument capable of execution. She relied in the case of Nyabena Alfed t/a Nyabena Nyakundi & Company Advocates v Tourism Promotion Limited t/a Serena hotel [2018] eKLR in support of her submissions.
The Respondent did not file submissions to the application.
I have considered the application and the applicants’ submissions on record, the issue to be determined is whether the application is merited.
Section 51(2) of the Advocates Acts is the applicable provision where costs have been taxed and an applicant wishes to obtain a decree for execution. It stipulates:
The certificate of a taxing officer by whom it 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.
From the above provision, it is clear that a party can move the court for judgement to be entered in terms of the taxed costs. A general rule of practice by advocates is to file applications by way of Notice of motion such as the current application moving the court to enter judgment after taxation of their bills of costs and issuance of certificate of taxation. There is no obligation on the part of the advocate who has had his costs taxed by a taxing officer, to file a fresh suit for recovery of the taxed costs and where a certificate of taxation issued .This procedure ensures expedition since the certificate of costs once issued is final as to the amount of the costs covered and what then remains is for the court to pronounce itself, on an application for judgment, where there is no dispute and order that judgment be entered for the sum of as per the certificate of costs.
In the present case the advocate filed a bill of costs dated 1st February 2020 against the client and served it upon the client for taxation but the client did not attend the taxation. The Taxing Master Mr. E.N. Mwenda assessed the bill on 17st December, 2020 at Kshs. 403,981. 70.
The Certificate of Taxation was issued on 21st January 2021 but to date no reference was filed by the client challenging the taxation. Clearly, there is no indication that the client is interested in moving the court on a Reference against the Certificate of Taxation.
Therefore, the application by the applicant is merited. The court therefore adopts the Certificate of taxation dated 21st January, 2021, enter judgment for the applicant in terms of the Certificate of Taxation and direct that decree be drawn in terms of the taxed costs for executions in the usual manner of an order of the court
The Respondent should bear the costs of the application.
DATED AND SIGNED AT BUNGOMA THIS 30TH DAY JULY, 2021.
S N RIECHI
JUDGE