[2019] KEHC 2296 (KLR)
The court found that the applicant advocate was entitled to judgment on the taxed costs as per the certificate of costs, since the respondent did not dispute the retainer or the amount. The bill of costs was properly served on the respondent, and there was no evidence of payment or tender. The court applied Section...
Source-derived case information.
- Citation
- [2019] KEHC 2296 (KLR)
- Parties
- Applicant: Ashioya & Company Advocates; Respondent: Rhalphael Ndakala
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 6 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Certificate of Costs
- Outcome
- application allowed
- Judges
- TW Cherere
- Legal Topics
- Advocate Remuneration, Taxation of Costs, Interest on Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ashioya & Company Advocates
Applicant
Rhalphael Ndakala
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment on Certificate of Costs
Legal Issues
- 1 Whether the certificate of costs should be deemed a judgment in favour of the advocate.
- 2 Whether the advocate is entitled to interest at 14% per annum from the date of delivery of the bill of costs.
- 3 Whether the advocate is entitled to the costs of the application.
Ratio Decidendi
The court found that the applicant advocate was entitled to judgment on the taxed costs as per the certificate of costs, since the respondent did not dispute the retainer or the amount. The bill of costs was properly served on the respondent, and there was no evidence of payment or tender. The court applied Section 51(2) of the Advocates Act to deem the certificate of costs as a judgment and Rule 7 of the Advocates Remuneration Order to award interest at 14% per annum from 16th March, 2019, being 30 days after delivery of the bill. The applicant was also awarded the costs of the application.
Court Disposition
application allowed
Orders
- Judgment is entered for the advocate against the client/respondent for Kshs. 146,130.
- Interest shall be paid at 14% per annum from 16th March, 2019 until payment in full.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
MISC. CIVIL APPLICATION NO 06 OF 2019
BETWEEN
ASHIOYA & COMPANY ADVOCATES……APPLICANT/ADVOCATE
AND
RHALPHAEL NDAKALA…………………..….RESPONDENT/CLIENT
RULING
1. By a Notice of Motion dated 30th August, 2019 and filed on even date, brought under the provisions of Section 51 (2) of the Advocates Act and Paragraph 7 of the Advocates Remuneration Order, the Applicant/Advocate seeks the following orders:
1) That this Honourable Court be pleased to order that the Certificate of Costs dated 12th July, 2019 be deemed to be a judgment
2) That judgment be entered for the Applicant against the Respondent for Kshs. 146,130/- (One hundred forty-six thousand, one hundred thirty) together with interest at 14% p.a until payment in full
3) That costs of this application be borne by the Client/Respondent
2. The Respondent though served neither opposed the application nor sent representation when the matter came up for hearing on 08. 10. 19.
3. I have considered the Application in the light of the supporting affidavit and annexures thereto. The bill of costs was taxed at Kshs. 146,130/- and a certificate in respect thereof was issued on 12th July, 2019.
4. The bill arose out of Kisumu CMCC 454 OF 2011 Kenya Sugar Research Foundation v Rhalphael Ndakala. The Respondent has not denied retaining the Advocate to act for him and the Advocate/Applicant is therefore entitled to its costs.
5. Regarding interest, I have considered the provisions of Rule 7 of the Advocates Remuneration Order which provides: -
“An advocate may charge 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.” (emphasis added).
6. The bill of costs was sent to the Client by Registered post on 16th February, 2019 and there being no evidence that it was returned, there is premafacie evidence that it was received by the client. Interest is payable from 30 days such delivery which is 16th March, 2019.
7. The upshot of this is that Notice of Motion dated 30th August, 2019 succeeds and is allowed in the following terms:
a)Judgment is hereby entered for the advocate against the Client/Respondent forKshs. 146,130/- (One hundred forty-six thousand, one hundred thirty)
b) Interest shall be paid at 14% from 16th March, 2019 till payment in full
c) The Advocate will also have the costs of this application.
DATED, DELIVERED AND SIGNED ON THIS 17th DAY OF October 2019
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Amondi/Okodoi
For Applicant/Advocate -N/A
For Respondent/Client - N/A