https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4925

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MOMBASA** **MISC. APPLICATION NO. E050 OF 2025** **ASIGE KEVERENGE &** **ANYANZWA ADVOCATES… APPLICANT/ADVOCATE** **VERSUS** **ZUBEDA NASSER MBARAK 1ST CLIENT/RESPONDENT** **UMU KULTHUM MOHAMED KARAMA 2ND CLIENT/RESPONDENT** **SUMEYA MOHAMED KARAMA 3RD CLIENT/RESPONDENT** **HAMZA MOHAMED KARAMA 4TH CLIENT/RESPONDENT** **RULING** 1. A taxing officer’s certificate is the closing of an account. When the bill has been drawn and served, argued and taxed, and the officer has set his hand to the sum due, the quarrel over quantum is spent. What is left is not argument but arithmetic. The law then lends the advocate the arm of the court: it allows the figure to be clothed in the armour of a judgment, so that he who has earned his fee may go out and recover it. But armour is made for battle. Where the debt has already been paid, the court will not forge a weapon that has nothing left to strike. And where an advocate, having taken his money, turns back to ask for interest he never once claimed, the law gives him a short answer: he is too late. This brief application raises both propositions, and little else. **The application** 1. By his Notice of Motion dated **15th January 2026**, expressed to be brought under **section 51(2)** of the **Advocates Act**, Cap 16, paragraph 7 of the **Advocates (Remuneration) Order**, sections **1A**, **1B**, **1C** and **3A** of the **Civil Procedure Act**, Cap 21, and **Order 51** of the **Civil Procedure Rules**, the applicant firm, **ASIGE KEVERENGE & ANYANZWA ADVOCATES**, moves the court against its former clients, **ZUBEDA NASSER MBARAK**, **UMU KULTHUM MOHAMED KARAMA**, **SUMEYA MOHAMED KARAMA** and **HAMZA MOHAMED KARAMA**. The prayers, which I reproduce as they are framed, are these — 2. ***“THAT the Court be pleased to Order that the Certificate of Costs issued on 15th January 2026 to the Applicant be converted in a judgement and Decree of this Court and consequently a judgement be entered for the Applicant against the Respondent for Kshs. 770,031/=”*** 3. ***“THAT interest does accrue on the sum of Kshs. 770,031/= at the rate of 16% per annum, with effect from 5th November 2025, until payment shall be made in full as prescribed in paragraph 7 of the Advocates Remuneration Order.”*** 4. ***“THAT Costs of this application be awarded to the Advocates/Applicant.”*** 5. The motion is supported by the affidavit of **JAPHETH ASIGE**, advocate, sworn on **15th January 2026**. His account is short. He was retained by the respondents in a land matter. He drew his bill, filed it for taxation, and a certificate of costs issued, which he annexes as exhibit ‘**JA 1**’. The certificate, he deposes, has neither been altered nor set aside. His clients are unwilling to pay. A decree is therefore needed, for without one he cannot execute. 6. The exhibit speaks for itself, and it speaks with precision. The **Certificate of Cost** under the hand of **Hon. Christopher Yalwala**, Deputy Registrar of this court, certifies that the bill of costs dated **30th April 2025**, lodged by the applicant firm, was taxed in this suit as between advocate and client on **5th November 2025** and allowed in the sum of **Kshs. 770,031.67**. Two small corrections to the pleading follow from that document. The certificate is dated **13th January 2026**, not the 15th; and the sum certified is **Kshs. 770,031.67**, not **Kshs. 770,031/=**. Nothing of consequence turns on either. It is the certificate, and not the prayer, that fixes the figure and the date. 7. Since the motion was filed the ground beneath it has shifted, and materially so. The court has been informed, and it is not in contest, that the certified sum of **Kshs. 770,031.67** has been settled in full. What remains unresolved between these parties is the costs of this motion, and nothing more. A court decides the case before it as it stands at the moment of decision, not as it stood at the moment of filing. **Issues for Determination** 1. Three issues therefore arise for determination: (i) Should the Certificate of Costs be converted into a judgment and decree of this Court? (ii) Is interest payable upon the certified sum at **16%** per annum with effect from **5th November 2025**? (iii) Who should bear the costs of this motion? 1. Before turning to those questions it is convenient to set out the provisions which govern them. **Section 51(2)** of the **Advocates Act** provides — *“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.”* 1. **Paragraph 7** of the **Advocates (Remuneration) Order** provides — *“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 that such claim for interest is raised before the amount of the bill shall have been paid or tendered in full.”* **(i) Should the Certificate of Costs be converted into a judgment and decree of this Court?** 1. The subsection has, as **Ojwang J** (as he then was) observed in ***Ahmednasir, Abdikadir & Company Advocates v National Bank of Kenya Limited*** **[2006] eKLR**, three limbs: the certificate itself; the jurisdiction of the court over it; and the circumstances in which the court may exercise its discretion to enter judgment in its terms. The first two are easily satisfied here. The certificate exists, it is regular on its face, and it is unimpeached. The retainer is not disputed. No reference under **paragraph 11** of the **Advocates (Remuneration) Order** has been filed, and no application has been made to set the certificate aside or to alter it. 2. As to the finality of what the taxing officer has certified, the **Supreme Court** has spoken. In ***Kenya Airports Authority v Otieno, Ragot & Company Advocates***, **SC Petition No. E011 of 2023** (**Koome CJ & P**, **Ibrahim**, **Wanjala**, **Njoki Ndungu** and **Lenaola SCJJ**), judgment delivered on **2nd August 2024**, the Court said of **section 51(2)** — *“The words employed in the above provision are clear and demonstrate that the intention of the Legislature is that the costs ascertained by the certificate of taxation or costs, are final with respect to costs covered therein…” [paragraph 71]* 1. The sum of **Kshs. 770,031.67** is therefore beyond argument. It is settled, in the older sense of that word, and — as I come to in a moment — in the newer sense as well. 2. But finality as to amount is one thing; entitlement to judgment is another. The statute says the court “may”, and the word is not ornamental. In ***Bruce Odeny & Co Advocates v Sino Hydro Corporation*** **[2025] KEELC 58 (KLR)**, **Okong’o J** put the point in a sentence that ought to be remembered — *“This means that the judgment is not entered as of right. The court may refuse to enter judgment for good cause even without a dispute over the retainer.”* 1. Here is the good cause, and it is of an unusual kind: not that the applicant asks for too much, but that he asks for something he no longer needs. A judgment under **section 51(2)** has, in practice, a single office — to found execution. The deponent says so himself in terms: “*the execution can only be done upon the Certificate of Costs has being converted into a judgement and a decree is issued*.” Take away the debt and you take away the office. To issue a decree for a sum already discharged would be to arm a creditor who has been paid, and to expose these four clients to the hazard of paying a second time for a service rendered once. The court does not act in vain, and it does not lend its process to a purpose that has ceased to exist. 2. Yet the applicant was not wrong to come. When he moved on **15th January 2026** the money was owing and unpaid, and he was entitled to the order he sought. He should not be worse off for having been paid after he was driven to court, any more than his clients should be worse off for having paid. Justice here does not lie in refusing the prayer, nor in granting it in a form capable of mischief. It lies between the two. 3. I shall therefore do what the statute permits and what the facts require: enter judgment in the terms of the certificate, and in the same breath record that judgment as fully satisfied, so that the applicant’s entitlement stands upon the record and the clients’ discharge stands protected upon the same record. No decree shall issue for the execution of a debt that has been paid. **(ii) Is interest payable at 16% per annum from 5th November 2025?** 1. This prayer cannot stand. It fails at three separate points, and any one of them would be enough. 2. **First, the rate.** The applicant invokes **paragraph 7** of the **Advocates (Remuneration) Order** and, in the same sentence, claims **16%**. Paragraph 7 says **14 per cent**. No other foundation for the higher figure is pleaded, and none exists. A court cannot draw out of a provision more than the provision holds. 3. **Second, the starting point.** Paragraph 7 runs interest “from the expiration of one month from the delivery of his bill to the client.” The prayer runs it from **5th November 2025**, the date of taxation. Those are not the same date, and the Order knows only one of them. Nor does the record disclose when, or indeed whether, the bill dated **30th April 2025** was ever delivered to the clients, so that even the correct date could not now be computed. 4. **Third, and decisively, the claim was never made in the bill.** On this the **Court of Appeal** has closed the question. In ***Otieno, Ragot & Company Advocates v Kenindia Assurance Co. Ltd*** **[2023] KECA 1398 (KLR)**, **Joel Ngugi JA** held — *“It was not open to the appellant to claim the potentially permissible interest rate of 14% for the first time during adoption proceedings under section 51(2). This is because it was incumbent upon the advocate to put the client on notice that he intended to claim the interest at the point at which he drew the Bill of Costs. He did not. If an advocate is interested in claiming the potentially allowable interest at 14% p.a., he must make the claim in the Bill of Costs.”* 1. **Kiage JA**, concurring, fastened upon the proviso and gave it a phrase that this case seems almost to have been written for — *“That last phrase of the rule, in the nature of a proviso, speaks to an important policy consideration: the claim must be made in timely fashion. In case the client decides to pay the bill, it is not open to the Advocate to thereafter have a Eureka Moment, recall the existence of the right, and claim interest at 14% per annum.”* 1. Measure this application against that standard and it fails at every turn. Nothing on the record shows that interest was claimed in the bill of costs dated **30th April 2025**, or that any cautionary notice of an intention to charge it was ever given. The **Certificate of Cost** of **13th January 2026** certifies a principal sum and not a shilling more. No reference was filed under **paragraph 11** to correct that omission. And the bill has now been paid in full, so that the proviso has closed the door from the other side as well. On authority binding upon this court, the claim to interest is spent. Prayer 2 is declined. **(iii) Who should bear the costs of this motion?** 1. There remains the only matter genuinely still in issue between these parties. Costs are in the discretion of the court under **section 27(1)** of the **Civil Procedure Act**. They ordinarily follow the event, but that rule is a guide and not a fetter; the **Supreme Court** made this plain in ***Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others***, **SC Petition No. 4 of 2012; [2014] eKLR**, where it affirmed an open mandate to exercise the discretion so as to meet the ends of justice. 2. The event here is mixed, but its weight is clear. The applicant was driven to this court by non-payment, and payment came only after he had filed. On the substance of his motion he has succeeded. On interest he has failed, and failed on grounds of his own making. He is entitled to his costs, but to costs measured with restraint. It would be a poor irony to send a bill of costs off for taxation over the costs of enforcing a bill of costs; that way the reckoning never ends. I shall assess them myself, and fix them at **Kshs. 30,000**. **Disposition** 1. For the reasons I have given, I make the following orders — ***(a)*** *Judgment is hereby entered for the Applicant,* ***ASIGE KEVERENGE & ANYANZWA ADVOCATES****, against the 1st, 2nd, 3rd and 4th Respondents/Clients, jointly and severally, in the sum of* ***Kshs. 770,031.67*** *in terms of the Certificate of Cost dated* ***13th January 2026*** *issued by the Deputy Registrar of this court.* ***(b)*** *The said judgment is recorded as* ***fully satisfied****, the certified sum of* ***Kshs. 770,031.67*** *having been paid in full; and for the avoidance of doubt no decree shall issue, and no execution shall lie, in respect of that sum.* ***(c)*** *Prayer 2 of the Notice of Motion dated* ***15th January 2026****, seeking interest at* ***16%*** *per annum from* ***5th November 2025****, is* ***declined****.* ***(d)*** *The Applicant shall have the costs of the motion, which I assess at* ***Kshs. 30,000****, payable within* ***thirty (30) days*** *of the date hereof; no further taxation shall be necessary.* ***(e)*** *The file is hereby closed.* It is so ordered. The account between advocate and client, having been taxed, certified and now paid, is closed; and the court declines to reopen it for an interest that was never asked for until the asking was too late. This **ruling** is **dated, signed** and **delivered** virtually vide Microsoft Teams at Mombasa this 30th day of July, 2026. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **B.A. AKELLO, OGW** **JUDGE** **In the presence of:** Mr. Asige — for the Applicant/Advocate N/A — for the 1st, 2nd, 3rd and 4th Respondents/Clients Gillian Mutamba — Court Assistant