https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9150

Atunga Abuka Advocates v Kitho Civil & Engineering Company Ltd (Miscellaneous Application E798 of 2021) [2026] KEHC 9150 (KLR) (Commercial and Tax) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9150 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E798 of 2021 RC Rutto, J June 25, 2026 Between Atunga Abuka Advocates Applicant and Kitho Civil & Engineering Company Limited Respondent Ruling 1.The Applicant’s Notice of Motion dated 27th August, 2025, is brought pursuant to Section 3A of the Civil Procedure Act, section 51 (2) of the Advocates Act and rule 7 of the Advocates Remuneration Order, seeking the following reliefs:1.The certificate of taxation dated 23rd June 2025 for the sum of Kshs. 1,887,927.50 be adopted as a judgment and decree of the court;2.The said sum of Kshs. 1,887,927.50 do attract interest at the rate of 14% per annum effective from 19th May 2025 until payment in full; and3.The costs of this application be borne by the Respondent 2.The application is supported by the grounds set out on its face and the supporting affidavit of Rodgers Atunga, an advocate practicing in the nature and style of the Applicant. The gist of the Application is that the Applicant filed an Advocate-client bill of costs dated 27th October, 2021, against the Respondent which was taxed on 19th May, 2025, at Kshs. 1,887,927.50/-. A certificate of costs dated 23rd June, 2025, was subsequently issued and served upon the Respondent on 27th June, 2025, together with a notice of entry of judgment, dated 26th June, 2025. 3.The Applicant further deponed that on 11th July, 2025, the Respondent served a letter dated 28th June, 2025, proposing to settle the decretal sum by instalments. The Applicant responded by way of a counter offer, vide its letter dated 14th July, 2025, to which the Respondent replied on 28th July, 2025 reiterating its initial proposal. 4.The Applicant being dissatisfied with the Respondent’s proposal, contends that the decretal sum remains wholly unpaid, necessitating the present application. It maintains that it is in the interest of justice that the orders sought be granted. 5.The application is opposed by the Respondent through a replying affidavit, sworn on 22nd September, 2025, by its director, Simon Musyoka Kaingo. While the Respondent does not dispute the factual background leading to this application, it avers that it is financially constrained owing to the repossession of its assets by the National Bank, a matter it states is pending before the court. It contends that it would suffer prejudice if the orders sought are granted. 6.The Respondent proposes to liquidate the decretal sum by monthly installments of Kshs. 100,000.00/- and asserts that the proposal was made in good faith but was unreasonably rejected by the Applicant. It urges the Court to exercise its discretion in its favor. 7.The application was canvassed by way of written submissions. The Applicant’s submissions dated 18th November, 2025, reiterate that the certificate of costs has neither been set aside nor challenged and is therefore final. It also advances reasons for declining the Respondent’s proposal, however, those reasons having been raised only in submissions and not in the affidavit evidence are of no evidential value and will not be considered. 8.The Respondent submissions dated 10th March, 2026, invoke Order 21, rule 12 of the Civil Procedure Rules, urging the court to permit payments by instalments on account of financial hardship, and maintaining that its proposal was made in good faith. 9.Lastly, the Respondent submitted that though the certificate of costs was not contended, the Applicant was being unreasonable in declining its proposal. It urged this Court to allow it settle the decretal sum in installments of Kshs. 100,000.00/- monthly. 10.I have carefully considered the application, the response, the rival submissions, and the applicable law. The present application seeks entry of judgment on a certificate of costs and is governed by Section 51 (2) of the Advocates Act, which 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.” 11.The taxing master’s ruling dated 19th May, 2025, taxed the Applicant’s advocate-client bill of costs, at Kshs. 1,887,927.50/- culminating in the issuance of a certificate of costs dated 23rd June, 2025. The said certificate remains unchallenged, as no reference, appeal or application to set aside has been filed. 12.Indeed, the Respondent concedes this position and instead acknowledges receipt of the certificate of costs and indicates that it sought to negotiate payment by installments. That concession firmly places the matter within the ambit of Section 51(2) of the Advocates Act. 13.In those circumstances, the Court’s role is limited. Where a certificate of costs has not been set aside or varied, and the retainer is not disputed, the Court is enjoined to enter judgment for the sum certified. The Respondent’s attempt to introduce the issue of installment payment at this stage does not impugn the validity or finality of the certificate. 14.While this Court is not oblivious to its discretionary powers under Order 21, rule 12 of the Civil Procedure Rules, such discretion must be exercised within the confines of the law and upon proper invocation. The present application principally seeks entry of judgment, and not the enforcement or settlement of a decretal sum. The Respondent’s proposal is therefore premature and procedurally misplaced. 15.Moreover, the Respondent has failed to place before the Court cogent and credible evidence to substantiate its alleged financial incapacity. The assertions relating to repossession of assets remain bare and unsupported by documentary proof. No nexus has been established between the alleged financial difficulties and the Respondent’s inability to satisfy the taxed costs. 16.Further, the Respondent’s conduct does not demonstrate good faith. Notably, despite its stated willingness to liquidate the debt by installments, there is no evidence of any partial payment having been made. A genuine intention to settle a debt would ordinarily be accompanied by some form of demonstrable commitment. 17.In the premises, the Court finds no justifiable basis to decline the application. Accordingly, judgment is hereby entered in favour of the Applicant against the Respondent in the sum of Kshs. 1,887,927.50/-. 18.The said sum shall attract interest at the rate of 14% per annum from 19th May, 2025, until payment in full. The Applicant shall also have the costs of this application. 19.It is so ordered. DELIVERED, DATED AND SIGNED VIRTUALLY THIS 25TH DAY OF JUNE, 2026RHODA RUTTOJUDGEIn the presence of;Court Assistant: WabwireMr. Atunga for the ApplicantMs. Nyakoe for the Respondent