https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10339

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **HCCOMM MISC APP NO. E1071 OF 2024** **IN THE MATTER OF COSTS UNDER THE ADVOCATES REMUNERATION ORDER** **-AND-** **IN THE MATTER OF TAXATION OF ADVOCATE – CLIENT COSTS IN THE MILIMANI COMMERCIAL AND TAX DIVISION COMMERCIAL SUIT NO. 327 OF 2017 – FATUMA MOHAMMED HAJI & ANOTHER V AFRICAN BANKING CORPORATION LTD & OTHERS** **-BETWEEN-** **BENARD ODERO OKELLO T/A** **ODERO & PARTNERS ADVOCATES…..…………………APPLICANT** **-VERSUS-** **ALI JAMA ALI…………………………………...….….....RESPONDENT** **RULING** 1. Before me is a Notice of Motion application dated 28th May 2026 filed by the applicant under the provisions of Section 51 (1) & (2) of the Advocates Act, Order 51 of the Civil Procedure Rules and all enabling provisions of the law. The applicant sought an order for entry of judgment in its favour against the respondent in the sum of Kenya Shillings Ten Million Nine Hundred and Two Thousand Three Hundred and Seventy-Six (Kshs.10,902,376/=), being the amount certified in the Certificate of Costs dated 11th May 2026. 2. The application is premised on the grounds on the face of the motion and is supported by an affidavit sworn on the same day by Benard Odero Okello, an Advocate of the High Court of Kenya and the applicant herein. 3. Mr. Odero averred that the respondent instructed the applicant on or about July 2023 to represent him in **HCCOMM No. 327 of 2017 - Fatuma Mohamed Haji & Another v African Banking Corporation Limited & 6 Others**, a dispute concerning an alleged breach of contract arising from a post-import finance facility and a revolving term loan amounting to Kshs.295,895,000/= (USD 2,300,000). He stated that although he duly rendered the requested legal services, the respondent failed to settle the advocate’s fees, prompting the filing of an Advocate - Client Bill of Costs dated 17th December 2024. 4. Mr. Odero deposed that on 15th December 2025, the Deputy Registrar, Hon. Chembeni L. Adisa, taxed the said Bill of Costs at Kshs.10,902,376/=, following which a Certificate of Costs dated 11th May 2026 was issued. He asserted that the taxation has neither been varied nor set aside, that the respondent has failed or refused to satisfy the certified costs despite demand, and consequently urged the Court to enter judgment for the certified sum. 5. The instant application was canvassed by way of written submissions. Upon perusal of the Court record and the Case Tracking System, it is manifest that although the respondent was duly served with the pleadings herein, he neither filed a response nor tendered written submissions in opposition thereto. It is however noteworthy that the applicant’s submissions dated 3rd July 2026 were filed by the law firm of Odero & Partners Advocates. 6. The applicant referred to the provisions of section 51(2) of the Advocates Act, and the case of ***Lubulellah & Associates Advocates v N K Brothers Limited [2014] KEHC 8685 (KLR***), and submitted that the respondent has neither filed a reference challenging the taxation nor applied to set aside or vary the Certificate of taxation, with the result that the Certificate remains final, binding and enforceable. The applicant contended that having fully complied with the taxation procedure and in the absence of any objection under Rule 11 of the Advocates (Remuneration) Order, the Certificate of Taxation conclusively established the amount due, therefore there exists no legal impediment to its adoption as a judgment of the Court. 7. On the issue of interest, the applicant submitted that it is entitled to interest at the rate of 14% per annum under Rule 7 of the Advocates (Remuneration) Order. He argued that the requisite conditions have been satisfied, namely that the Bill of Costs was duly served upon the respondent on 6th February 2025, the costs were subsequently taxed and certified, more than one month has elapsed without payment, no lawful stay of execution has been obtained and the respondent remains in default. In the alternative, the applicant urged the Court to award post-judgment interest at Court rates under section 26(1) of the Civil Procedure Act from the date of judgment until payment in full. **ANALYSIS AND DETERMINATION** 1. Upon consideration of the instant application, the grounds on its face and the affidavit in support thereof, together with the written submissions by Counsel for the applicant, the issue that arises for determination is whether the Court should enter judgment for the applicant in terms of the Certificate of Taxation dated 11th May 2026, together with interest. 2. It is trite law that this Court is vested with jurisdiction to enter judgment where an Advocate - Client Bill of Costs has been taxed, a Certificate of Costs has been issued by the Taxing Officer, and the retainer is not in dispute, in accordance with the provisions of section 51(2) of the Advocates Act, which states that - ***“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. In the case of ***Lesinko Njororge & Gathogo Advocates v Invesco Assurance Co. Ltd [2021] KEHC 9046 (KLR***) **t**he Court explained the circumstances under which judgment may be entered on a Certificate of Taxation as follows – ***“The procedure provided in section 51(2) of the Advocates Act aids expeditious disposal of cases relating to recovery of advocate-client costs as long as: (1) the costs have been taxed by and certified under the hand of the taxing master by a Certificate of Costs; (2) the Certificate of Costs has not been set aside or stayed or appealed against on a reference filed upon it; and (3) there is no dispute on retainer. In such case, judgment is ordinarily entered in the sum in the Certificate of Costs upon application by the advocate. The application may be commenced by way of a Notice of Motion which in law is potent tool for originating a suit.”*** 1. The record shows that the applicant filed an Advocate - Client Bill of Costs dated 17th December 2024 for taxation. The said bill was subsequently heard and taxed vide a ruling delivered on 15th December 2025, by the Deputy Registrar, Hon. Chembeni L. Adisa, at Kshs.10,902,376/=. Thereafter, a Certificate of Taxation dated 11th May 2026 was duly issued certifying the amount payable by the respondent. 2. The Court has carefully examined the record and finds no evidence that the respondent challenged the taxation by invoking the procedure prescribed under Rule 11 of the Advocates (Remuneration) Order, which requires a party dissatisfied with a decision of the Taxing Officer to within fourteen days, give notice in writing specifying the items objected to, whereupon the Taxing Officer furnishes reasons to facilitate the filing of a reference before a Judge. Further, there is no evidence that the respondent applied to set aside, vary or stay the Certificate of Taxation dated 11th May 2026. 3. In the premise, the Court is satisfied that the aforesaid Certificate of Taxation remains valid as it has not been impeached in any manner recognized by law. Consequently, by operation of section 51(2) of the Advocates Act, it is final as to the quantum of the applicant's costs. 1. The second statutory requirement is that the retainer should not be disputed. On examination of the applicant’s affidavit in support of the instant application, the applicant averred that the respondent instructed him to act on his behalf in HCCOMM No. 327 of 2017. The record shows that the said averment has not been controverted, since the respondent did not file any pleadings in opposition to the instant application, disputing either the existence of the retainer or the applicant's entitlement to costs. 2. It is now well settled that while the Court must satisfy itself that the retainer is not disputed, such dispute must be real and supported by material placed before the Court. Mere silence on the part of the client cannot, in the circumstances of this case, be construed as raising a dispute regarding the advocate-client relationship, particularly where the Bill of Costs has already been taxed and no challenge has been lodged against the resulting Certificate of Taxation. In light of the above, the Court is satisfied that the applicant has met all the statutory conditions contemplated under section 51(2) of the Advocates Act, to warrant entry of judgment for the amount certified in the Certificate of Costs. 3. This Court notes that on the face of the application herein, the applicant did not seek for interest on the taxed costs. The prayer for interest came later in the applicant's submissions. It is now well settled that submissions do not constitute pleadings or evidence and cannot be used to introduce a substantive claim that has not been pleaded, rather they serve merely as persuasive tools employed by Counsel to advance and support their clients’ respective positions. Accordingly, in the absence of a specific prayer for interest in the Notice of Motion, there is no basis upon which this Court can entertain or determine the applicant's entitlement to interest on the taxed costs. 4. Additionally, interest on Advocates Costs is provided for under Rule 7 of the Advocates (Remuneration) Order which states as hereunder – ***“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.”*** 1. The import of the foregoing is that interest on an Advocate's fees can only be charged after the lapse of one month from when the bill was delivered to the client, and the claim for interest should have been raised before the amount of the bill is paid or tendered in full. In this case, the material placed before the Court does not demonstrate that the applicant raised a claim for interest upon delivery of the bill or at any time before payment, as contemplated under Rule 7 of the Advocates (Remuneration) Order. Moreover, no substantive prayer for interest was included in the Notice of Motion. Consequently, the applicant has not established an entitlement to interest under Rule 7 of the Advocates (Remuneration) Order. 2. Further, where the advocate fails to include the interest demand in the bill, then The Taxing Officer lacks jurisdiction to award the interest during taxation; and the Court cannot include interest in the certificate of taxation or any resulting judgment adopting the certificate of costs. 3. The Court of Appeal has recently addressed this issue of whether an advocate can claim interest on taxed costs when no prior demand was made before filing the bill of costs. In the case of ***Otieno, Ragot & Company Advocates v. Kenindia Assurance Co. Ltd (Civil Appeal 129 of 2019), [2023] KECA 1398 (KLR)*** the court held that an advocate cannot charge the 14% per annum interest under Rule 7 of the Advocates Remuneration Order without notifying the client. The court emphasized that it was incumbent upon the advocate to put the client on notice that they intended to claim interest at the point at which the bill of costs was drawn. It follows that an advocate is barred from springing up a claim for 14% interest during taxation or judgment application if it was not demanded in the original bill served to the client. To hold otherwise would amount to procedural unfairness and violate the clear requirements of the Advocates Remuneration Order. 4. Nevertheless, once judgment is entered, the decretal sum becomes a judgment debt. Pursuant to section 26(1) of the Civil Procedure Act, the Court retains discretion to award interest on the judgment sum at Court rates from the date of judgment until payment in full. In the circumstances of this case, the Court finds it appropriate to exercise that discretion. 5. The upshot is that the instant application is merited. In the premise, the court orders – 6. ***Judgment is entered in favor of the Applicant against the Respondent for Kenya Shillings Ten Million Nine Hundred and Two Thousand Three Hundred and Seventy-Six (Kshs.10,902,376/=), being the amount certified in the Certificate of Costs dated 11th May 2026;*** 7. ***The said sum shall attract interest at Court rates from the date of this judgment until payment in full; and*** 8. ***Each party to bear its own costs.*** 9. Orders accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF JULY, 2026** **……………………………………..** **W.N. MOLONKO** **JUDGE** **Delivered Virtually in the Presence of:-** * + 1. Odero for the Applicant. 2. No appearance for the Respondent. 3. Susan Nzioka – Court Assistant