[2021] KEHC 13236 (KLR)
The court held that the certificates of taxation issued by the Deputy Registrar, having not been set aside or interfered with, are final and conclusive as to the amount of costs payable by the respondents to the applicant. The respondents' challenge on the basis of lack of instructions was found to be untenable at...
Source-derived case information.
- Citation
- [2021] KEHC 13236 (KLR)
- Parties
- Applicant: Cecil Miller t/a Miller & Co. Advocates; Respondent: Parin Sharrif; Respondent: Nazlin Nizar Jetha; Respondent: Yasmin Janmohammed; Respondent: Anar Hanali
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Cause 108 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Adopt Certified Costs as Judgment and for Release of Deposited Security
- Outcome
- judgment for applicant; certified costs adopted as judgment; interest awarded; deposited security released to applicant; costs to applicant
- Judges
- AO Muchelule
- Legal Topics
- Taxation of Costs, Advocate Client Costs, Interest on Costs, Enlargement of Time, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cecil Miller t/a Miller & Co. Advocates
Applicant
Parin Sharrif
Respondent
Nazlin Nizar Jetha
Respondent
Yasmin Janmohammed
Respondent
Anar Hanali
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Adopt Certified Costs as Judgment and for Release of Deposited Security
Legal Issues
- 1 Whether the certified costs should be adopted as judgment of the court with interest at 14% from 31st March 2015.
- 2 Whether the Kshs.58,553,158 deposited by the respondents as security should be released to the applicant to settle the certified costs.
- 3 Whether the respondents can challenge the bills of costs on grounds of lack of instructions at this stage.
Ratio Decidendi
The court held that the certificates of taxation issued by the Deputy Registrar, having not been set aside or interfered with, are final and conclusive as to the amount of costs payable by the respondents to the applicant. The respondents' challenge on the basis of lack of instructions was found to be untenable at this stage, as the issue should have been raised before or during taxation, not after certification. The court further held that interest at 14% is payable from 31st March 2015, in accordance with the Advocates Remuneration Order and the Civil Procedure Act, to compensate the applicant for being kept out of his money. Given that the respondents had deposited Kshs.58,553,158 as...
Court Disposition
judgment for applicant; certified costs adopted as judgment; interest awarded; deposited security released to applicant; costs to applicant
Orders
- Judgment entered for the applicant for Kshs.18,759,474 and Kshs.18,760,692, each with interest at 14% from 31st March 2015 to date of full payment.
- The sum of Kshs.58,553,158 deposited by the respondents as security to be released to the applicant as part settlement of the certified costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
MISC. CAUSE NO. 108 OF 2012
IN THE MATTER OF THE ADVOCATES ACT
AND
IN THE MATTER OF TAXATION OF COSTS BETWEEN ADVOCATE AND CLIENT
BETWEEN
CECIL MILLER T/A MILLER & CO. ADVOCATES...............................................APPLICANT
AND
PARIN SHARRIF................................................................................................1ST RESPONDENT
NAZLIN NIZAR JETHA...................................................................................2ND RESPONDENT
YASMIN JANMOHAMMED.............................................................................3RD RESPONDENT
ANAR HANALI...................................................................................................4TH RESPONDENT
RULING
1. The Deputy Registrar taxed the applicant’s bills of costs on 25th September 2014 at Kshs.18,759,474/= and Kshs.18,760,692/=, respectively. On 27th June 2019 the certificates issued on 31st May 2015 for the amount were entered as judgment of court. They were with interest at 14% from 1st May 2015 to the date of full payment. The respondents filed an application dated 25th July 2019 to review and set aside the judgment and decree to allow the hearing of their application dated 17th May 2015 to enlarge time within which to file and serve a reference against the taxation by the Deputy Registrar. The applicant filed an application dated 27th September 2019 to have the respondents to provide security for the decretal amount which had grown to Kshs.58,533,158/69. The court allowed the respondents’ application on condition that they deposit into court Kshs.58,553,158/=. They deposited the amount.
2. The respondents’ application to enlarge time to file a reference was subsequently heard. On 1st July 2021 it was found not to be merited. It was dismissed with costs.
3. The present application dated 5th July 2021 was by the applicant. It was brought under section 51 of the Advocates Act, Rule 7 of the Advocates Remuneration Order and Order 50 rule 1 of the Civil Procedure Rules. The application sought that the certified costs be adopted as judgment of the court, and that there be interest at 14% from 31st March 2015 to the date of full payment.
4. On 1st July 2021 the court gave leave to the respondents to appeal the decision refusing them enlargement of time. It also gave them leave to file an application for the stay of the court orders. When the matter came up on 15th July 2021 the respondents through their counsel informed the court that they had not yet filed the application for stay, although they had appealed the decision. The applicant had filed an application to enter judgment on the certificates of taxation. The application had been served but had not elicited any response from the respondents. I asked the parties to exchange written submissions and come today for this ruling. I notice that the respondents, without leave, have filed a response to the application. I will consider it all the same.
5. It is not denied the the certificates have not been satisfied for the longest period. The response to the application was that the applicant did not have instructions from the respondents to file the two succession causes. The response was therefore challenging the entire bills of costs on lack of instructions to the applicant. Quite unfortunately, this is a matter that was settled by the Deputy Registrar and the certificates have not been interfered with by this court.
6. The respondents took advantage in the replying affidavit and in their advocates written submission to attack the court by alleging that it had been unfair and biased against them. This is because the court had refused to enlarge time for them to file a reference. All that I wish to say is that they have appealed the decision of the court, and I wish them well.
7. The issue of retainer cannot be raised at this stage. There was taxation, and there are certified costs. A certificate of costs is final as to the amount of the costs payable. This is what section 51 of the Advocates Act is all about.
8. Interest is awarded to compensate the claimant for having been kept of his money for a long period. Such interest is payable under rule 7 of the Advocates Remuneration Order and section 26 of the Civil Procedure Act. The costs have in this case not been paid since the certificates were issued on 31st March 2015.
9. I consequently enter judgment for the certificate of Kshs.18,759,474/= and the certificate of Kshs.18,760,692/=. Each will be with interest of 14% from 31st March 2015 to the date of full payment.
10. The applicant asked that the Kshs.58,553,158/= deposited by the respondents into court be released to settle the certified costs. This was opposed by the respondents. I have indicated that the certificates have been outstanding since 31st March 2015. Ideally, the applicant should go through the normal execution proceedings. But that will be unduly and unfairly prolonging the day of reckoning on the part of the respondents. Now that that application for stay was not filed, and no stay was obtained in the Court of Appeal, I direct that the amount be released to the applicants as part of his outstanding fees. I consider that when the applicant asked that the amount be deposited as security, the figure was not disputed.
11. Costs shall follow the event.
DATED and DELIVERED at NAIROBI this 22ND day of JULY, 2021.
A.O. MUCHELULE
JUDGE