[2014] KEHC 3994 (KLR)
The court held that the application was misconceived because section 51(2) of the Advocates Act is intended for advocates seeking judgment for costs against their clients, not for litigants seeking party and party costs. The applicant, not being an advocate, could not invoke this provision. The proper procedure was...
Source-derived case information.
- Citation
- [2014] KEHC 3994 (KLR)
- Parties
- Applicant: Cecilia Wambui Kihara; Respondent: Ephantus Wambugu Waweru
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 139 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Judgment on Certified Costs
- Outcome
- application dismissed
- Judges
- J Wakiaga
- Legal Topics
- Party and Party Costs, Certificate of Taxation, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cecilia Wambui Kihara
Applicant
Ephantus Wambugu Waweru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Judgment on Certified Costs
Legal Issues
- 1 Whether the applicant is entitled to judgment for certified costs under section 51(2) of the Advocates Act.
- 2 Whether the application was properly brought under the Advocates Act given the applicant is not an advocate.
- 3 Whether party and party costs should be assessed and executed through the lower court.
Ratio Decidendi
The court held that the application was misconceived because section 51(2) of the Advocates Act is intended for advocates seeking judgment for costs against their clients, not for litigants seeking party and party costs. The applicant, not being an advocate, could not invoke this provision. The proper procedure was for the costs to be assessed by the executive officer of the lower court, incorporated into the decree, and executed in the usual manner. As the application was brought under the wrong legal provision, it was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application is dismissed for having been brought under the wrong provisions of the law.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
MISC. CIVIL APPL. NO. 139 OF 2011
CECILIA WAMBUI KIHARA …. ..........................................…APPLICANT
versus
EPHANTUS WAMBUGU WAWERU...................................RESPONDENT
RULING
1. By a notice of motion under section 51(2) of the Advocates Act the applicant moved the court for an order that judgment be entered in favour of the applicant against the respondent for the sum of Ksh. 44,955 being the certified cost due to the applicant against the respondent and that the respondent do pay to the applicant interest on the certified cost at 14% p.a. from 25th August 2005 to the date of filing the Bill of Cost.
2. It was supported by the affidavit of CECILIA WAMBUI KIHARA wherein she deponed that on 4th August 2008 she instructed the firm of Wahito and Co. Advocates to act for her in relation to a claim for damages arising out of a road traffic accident on 25th May 2008 and on 19th April 2011 she was awarded Ksh. 93,330/- as general and special damages plus cost and interest.
3. It was further deponed that the respondent paid a sum of Ksh. 93,330/- leaving a balance of Ksh. 44,955 as per the attached certificate of taxation.
4. I must point out that this is party and party cost awarded to the applicant in CMCC No. 473 of 2008 and therefore those costs should have been assessed by the executive officer of the lower court to form part of the decree and certificate thereon which should have been executed on the usual manner.
5. The applicant herein is not an advocate under the provisions of the Advocates Act wherein section 51(2) of the Advocates Act would have been applicable. I therefore find no merit on the application herein which I hereby dismiss for having been brought under the wrong provisions of the law with no order as to cost.
Dated and delivered at Nyeri this 20th day of June 2014.
J. WAKIAGA
JUDGE
Court: Ruling read in open court in the absence of the advocates for the applicant and the applicant.
J. WAKIAGA
JUDGE
20/6/2014