[2018] KEHC 5031 (KLR)
The court held that the consent recorded between the parties for taxation of the bill of costs does not constitute a contract but is to be treated as a judgment of the court upon adoption of the certificate of costs by the High Court. The issuance of the certificate of costs is a function of the court, and parties...
Source-derived case information.
- Citation
- [2018] KEHC 5031 (KLR)
- Parties
- Applicant: Chebet and Chebet Advocates; Respondent: Savings & Loan Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case Case1569 of 2007
- Procedural Posture
- Advocate Client Bill of Costs / Ruling on Notice of Motion for Judgment on Taxed Costs
- Outcome
- application allowed; certificate of costs adopted as judgment of the court
- Judges
- RB Ngetich
- Legal Topics
- Advocate Client Costs, Taxation of Costs, Limitation of Actions, Consent Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chebet and Chebet Advocates
Applicant
Savings & Loan Kenya Limited
Respondent
Procedural Posture
Advocate Client Bill of Costs / Ruling on Notice of Motion for Judgment on Taxed Costs
Legal Issues
- 1 Whether the consent recorded between the parties constitutes a contract or a judgment of the court.
- 2 Whether the application for judgment on the certificate of costs is time-barred under the Limitation of Actions Act.
- 3 Whether interest should be paid on the taxed costs.
Ratio Decidendi
The court held that the consent recorded between the parties for taxation of the bill of costs does not constitute a contract but is to be treated as a judgment of the court upon adoption of the certificate of costs by the High Court. The issuance of the certificate of costs is a function of the court, and parties cannot apply for judgment until the certificate is issued. The delay in issuance of the certificate was not attributable to the parties, and the application for judgment was therefore not time-barred under the Limitation of Actions Act. The certificate of costs, having not been challenged, was adopted as the judgment of the court, and interest was awarded from the date of filing...
Court Disposition
application allowed; certificate of costs adopted as judgment of the court
Orders
- Certificate of Costs dated 13th January 2017 for Kshs. 2,919,354 is adopted as the judgment of this court.
- Interest awarded from the date of filing the suit.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION-MILIMANI
CIVIL CASE NO.1569 OF 2007
IN THE MATTER OF ADVOCATE –CLIENT BILL OF COSTS
UNDER THE ADVOCATES ACT (CAP16) LAWS OF KENYA
BETWEEN
CHEBET AND CHEBET ADVOCATES.........APPLICANT/ADVOCATE
AND
SAVINGS & LOAN KENYA LIMITED.............RESPONDENT/CLIENT
R U L I N G
This is a ruling on Notice of Motion dated 22nd November 2017 seeking to enter judgement for the Plaintiff against the Respondent for a sum of Kshs. 2,919,354. 00 being bill of costs agreed between parties herein in respect of Advocate-Client Bill of Costs filed on 25th October 2007.
The Respondent filed ground of opposition to the application herein dated 7th March 2018. The Respondent seeks to have the application struck out for being brought 10 years after the decision was made; that the application is time barred and should be struck out.
Counsels herein did oral submissions.
Counsel for the Applicant submitted that the bill of costs was taxed by consent on 17th December 2008 and Certificate of Costs issued on 13th January 2018. She submitted that to date the certificate has not been challenged.
Counsel for the Respondent restated grounds of opposition filed. She submitted that taxation took about 10 years ago. She said it was a judgment for assessment of costs. She submitted that under Section 4 (4) of the Limitation of Actions Act, a claim for costs is a contractual claim which should be made within 6 years. She submitted that the consent was a contract between the parties herein and that no action has been taken for 9 years. She submitted that it is not an action that can be brought under Section 51 of the Advocates Act. That they are asking costs for 10 years; that the Respondent should not be burdened with costs.
ANALYSIS AND DETERMINATION
Issues for consideration
1. Whether consent is a contract between parties,
2. Whether interest should be paid.
On perusal of the file I note that parties herein recorded consent dated 15th December 2008 and filed on 17th December 2008 for the bill to be taxed at Kshs. 2,919,354. the Deputy Registrar issued Certificate of Cost dated 13th January 2017.
It is evident that the consent was recorded in respect to taxation Bill of Costs. The same was to be adopted as a judgement of the Court upon adoption of certificate issued by the Deputy Registrar. It is evident that the issuance of certificate delayed. Issuance of Certificate of Costs is the duty of the Court and the parties have no control over it. The party entitled to taxed costs cannot apply for the costs to be adopted as judgment of the Court before the Certificate of Costs is issued by the Registrar. The consent cannot be treated as a contract. It is of be treated as a judgment of the Court upon adoption by the High Court.
On the issue of interest note that the consent recorded in Court by the parties herein has not been challenged. The Respondent was aware of the costs and should have paid after recording consent to avoid additional interest.
FINAL ORDERS
Certificate of Costs dated 13th January 2017 for Kshs. 2,919,354 is adopted as the judgement of this Court. Interest from date of filing this suit.
Dated and Delivered at Nairobi this 31stday ofJuly,2018
………………………………
RACHEL NGETICH
JUDGE
IN THE PRESENCE OF
CATHERINE: COURT ASSISTANT
MS. LWILA H/B FOR MR. MWINYI: FOR RESPONDENT/CLIENT
MS. SOSI: COUNSEL FOR APPLICANT/ADVOCATE