[2017] KEHC 7164 (KLR)
The court found that the applicant had established that a bill of costs was taxed in his favour, a certificate of costs was issued and served on the respondent, and the certificate had not been set aside or altered. There was no evidence of any dispute as to retainer, and the respondent did not contest the...
Source-derived case information.
- Citation
- [2017] KEHC 7164 (KLR)
- Parties
- Applicant: Cicilio Murango Mwenda t/a Murango Mwenda & Co. Advocates; Respondent: County Government of Isiolo
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 47 of 2016
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- judgment for the applicant
- Judges
- A Mabeya
- Legal Topics
- Advocate Remuneration, Certificate of Taxation, Judgment on Certified Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cicilio Murango Mwenda t/a Murango Mwenda & Co. Advocates
Applicant
County Government of Isiolo
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the applicant is entitled to judgment based on a certificate of taxation that has not been set aside or altered.
- 2 Whether there is any dispute as to the retainer between the advocate and the respondent.
Ratio Decidendi
The court found that the applicant had established that a bill of costs was taxed in his favour, a certificate of costs was issued and served on the respondent, and the certificate had not been set aside or altered. There was no evidence of any dispute as to retainer, and the respondent did not contest the application. In accordance with Section 51(2) of the Advocates Act and the cited case law, the court held that the applicant was entitled to judgment for the certified amount. The court further awarded interest at 14% per annum from 29th April, 2016, being 30 days after service of the block bill, until payment in full, and also awarded the costs of the suit to the applicant.
Court Disposition
judgment for the applicant
Orders
- Judgment is entered for the applicant against the respondent for KShs.2,149,975/=.
- The decretal sum shall attract interest at 14% per annum from 29th April, 2016 until payment in full.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISCELLANEIOUS APPLICATION CAUSE NO. 47 OF 2016
CICILIO MURANGO MWENDA
T/A MURANGO MWENDA & CO. ADVOCATES ……… PLAINTIFF
VERSUS
COUNTY GOVERNMENT OF ISIOLO …….……………. DEFENDANT
JUDGMENT
1. Before me is a Motion on Notice dated 17th November, 2016 taken out by Cicilio Murango Mwenda t/a Murango Mwenda & Co. Advocates (hereinafter “the Applicant”). The same is brought under Section 52 (2) of the Advocates Act and seeks judgment against Isiolo County Government (“The Respondent”) for KShs.2,149,975/= in terms of a Certificate of Taxation dated 22nd September, 2016.
2. The Motion is supported by the Affidavit of Cicilio Murango Mwenda sworn on 21st November, 2016. The grounds for the Motion are that the Applicant is an Advocate of this Court who had filed a bill of costs dated 31st May, 2016 against the Respondent; that the said bill of costs was taxed on 15th September, 2016 in his favour at KShs.2,149,975/=. A Certificate of Costs was subsequently issued on 22nd September, 2016 in respect thereof which was duly sent to the Respondent. The said certificate of costs has neither been set aside nor altered. That despite as aforesaid, the Respondent has not settled the sum certified or any sum at all. The Applicant therefore prays for judgment in terms of the said certificate of costs. The Applicant did file submissions and relied on the cases of Kithi & Company Advocates v Menengai Downs Ltd [2015] eKLR and Nderitu & Partners Advocates v Mamuka Valuers (Management) Ltd [2006] e KLR which I have carefully considered.
3. Section 51 (2) of the Advocates Act provides:-
“(2)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.”
4. It wouldseemthat from the said provision, all that an Advocate has to show is that there is a bill of costs which has been taxed and a certificate of costs issued in respect thereof; that the said certificate has not been altered or set aside by the court and that there is no dispute as to retainer. On proving the foregoing, an Advocate is entitled to judgment on the amount contained in the certificate plus costs.
5. In the present case, I have seen a Bill of Costs dated 31st May, 2016. The same was taxed at KShs.2,149,975/= and a certificate of costs in respect thereof issued by the taxing master on 22nd September, 2016. Vide a letter dated 30th September, 2016, the Advocate sent a copy of the saidcertificate of costs to Ms. Okubasu & Munene Advocates forthe Respondent and demanded settlement of the amount certified. In his supporting Affidavit sworn on 21st November, 2016, Cicilio Murango swore that not only had the said certificate not been altered or set aside by the court, but that no payment in respect thereof had been received.
6. As held in the cases of Kithi and Company Advocates v Menengai Downs Limited (Supra)andNderitu & Partners Advocates v Mamuka Valuers (Management) Ltd (Supra), if there is no dispute as to retainer, once an Advocate proves that costs had beencertified and the certificate remained unaltered or was yet set to be aside, the Advocate is entitled to judgment. Inthepresent case, the certificate of costs remains intact and unaltered. There is nothing on record to show that retainer is disputed.To the contrary, there is on record a letter from the Defendant dated 21st May, 2015 instructing the Advocate to proceed acting for it. The avermentsofthe Advocatein his Supporting Affidavit remain uncontroverted.
7. In the circumstances, the Advocate has proved that he is entitled to judgment on the amount certified in the Certificate ofCostsdated22nd September, 2016. Accordingly,the application is allowed.Judgment is hereby entered for the Applicant against the Respondent for KShs.2,149,975/=. In terms of Rule 7 of the Advocates Remuneration Order, I award interestonthe decretal sum at the rate of 14% per annum.On recordisaletterdated29th March, 2016 delivering to the Respondent a block bill. Under Rule 7 of the Advocates Rules, therateof14%interest applies to the decretal sum 30 days from the date of service of the block bill. Inthis regard, decretal sum shall attract interest from 29th April, 2016 until payment in full. The Advocate shall also have the costs of the suit.
It is so decreed.
DATED AND DELIVERED AT MERU THIS 15TH DAY OF MARCH, 2017.
ALFRED MABEYA
JUDGE