[2022] KEHC 16583 (KLR)

Crop Health Technologies Limited v Agritechno East Africa Limited & another (Civil Case E261 of 2019) [2022] KEHC 16583 (KLR) (Commercial and Tax) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16583 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case E261 of 2019

WA Okwany, J

December 8, 2022

Between

Crop Health Technologies Limited

Plaintiff

and

Agritechno East Africa Limited

1st Defendant

Agritechno Fertilizantes SL

2nd Defendant

Ruling

1. Through the application dated October 13, 2021 the 1st defendant seeks the adoption of the certificate of costs dated October 15, 2020 as the judgment and decree of this court. The 1st defendant also seeks the entry of judgement in the sum of Kenya Shillings Six Hundred and Six Thousand and Fifty shillings, (Kshs. 606, 050/=) together with interest at 14% per annum from the 4th of February 2020 until payment in full. The applicant further seeks the costs of this application.

2. The application is supported by the affidavit sworn by 1st defendants advocate Dennis Karani and is premised on the following grounds:-1. The 1st defendant filed its party and party bill of costs dated February 4, 2020 and the same was taxed on September 29, 2020. 2.The party and party costs were taxed at Kenya Shillings Six Hundred and Six Thousand and Fifty Shillings, (Kshs. 606,050/=)3. The 1st defendant obtained a certificate of costs dated October 15, 2020. 4.The certificate of costs has not been challenged, altered and/or varied and so it remains the final order of the court as regards the issue of quantum of costs payable.5. It is in the interest of justice that this application be allowed as prayed.

3. There was no replying affidavit on record by the time this court was writing this judgment and I can therefore safely conclude that none was filed.

4. The application was canvassed by written submissions which I have considered.

5. The applicant submitted that the bill of costs dated February 4, 2020 was taxed on September 29, 2020 at Kshs 606,050 and a certificate of costs was issued on October 15, 2021. It was submitted that the certificate of costs has not been set aside or altered and that the court should allow the orders as prayed. It was further submitted that the applicant is entitled to interest as the respondent has not paid the taxed costs despite service with the certificate of costs.

6. The respondent conceded that it does not oppose the application but sought leave to pay the amount in instalments.

7. I have considered the application and the submissions on record. It was not disputed that the certificate of costs dated October 15, 2020 has not been set aside or altered by the court. The applicant invoked section 51 (2) of the Advocates Act which provides 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."

8. In Lubulellah & Associates Advocates vs N K Brothers Limited[2014] eKLR the court observed that:-“The law is very clear that once a taxing master has taxed the costs, issued a certificate of costs and there is no reference against his ruling or there has been a ruling and a determination made and not set aside and/or altered, no other action would be required from the court save to enter judgment. An applicant is not required to file suit for the recovery of costs. The certificate of costs is final as to the amounts of the costs and the court would be quite in order to enter judgment in favour of the applicant against the respondent herein for the taxed sum indicated in the certificate of taxation that was issued on November 25, 2012. ”

9. The respondent does not oppose the application but requested to be allowed to pay the costs by instalments. The prayers sought are granted at the discretion of the court. I however note that the respondent has not advanced any grounds to warrant the exercise of the court’s discretion and has not made any tangible proposal on the amount that it seeks to be allowed to pay by instalments.

10. In the upshot I find merit in the application dated October 13, 2021 which I hereby allow as prayed.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF DECEMBER 2022. W. A. OKWANYJUDGEIn the presence of:-Mr. Muhatia for respondent.Mr. Karani for 1st defendantCourt Assistant- Sylvia