[2013] KEHC 6724 (KLR)
The court held that since the certificate of taxation had not been set aside or altered and there was no dispute as to the retainer, there was no lawful impediment to granting the advocate’s application for judgment on the taxed costs. The client’s objections regarding the agreement on instruction fee and the...
Source-derived case information.
- Citation
- [2013] KEHC 6724 (KLR)
- Parties
- Applicant: Thomas Otieno (t/a Otieno K’Bahati & Company Advocates); Respondent: Daniel Kariiyu Mungai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 298 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
- Outcome
- application granted
- Judges
- DW Mbuteti
- Legal Topics
- Advocate Client Costs, Taxation of Costs, Certificate of Taxation, Retainer Agreement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Otieno (t/a Otieno K’Bahati & Company Advocates)
Applicant
Daniel Kariiyu Mungai
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
Legal Issues
- 1 Whether the advocate is entitled to judgment on the taxed costs under section 51(2) of the Advocates Act.
- 2 Whether there is any lawful impediment to entering judgment where the certificate of taxation has not been set aside or altered and the retainer is not disputed.
Ratio Decidendi
The court held that since the certificate of taxation had not been set aside or altered and there was no dispute as to the retainer, there was no lawful impediment to granting the advocate’s application for judgment on the taxed costs. The client’s objections regarding the agreement on instruction fee and the process of taxation could only be properly addressed through a reference against the taxation, which was not filed. Therefore, the advocate was entitled to judgment for the sum certified in the certificate of taxation, together with costs.
Court Disposition
application granted
Orders
- Judgment is entered for the advocate for the sum certified in the certificate of taxation, KShs 327,900.60, with costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MISC APPLICATION NO 298 OF 2011
IN THE MATTER OF THE ADVOCATES ACT, CAP 16
(ARISING FROM
HCCC NO. 12224 OF 2004
DANIEL KARIIYU MUNGAI ...........................................................PLAINTIFF
VERSUS
EQUITY BUILDING SOCIETY
RAHAB MWIHAKI KAROKI.............................................DEFENDANTS)
BETWEEN
THOMAS OTIENO (t/a OTIENO K’BAHATI &
COMPANY ADVOCATES)................................................ADVOCATE
AND
DANIEL KARIIYU MUNGAI .............................................CLIENT
R U L I N G
1. The Advocate/Client bill of costs herein dated 1st July 2011 was taxed inter partes. In her ruling on taxation dated and delivered on 11th October 2012 the Taxing Officer found that there had been agreement between the parties on instruction fee at KShs 182,000/00. She therefore disallowed the Advocate’s claim on that item at KShs 886,000/00 and only allowed the agreed sum of KShs 182,000/00. Other items in the bill were taxed. The sum of KShs 1,241,653/40 was taxed off and the bill of costs allowed at the total sum of only KShs 327,900/60. A certificate of taxation in that sum was subsequently issued.
2. The Advocate subsequently applied under section 51(2) of the Advocates Act, Cap 16 (the Act) for judgment to be entered upon the taxed costs. This was by notice of motion dated 30th October 2012. The Client has opposed the application. I have read the supporting and opposing affidavits. I have also considered the submissions of the parties.
3. Section 51(2) of the 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. The certificate of taxation herein has not been set aside or altered. Nor is there a dispute as to retainer. Even though the Client may have filed a notice of objection to taxation, he did not file a reference against the taxation as provided for in Paragraph 11 of the Advocates (Remuneration) Order. In his arguments he stated that he opposes the application for judgment because the Taxing Officer found that there had been agreement for the advocate’s fees, and that therefore there should not have been any taxation. But as already seen the Taxing Officer found that there was agreement for instruction fee only at KShs 182,000/00 and allowed instruction fee at that amount. The Taxing Officer was thus entitled to tax the other items in the bill of costs. In any event, whatever problems the Client may have with the taxation, which was done inter partes, can only be properly taken up in a reference against the taxation duly filed under Paragraph 11 of the Remuneration Order. There is not such a reference made.
5. As it is now, there is absolutely no lawful impediment to granting the Advocate’s application, and I hereby grant the same as prayed with costs. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 27TH DAY OF SEPTEMBER 2013