[2020] KEHC 5200 (KLR)
The court found that the applicant's bill of costs was taxed and a certificate of costs issued, which had not been set aside or altered. The respondent did not dispute the retainer or the taxation, and her pending appeal and application for stay of execution did not operate as a bar to judgment in the absence of a...
Source-derived case information.
- Citation
- [2020] KEHC 5200 (KLR)
- Parties
- Applicant: G.O. Ombachi & Company Advocates; Respondent: Mary Wairimu Kangangi
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 44 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
- Outcome
- application allowed
- Judges
- LW Gitari
- Legal Topics
- Advocate Remuneration, Taxation of Costs, Certificate of Costs, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
G.O. Ombachi & Company Advocates
Applicant
Mary Wairimu Kangangi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
Legal Issues
- 1 Whether judgment should be entered for the applicant based on a certificate of costs that has not been set aside or altered.
- 2 Whether the respondent's pending appeal and application for stay of execution bar the entry of judgment.
- 3 Whether the respondent will suffer irreparable harm if the orders sought are granted.
Ratio Decidendi
The court found that the applicant's bill of costs was taxed and a certificate of costs issued, which had not been set aside or altered. The respondent did not dispute the retainer or the taxation, and her pending appeal and application for stay of execution did not operate as a bar to judgment in the absence of a stay order. The law under Section 51(2) of the Advocates Act is mandatory: once a certificate of costs is issued and not challenged, judgment should be entered for the certified sum. The respondent's claims of payment were unsupported by evidence, and the court found no good reason to deny the application. The application was therefore allowed as prayed, with costs to the...
Court Disposition
application allowed
Orders
- Judgment is entered in favour of the applicant for Kshs 119,080 with interest at court rate from 16th September 2019 until payment in full.
- The applicant is at liberty to execute the decree against the respondent.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERUGOYA
MISCELLANEOUS APPLICATION NO: 44 OF 2018
G.O. OMBACHI & COMPANY ADVOCATES....PLAINTIFF
VERSUS
MARY WAIRIMU KANGANGI........................DEFENDANT
RULING
1. The applicant has filed a Notice of Motion Under Section 51 (2) of the Advocates Act seeking the following orders:
a. THAT judgment be entered in favour of the Applicant for a sum of Kshs; 119,080/= with interest at court rate with effect from 16th September 2019 until payment in full.
b. THAT the applicant be at liberty to execute the decree against the respondent.
c. THATthe respondent to bear the costs of this application in any event.
2. The application is based on the following grounds;
a. The taxing master on 18th July, 2019 assessed the Applicant’s bill of costs at Kshs; 119,080/=
b. The certificate of costs was issued on 16th September, 2019
c. The certificate of costs is final as the same has not been set aside and/or altered by the court.
d. There is no dispute as to retainer
e. It is therefore imperative that the Honourable court do grant the orders being sought in the interest of justice.
3. The respondent Mary Wairimi Kangangi filed a replying affidavit where she depones that the application dated 4th December, 2019 was served upon her under protest. That being dissatisfied with the ruling 18th July, 2019 which was heard ex-parte she filed an appeal number 59 of 2019 on 19th of August, 2019 and an application of stay of execution under certificate of urgency dated 26th August, 2019.
4. The said application has not been heard and determined and that this application is not merited and has been brought in bad faith to mislead the court as there are matters pending in the High Court.
5. That it is in the interest of justice and fairness that the application by the respondent should be denied as there are pending matters in the High Court.
6. That if the orders are granted she will suffer irreparably.
7. When the matter came up for hearing the parties urged the court to decide the application on the affidavits filed, although the respondent applied to be given time contending that she had paid the Advocates and had some receipts. However, the alleged receipts have not been annexed to the replying affidavits.
8. I have considered the application Under Section 51(1) of the Advocates act on general provisions as to taxations it is provided;
“ Every application for an order for the taxation of an Advocate for an order for the advocate’s bill or for the delivery of such a bill and the delivering app of any deeds, documents, papers by an advocate shall be made in the matter of that advocate.
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 in dispute an order that Judgment be entered for the sum certified to be due with costs.”
9. The provision is couched in mandatory terms. In her replying affidavit the respondent has not denied that she had retained the advocate nor has she denied that the bill of costs has been taxed by a taxing officer of this court.
10. It is Trite that an appeal does not operate as a stay of execution and a party must obtain an order from the court staying the execution.
11. The alleged application by the respondent has not been prosecuted and there is no reason why the court should not allow the application by the advocate.
12. The amount claimed by the advocate is a liquated amount which is therefore a money decree and it is trite that a court will normally not order a stay of execution and a party does not render an execution of such decree or order does not render the Appeal nugatory.
13. In the execution of a money decree on a liquated amount, in this case the amount is Kshs; 119,080/=, cannot necessary cause irreparable loss to the applicant.
14. There are no good reasons why the application should not be allowed. The application has been brought within the Provision of the law quoted above.
15. In view of the foregoing I find that the application has merits and I allow it as prayed with costs.
Dated, Signed at Kerugoya this 29th day at May 2020
L.W. GITARI
JUDGE