[2009] KEHC 2780 (KLR)
The court found that the applicant had established his entitlement to the entry of judgment for the taxed costs, as the certificates of costs were issued by the deputy registrar, the retainer was not disputed, and the respondent failed to oppose the application. Section 51(2) of the Advocates Act was applied, which...
Source-derived case information.
- Citation
- [2009] KEHC 2780 (KLR)
- Parties
- Applicant: Rajni K. Somaia; Respondent: Delphis Bank Ltd
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 52 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Entry of Judgment After Taxation of Costs
- Outcome
- Application allowed in part; judgment entered for the certified sum; stay of execution order affects further relief.
- Legal Topics
- Advocate Remuneration, Taxation of Costs, Entry of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rajni K. Somaia
Applicant
Delphis Bank Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Entry of Judgment After Taxation of Costs
Legal Issues
- 1 Whether the applicant is entitled to entry of judgment for the taxed costs as per the certificates of costs.
- 2 Whether the absence of a dispute on retainer and lack of response from the respondent justifies granting the orders sought.
- 3 Whether a stay of execution order affects the grant of all prayers in the application.
Ratio Decidendi
The court found that the applicant had established his entitlement to the entry of judgment for the taxed costs, as the certificates of costs were issued by the deputy registrar, the retainer was not disputed, and the respondent failed to oppose the application. Section 51(2) of the Advocates Act was applied, which provides that the certificate of the taxing officer is final as to the amount of costs unless set aside or altered by the court. The absence of any objection or response from the respondent further justified granting the orders sought. However, due to a prior order staying execution in similar matters, not all prayers could be granted at this stage.
Court Disposition
Application allowed in part; judgment entered for the certified sum; stay of execution order affects further relief.
Orders
- Prayer (a) of the application is granted: judgment is entered for KShs.479,362.10 as per the certificates of costs.
- Prayer (c) of the application is granted.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
IN THE MATTER OF AN ADVOCATE
AND
IN THE MATTER OF THE ADVOCATE’S REMUNERATION ORDER
BETWEEN
RAJNI K. SOMAIA ……………………………………..……….. APPLICANT
VERSUS
DELPHIS BANK LTD ………………………………………… RESPONDENT
RULING:
S. 51(2) of the Advocates Act 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 therein 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.”
The present application dated 21st April 2008, is for the entry of judgment for the sum of KShs.479,362/10cts on the basis of the certificates of costs annexed to the applicant’s supporting affidavit (i.e. Annexure marked KShs.1 a, b & c). It is indicated by the applicant that the retainer is not disputed. He deponed that he was instructed to defend the respondent in the material suits and thereafter raised fee notes which were not honoured. He then presented Bills of Costs for taxation and this was done on 23rd May 2004. Thereafter, on the 11th April 2008, the deputy registrar issued, the appropriate Certificates of Costs. The respondent despite being served with the application failed and/or neglected to file any response and/or objection thereto.
Consequently, the application is unopposed and satisfactory for the grant of the basic order sought i.e. entry of judgment.
Prayer (a) of the application is granted along with prayer (c).
However this Court having earlier on 27th November 2008, being notified of the existence of an order staying execution in such matters, prayer (b) may not be granted at this juncture.
Dated and Signed at Kisumu this 26th day of January 2009.
J. R. KARANJA
JUDGE
J.R.K./mo