[2023] KEHC 21940 (KLR)

Joe Ngigi & Company Advocates LLP v Kenyan Alliance Insurance Company Limited (Miscellaneous Civil Application E246 of 2022) [2023] KEHC 21940 (KLR) (27 July 2023) (Ruling)

Neutral citation: [2023] KEHC 21940 (KLR)

Republic of Kenya

In the High Court at Kisii

Miscellaneous Civil Application E246 of 2022

PN Gichohi, J

July 27, 2023

Between

Joe Ngigi & Company Advocates Llp

Applicant

and

Kenyan Alliance Insurance Company Limited

Respondent

Ruling

1. The Applicant has moved this court by way of a Notice of Motion dated January 16, 2023 brought under Section 51 (2) of the Advocates Act. The Advocate /Applicant seeks orders that judgment be entered his favour for the sum of Ksh 94,600/= being the certified costs due to the Applicant against the Respondent. He also seeks costs of this application together with interest on the taxed sum from the date of taxation.

2. In the affidavit sworn on January 16, 2023 by Joseph N Ngigi , the Applicant states that after the Respondent instructed him to act for the Defendant in Kisii CMCC No 737 of 2021 Wilfred Odhiambo Geyo v Peter Okero Nyatara. The Respondent however failed to pay the Applicant his legal fees thus necessitating the Applicant to file his Bill of Costs. The Bill was taxed and a Certificate of Costs duly issued . The Respondent still refused and /or neglected to pay and hence this application.

Determination 3. I have considered this application and the annextures thereto which confirm that there is a Certificate of Taxation for of Ksh 94,600/= dated January 10, 2023. From the Court record and annextures thereto, the Applicant acted for the Defendant in the above stated case as duly instructed by the Respondent.

4. The Applicant filed the Advocate/Client Bill of Costs dated October 18, 2022 and a notice was duly served on the Respondent but he did not respond or attend court for the taxation. The Bill was therefore not challenged.

5. Though served with this application, the Respondent did not file any response and did not attend court. The Certificate of Costs has not been set aside and there are no outstanding proceedings to set it aside.

6. Section 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 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.”

7. In the circumstances, this Certificate of Taxation dated January 10, 2023 is therefore final and, in the circumstances, the Applicant should be allowed to enjoy the fruits of his labour.

8. Further, paragraph 7 of the //Advocates (Remuneration) Order provides that:“An advocate may charge interest at 14 per cent per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, provided that such claim for interest is raised before the amount of the bill shall have been paid or tendered in full.”

9. The application dated January 16, 2023 is allowed in the following terms:-1. Judgment be and is hereby entered in favour of the Applicant as against the Respondent in the sum of Ksh 94,600/= together with interest thereon at fourteen (14%) per cent per annum calculable after Thirty (30) days from the date when this application was served upon the Respondent until payment in full.2. The Applicant is at liberty to execute the same as against the Respondent.3. Costs are awarded to the Applicant.

DATED , SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS AT KISII THIS 27TH DAY OF JULY , 2023. PATRICIA GICHOHIJUDGEIn the presence of:N/A for Advocate /ApplicantN/ A for the Client/RespondentKevin Isindu, Court Assistant