[2007] KEHC 716 (KLR)
The court held that since the certificate of costs had not been set aside or altered and there was no dispute as to retainer, the advocate was entitled to judgment for the full amount certified. The respondent's claim of prior payment was a matter that should have been raised at the taxation stage and did not affect...
Source-derived case information.
- Citation
- [2007] KEHC 716 (KLR)
- Parties
- Applicant: Kamunyori & Company Advocates; Respondent: Cannon Assurance (Kenya) Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 996 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
- Outcome
- application allowed; judgment entered for applicant
- Legal Topics
- Taxation of Costs, Advocate Client Fees, Judgment Entry, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamunyori & Company Advocates
Applicant
Cannon Assurance (Kenya) Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
Legal Issues
- 1 Whether the advocate is entitled to judgment for taxed costs under section 51(2) of the Advocates Act.
- 2 Whether the respondent's payment of part of the fees prior to taxation affects the advocate's entitlement to judgment.
- 3 Whether there is any dispute as to retainer or validity of the certificate of costs.
Ratio Decidendi
The court held that since the certificate of costs had not been set aside or altered and there was no dispute as to retainer, the advocate was entitled to judgment for the full amount certified. The respondent's claim of prior payment was a matter that should have been raised at the taxation stage and did not affect the advocate's right to judgment at this stage. Accordingly, judgment was entered for the advocate for the full taxed amount, with interest and liberty to execute.
Court Disposition
application allowed; judgment entered for applicant
Orders
- Judgment entered for the advocate against the client for KShs. 315,332.00.
- Interest at 9% per annum from 28th April, 2006 until payment in full.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Misc Application 996 of 2005
KAMUNYORI &COMPANYADVOCATES…...ADVOCATE/APPLICANT
V E R S U S
CANNON ASSURANCE (KENYA) LTD .......…CLIENT/RESPONDENT
R U L I N G
There has been considerable delay in the preparation and delivery of this ruling. The same was occasioned by my serious illness in the year 2006 and the long attendant recuperation. The delay is regretted.
This is an application by an advocate under section 51 (2) of the Advocates Act, Cap. 16 (the Act) seeking an order that judgment for taxed costs be entered. Interest is also sought. There is also a prayer that the advocate be at liberty to execute. The application is supported by the affidavit of the advocate.
There is a replying affidavit sworn by one MAINA MUKOMA, the managing director of the client. It was filed on 6th June, 2006. This was outside the seven days granted by the order of 29th May, 2006. The replying affidavit ought to have been filed on or before 5th June, 2006 which was a working day.
As the replying affidavit is nevertheless on the record, I have looked at it. The ground for opposing the application emerging therefrom is that prior to taxation the client had paid to the advocate a total of KShs. 180,880/00 towards his fees, and that the balance of his fees therefore is only KShs. 134,452/00 which the Respondent is willing to pay on acceptance by the advocate that this is the only sum due and owing. In my view this alleged payment is a matter that ought to have been taken up at the taxation.
At the hearing of the application there was no appearance for the client, despite the hearing date having been taken in court on 29th May, 2006 in the presence of its counsel. I have considered the submissions of the advocate. I am satisfied that the certificate of costs herein has not been set aside or altered. I am also satisfied that there is no dispute as to retainer. In the circumstances, therefore, I see no reason why I should deny the advocate judgment as sought.
In the event, I will allow the application. Judgment be and is hereby entered for the advocate against the client for the sum of KShs. 315,332/00. There will be interest on that sum at 9% per annum from 28th April, 2006 until payment in full. The advocate shall be at liberty to execute against the client. I will award costs of this application to the advocate. There will be orders accordingly.
DATED AT NAIROBI THIS 22ND DAY OF AUGUST, 2007
H. P. G. WAWERU
J U D G E
DELIVERED THIS 24th DAY OF AUGUST, 2007