https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12569

Kiarie, Kariuki & Associates Advocates v Occidental Insurance Company Ltd (Civil Miscellaneous Application E1717 of 2025) [2026] KEHC 12569 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 12569 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Application E1717 of 2025 KL Kandet, J July 23, 2026 Between Kiarie, Kariuki & Associates Advocates Applicant and Occidental Insurance Company Limited Respondent Judgment 1.By Notice of Motion dated 18th March, 2026, expressed to be brought under section 51(1)(2) of the Advocates Act, Order 51 of the Civil Procedure Rules, the Advocate/Applicant seeks the following orders:a.That the Honourable Court be pleased to enter judgment for the Applicant against the Respondent in the sum of Kshs.70,900.00, as certified by the Deputy Registrar in the certificate of costs dated 17th February, 2026.b.That the sum of Kshs.70,900/= in costs be paid with interest at the rate of 14% per annum from 8th February 2026 being the date one (1) month after the service of the bill of costs on the client until payment in full pursuant to Order 7 of the Advocates Remuneration (Amendment) Order 2014c.Costs for this application be provided for. 2.The Application is based on the grounds on the face of it, the Supporting Affidavit sworn by Syengo Maria and the documents annexed thereto. 3.The Applicant’s Advocate–Client Bill of Costs was taxed and a Certificate of Taxation for Kshs.70,900/= issued on 17th February, 2026.The Certificate has neither been set aside nor altered. It therefore seeks judgment on the certified amount together with interest and costs. 4.The Client/Respondent opposed the Application through the Replying Affidavit sworn by Michael Shisia, Assistant Legal Manager, on 26th May, 2026. The Client does not contest the retainer, the taxation or the certified sum. Its opposition is directed at the prayer for interest at 14% per annum. 5.The Respondent’s/Client’s position is that rule 7 of the Advocates (Remuneration) Order permits interest at 14% only where the Advocate has delivered a fee note, bill or claim for payment to the Client; one month has elapsed from the date of delivery; and the claim for interest was raised before the amount was paid or tendered in full. It contends that the Advocate has not produced credible evidence showing service of the Bill of Costs or the date of such service. 6.The Respondent/Client further contends that the document marked “SN-3” relates to service of the ruling and the Certificate of Taxation after taxation had been concluded and cannot constitute proof of delivery of the Bill of Costs. According to the Client, there is no acknowledged copy of the Bill, affidavit of service, dispatch note, courier receipt or email transmission record from which the Court may ascertain when the period contemplated under rule 7 began to run. 7.The Advocate–Client Bill of Costs dated 10th December, 2025 arose from Milimani Small Claims Court Claim No. E2584 of 2024, Harrison Nasaba Nyongesa v Edward Jumba Lihanda & Rwaken Investments Limited. The Advocate states that it received instructions to enter appearance and defend the claim to conclusion. The Bill was drawn at Kshs.87,850/= and item 24 thereof contains a claim for interest at 14% per annum. 8.There is an Affidavit of Service on record by the Applicant which was sworn by Sylvester Dede on 9th January, 2026. He depones that on 8th January, 2026 he received two copies of the Taxation Notice dated 6th January, 2026 and two copies of the Advocate–Client Bill of Costs dated 10th December, 2025 for service upon the Client. He states that at about 10.50 a.m. on the same day he proceeded to the Client’s offices at Crescent Business Centre, 7th Floor, Parklands Road, Nairobi, where the receptionist received the Taxation Notice and the Bill of Costs and stamped the Taxation Notice. 9.The copy of the Taxation Notice annexed to that Affidavit bears the Client’s receipt stamp dated 8th January, 2026. It notified the Client that the Bill dated 10th December, 2025 had been fixed for taxation on 15th January, 2026. The Affidavit expressly returns both the Taxation Notice and the Advocate–Client Bill of Costs as duly served. 10.There is also a second Affidavit of Service sworn by Sylvester Dede on 15th January, 2026. It states that a Ruling Notice was served at the same offices on 15th January, 2026. The annexed notice bears the Client’s receipt stamp of that date. Further, the taxation ruling records that the Client had been served, that the Affidavit of Service dated 9th January, 2026 was on record and that the Bill proceeded unopposed. 11.The Advocate subsequently served a letter dated 20th February, 2026 enclosing the taxation ruling and Certificate of Taxation and demanding payment of Kshs.55,100/= within seven days. The letter bears the Client’s received stamp. Analysis and Determination 12.I have carefully read the affidavit evidence on record in support of and in opposition to the Application. I have also considered the Bill of Costs, the Certificate of Taxation as acknowledged by both parties, the affidavit of service and the applicable law. In my view, the following issues arise for determination:i.Whether the statutory threshold for entry of judgment under section 51(2) of the Advocates Act has been met.ii.Whether the Advocate is entitled to interest at 14% per annum and, if so, the date from which such interest should run.iii.What orders should issue on interest at court rates and costs. 13.Section 51(2) of the Advocates Act provides as follows:“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.” 14.The legal effect of the above provision is that a Certificate of Taxation which has not been set aside or altered is final as to the quantum of costs. Where the retainer is not disputed, the Court may enter judgment for the sum certified as due. This position was restated by the Court of Appeal in Titus Makhanu & Associates Advocates v Alicate Holdings Limited [2025] KECA 1834 (KLR).“After the taxation, the total amount owing to the advocate is included in a Certificate of Costs. That amount is the totality of the indebtedness of the client to the advocate. The only other amount the advocate can charge from that date is interest on the taxed amounts; and costs for the taxation or adoption proceedings.” 15.In addition, in the case of Lubulellah & Associates Advocates v N K Brothers Limited [2014] eKLR the same position was stated.“The law is very clear that once a taxing master has taxed the costs, issued a Certificate of Costs and there is no reference against his ruling or there has been a ruling and a determination made and not set aside and/or altered, no other action would be required from the court save to enter judgment. An applicant is not required to file suit for the recovery of costs.” 16.In the instant case, the Certificate of Taxation issued on 17th February, 2026 has not been challenged by way of a reference under paragraph 11 of the Advocates (Remuneration) Order. There is no allegation that it has been set aside or altered. The Respondent expressly limits its response to interest and does not dispute the Advocate’s retainer in the underlying matter. The Certificate is therefore final as to the amount of Kshs.70,900/=. 17.The Client’s contention that judgment should not be entered because the question of interest remains unresolved cannot stand. The certified principal sum and interest are distinct. Section 51(2) renders the Certificate final as to the costs covered by it, while rule 7 separately regulates an Advocate’s entitlement to the special rate of interest. A dispute confined to interest does not reopen the taxed amount. 18.On interest, rule 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, providing such claim for interest is raised before the amount of the bill has been paid or tendered in full.” 19.From the plain wording of the rule, interest at 14% is not automatic upon taxation. The Advocate must establish delivery of the bill to the Client, that the claim for interest was raised before payment or tender in full and that one month elapsed after delivery. The date of delivery is therefore not a peripheral fact; it is the statutory point from which accrual is computed. 20.The Court of Appeal considered this question in Otieno, Ragot & Company Advocates v Kenindia Assurance Company Limited [2023] KECA 1398 (KLR).“Relying on the case of D Njogu and Company Advocates vs Kenya National Capital Corporation, the respondent’s response was that the period from when interest will accrue is a matter to be left to the discretion of the court…. As such [Rule 7] deals with interest chargeable by an advocate in respect of its claim for disbursements and costs following submission of a fee note. It is patently clear from the rule that interest begins to accrue from the expiry of one month from the date of delivery of the bill or fee note.”The Court held that an Advocate cannot charge interest under rule 7 without notifying the Client and that it is incumbent upon the Advocate to put the Client on notice of the totality of the claim, including the claim for interest at 14% per annum. This authority is binding on this Court. 21.The burden of proving delivery and the date thereof rests upon the Advocate under sections 107 and 109 of the Evidence Act. Unlike the position presented in the Client’s Replying Affidavit, the Affidavit of Service sworn on 9th January, 2026 expressly proves that both the Taxation Notice and the Advocate–Client Bill of Costs were delivered to the Client on 8th January, 2026. The received stamp on the Taxation Notice corroborates the date, place and fact of service. 22.Although the Client stamped the Taxation Notice rather than the face of the Bill, that does not displace the sworn evidence that the two documents were served together. The process server identified the documents received for service, the person upon whom service was affected, the place and time of service, and returned both documents as duly served. The Client did not specifically contest that the Bill was not received on 8th January, 2026; its complaint was that proof of such service had not been exhibited. That evidential complaint is answered by the sworn Affidavit dated 9th January 2026 and its annexure. 23.The subsequent service of the Ruling Notice on 15th January, 2026 and the notation in the taxation ruling that the Affidavit of Service dated 9th January, 2026 was on record provide further corroboration that the Client had notice of the taxation proceedings. The Client did not oppose the Bill and has not applied to set aside the taxation or cross-examined the deponent on service. 24.Item 24 of the Bill served on 8th January, 2026 expressly claimed interest at 14% per annum. It therefore put the Client on notice, before payment or tender in full, that the Advocate intended to invoke rule 7. The earlier fee note dated 10th June, 2024 did not contain an interest demand, but that omission is not decisive because the later Bill did and was duly delivered before taxation. 25.One calendar month from 8th January, 2026 expired on 8th February, 2026. The taxed costs remain unpaid. I therefore find that the cumulative requirements of rule 7 have been satisfied and the Advocate is entitled to interest at 14% per annum on the certified sum of Kshs.70,900/= from 8th February, 2026 until payment in full. 26.The alternative prayer for interest at court rates does not arise, the Court having allowed the specific statutory interest sought under rule 7. Awarding both rates would amount to double recovery for the same period. 27.On costs, section 27 of the Civil Procedure Act provides that costs follow the event unless the Court, for good reason, orders otherwise. The Advocate/Applicant has succeeded on the principal sum and on the contested claim for interest. The Respondent/Client shall bear the costs to the application. 28.The upshot is that the Notice of Motion dated 18th March, 2026 is allowed in the following terms:a.Judgment is hereby entered in favour of the Advocate/Applicant against the Client/Respondent for Kshs.70,900/= in terms of the Certificate of Taxation issued on 17th February, 2026.b.The above judgment sum shall attract interest at 14% per annum from 8th February, 2026 until payment in full pursuant to rule 7 of the Advocates (Remuneration) Order.c.The costs of the Notice of Motion dated 18th March, 2026 are awarded to the Applicant DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF JULY, 2026 VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIN THE PRESENCE OF:Njenga For The Applicant.No Appearance For The Respondent.Court Assistant: Aggrey.