[2024] KEHC 7847 (KLR)
The court held that the applicant is entitled to judgment for the taxed costs as per the certificate of taxation, as the respondent did not dispute the retainer or the amount. However, the applicant failed to provide evidence that a claim for interest at 14% per annum was raised at the time of serving the bill, as...
Source-derived case information.
- Citation
- [2024] KEHC 7847 (KLR)
- Parties
- Applicant: Kinyanjui Njuguna & Co Advocates; Respondent: Board of Trustees National Social Security Fund
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E438 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Judgment on Taxed Costs
- Outcome
- application allowed in part
- Judges
- JWW Mong'are
- Legal Topics
- Taxation of Costs, Advocate Remuneration, Interest on Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kinyanjui Njuguna & Co Advocates
Applicant
Board of Trustees National Social Security Fund
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Judgment on Taxed Costs
Legal Issues
- 1 Whether the applicant is entitled to judgment for the taxed costs as per the certificate of taxation.
- 2 Whether the applicant is entitled to interest at 14% per annum from the date claimed.
- 3 Whether the applicant is entitled to costs of the application.
Ratio Decidendi
The court held that the applicant is entitled to judgment for the taxed costs as per the certificate of taxation, as the respondent did not dispute the retainer or the amount. However, the applicant failed to provide evidence that a claim for interest at 14% per annum was raised at the time of serving the bill, as required by Paragraph 7 of the Advocates (Remuneration) Order. Therefore, interest is only payable from the date of the certificate of taxation, not from the earlier date claimed by the applicant. The application was allowed to the extent that judgment is entered for the taxed sum with interest at 14% per annum from the date of the certificate of taxation until payment in full,...
Court Disposition
application allowed in part
Orders
- Judgment entered in favour of the applicant for Kshs. 121,628 against the respondent.
- Interest at 14% per annum awarded from 5th October 2023 (date of certificate of taxation) until payment in full.
Full Case Text
Judgment text and source record
24 paragraphs
Kinyanjui Njuguna & Co Advocates v Board of Trustees National Social Security Fund (Miscellaneous Application E438 of 2022) [2024] KEHC 7847 (KLR) (Commercial and Tax) (24 June 2024) (Ruling)
Neutral citation: [2024] KEHC 7847 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts)
Commercial and Tax
Miscellaneous Application E438 of 2022
JWW Mong'are, J
June 24, 2024
Between
Kinyanjui Njuguna & Co Advocates
Applicant
and
The Board of Trustees National Social Security Fund
Respondent
Ruling
1. By a Notice of Motion dated 23rd October 2023 brought under Order 51, Rule 1 of the Civil Procedure Rules, Section 52 of the Advocates Act and Rule 7 of the Advocates (Remuneration) Order, the Applicant seeks orders:-1. That the Honourable Court be pleased to enter judgment/ decree for Kshs. 121,628/-.2. That interest be provided for at 14% per annum from 14th March 2019 until payment in full.3. That the cost of the Application be awarded to the Applicant.
2. The grounds set on the face of the application and the annexed affidavit sworn by Advocate Kinyanjui Theuri on 23rd October 2023, are that the costs due to the Advocates in relation to the services rendered in Kisii Misc HC App 99 of 2011, Republic v Chief Magistrate Court, Board of Trustees (NSSF) & Isaac Nderitu Githui (Ex-Parte) were taxed by the Court at Kshs.121,628/- and a Certificate of Taxation issued but the Respondent has continually failed to pay legal fees despite demand and notice thereof and that the Respondent has not disputed the fees.
3. In response, the Respondent filed a ground of opposition on the grounds that prayer 2 of the notice of motion has no legal basis and it legally untenable, frivolous, vexatious and misconceived.
4. On 5th March 2024, the Court directed the parties to file their written submissions.
Analysis and Determination 5. I have considered the application, the grounds of opposition and the submissions. 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.”
6. The Applicant submitted that it is entitled to interest at 14% p.a. from 14th March 2019 because that was the date that it sent the correct fee note to the Respondent. It relied on the decision of the court in the case of D. Njogu & Company Advocates v Kenya National Capital Corporation [2006] eKLR in addition to Paragraph 7 of the Advocates (Remuneration) Order which 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.”
7. From the above, it is clear that the advocate was entitled to charge interest one month from the delivery of the bill dated 6th June 2022. However, there is no basis for the Applicant to charge interest from that period as it has not availed evidence to show that it raised a claim for 14% interest when the bill was served as required. See Machira & Co. Advocates v Arthur K. Magugu & Another [2019] eKLR and Kithi & Company Advocates v Menengai Downs Limited [2015] eKLR.
8. In the upshot, the Application dated 23rd October 2023 is therefore allowed in the following terms:-1. Judgment be and is hereby entered in favour of the Applicant as against the Respondents in the total sum of Kshs. 121,628/- with interest thereon at fourteen (14%) per cent per annum from the date the certificate of taxation was issued by the Court on 5th October 2023 until payment in full.2. Costs of the Application are awarded to the Applicant.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF JUNE, 2024. ………………………………………..J.W.W. MONG’AREJUDGEIn the Presence of:-Ms. Aol for the Advocate/Applicant.Mr. Muuo holding brief for Mrs. Mbaabu for the Respondent.Amos - Court Assistant