[2022] KEHC 11124 (KLR)

Kinyanjui Njuguna & Company Advocates v Directline Assurance Company Limited (Miscellaneous Application 19 & 21 of 2020 (Consolidated)) [2022] KEHC 11124 (KLR) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11124 (KLR)

Republic of Kenya

In the High Court at Naivasha

Miscellaneous Application 19 & 21 of 2020 (Consolidated)

GWN Macharia, J

July 19, 2022

Between

Kinyanjui Njuguna & Company Advocates

Applicant

and

Directline Assurance Company Limited

Respondent

Ruling

1. The application for consideration is the applicant’s Notice of Motion dated the 23rd day of April, 2021 brought under order 51 rule 1, section 51 (2) of the Advocates Act, cap 16 and order 7 of the Advocates Remuneration Order. The applicant seeks orders that:1. The honourable court be pleased to consolidate the instant matter with Naivasha High Court Misc Application number 21 of 2020. 2.Pursuant to prayer 1, the honourable court be pleased to enter judgment/decree for kshs 391,802. 00 tabulated as hereunder;i.Miscellaneous Application number 19 of 2020 at kshs 99,309. 00ii.Miscellaneous Application number 21 of 2020 at kshs 292,493. 003. Interest be provided for at 14% per annum from January 26, 2019 until payment in full.4. The costs of the application be awarded to the applicant.

2. The application is based on the grounds on the face of it and supported by the affidavit of one Kinyanjui Theuri, sworn on the 23rd day of April, 2021.

The applicant’s Case 3. It is the applicant’s averment that it filed its advocate bills of cost which said bills was eventually taxed by the court on various dates.

4. It was the applicant’s case that the instructions were withdrawn upon another firm of advocates being appointed by the respondent. The applicant presented their fee notes for settlement and the respondent having failed to settle them within the period provided, the applicant proceeded to have its bills assessed and was issued with certificates of taxation. The applicant thus prays that the court issues judgments/decrees in respect to the said certificates of taxation.

5. As the application and the retainer and/or instructions were uncontested and no appeals has been filed or the Certificate of Costs set aside the applicant prays that judgment be entered as prayed.

6. The respondent despite being served with the said applications filed no response. Additionally, the certificates of costs arising issued to the applicant are yet to be set aside. The applications are unopposed.

Analysis and determination 7. This honourable court having considered the application and the supporting affidavit is only tasked to determine whether the conditions set out in section 51(2) of the Advocates Act have been satisfied. The same reads 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.”

8. The foregoing provision of the law gives the court jurisdiction to enter judgment in the sums as per the certificates of the taxing officer. No evidence has been placed before the court with respect to the said certificates of taxation being set aside or altered.

9. The court further finds that the application is unopposed as despite service being effected, the respondent has neglected to participate in the proceedings and/or file a response to the same.

10. In view of the foregoing, I find that the applicant has satisfied the prerequisites as laid down in section 51(2) of the Advocates Act and exercise my jurisdiction to enter judgment in favour of the applicant against the responded to the certified sums.

11. The court takes a similar position as in the case KTK Advocates v Baringo County Government [2018] eKLR where it was held:“The above section in my understanding, gives the court the jurisdiction to enter judgment for taxed costs where conditions are satisfied. The first condition is that there must be a certificate of the taxing officer by whom the bill has been taxed which certificate has not been set aside or varied by the court. Secondly there must be no dispute as to the retainer. If those two conditions are satisfied, the court has a discretion to enter judgment for the sum certified to be due with costs.The above position has been upheld in numerous decisions of this among them E W Njeru & Co Advocates vs Zakhem Construction (K) Limited [26]a position firmly grounded on the provisions of section 51 (2) of the Advocates Act[27]which I believe is the correct exposition of the law.I find, and hold that the above two conditions have been satisfied in this case, hence there is no reason at all for this court to decline the application to enter judgement as prayed.”

Disposition 12. For all the foregoing reasons, I am satisfied that the applicant’s applications are merited and make the following orders –a.That judgment be and is hereby entered in favour of the applicant herein Kinyanjui Njuguna & Company Advocates against the respondent Directline Assurance Company Limited in the sum of kshs 391,802. 00. plus interests at court rates from the date of taxation.b.That the respondent herein shall bear the costs of the applications the subject of this ruling.

13. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 19TH DAY OF JULY, 2022. G W NGENYE-MACHARIAJUDGEIn the presence of:1………………………………For the applicant.2………………………………For the respondent.