[2025] KEHC 3063 (KLR)

Kiruki & Kayika Advocates v Monarch Insurance Company Limited (Miscellaneous Civil Application E140 of 2022) [2025] KEHC 3063 (KLR) (17 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3063 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Civil Application E140 of 2022

PN Gichohi, J

March 17, 2025

Between

Kiruki & Kayika Advocates

Applicant

and

The Monarch Insurance Company Limited

Respondent

Ruling

1. Before this Court is the Applicant’s Notice of Motion dated 23rd October, 2023, brought under Section 51(2) of the Advocates Act and seeking for the following Orders:- 1. Judgement be entered in favour of the Applicant as against the Respondent for the sum of Kshs. 98,485/= being the certified costs due to the Applicant as against the Respondent.

2. The Respondent do pay to the Applicant interest on the taxed sum from the date of filling of this Application, until payment in full.

2. The application is premised on the grounds on the face of the application and the Supporting Affidavit sworn on 23rd October, 2023 by Kiruki Mutwiri. He states that the Respondent instructed the firm of Kiruki and Kayika Advocates to act for it in Nakuru SCCC No. 140 of 2022- Monarch Insurance Limited.

3. It is his position that the Respondent failed to pay the legal fees arising from the services rendered thereby necessitating the filing of the Bill of Costs dated 10th November, 2022, which was taxed at Kshs. 98, 485/= and a Certificate of Taxation was issued to that effect on 24th August, 2023.

4. The Applicant therefore seeks that judgment be entered in his favour in the said sum as per the Certificate of Costs and that he be awarded interest on same from the date of filling this application, until payment in full.

5. The application was uncontested as the Respondent failed and or neglected to file any response despite service having been affected as evidenced by the Affidavit of Service filed on 30th January, 2025.

Determination 6. Having considered the application and the Supporting Affidavit, the broad issue for determination is whether the Applicant should be granted the orders sought.

7. To start with, the matter in which the Applicant acted for the Respondent seems to be an erroneous. Whereas the supporting Affidavit refers to Nakuru SCCC No. 140 of 2022- Monarch Insurance Limited , the annexure to the Affidavit and the Bill of Costs shows that he acted in Nakuru CMCC No. 705 of 2021- Mash Bus Services Uganda Limited vs The Monarch Insurance Limited which is an indicator that there was no due diligence in filing the application.

8. If taken as an error that does not go to the core of this application, then Section 51(2) of the Advocates Act which 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 recovered thereby; and the court may make such orders in relation thereto as it thinks fit, including where the retainer is not disputed an order that judgment be entered for the sum of certified to be due with costs.”

9. It is upon the Applicant to satisfy the Court that:-1. The costs have been taxed by and certified under the hand of the Taxing Master by a Certificate of Costs.2. The Certificate of Costs has not been set aside or stayed or appealed against on a reference filed upon it.3. There is no dispute on retainer.

10. The Applicant has exhibited instruction letter from the Respondent dated 16th August, 2021 in regard to Nakuru CMCC No. 705 of 2021- Mash Bus Services Uganda Limited vs The Monarch Insurance Limited and has annexed Certificate of Costs Issued on 24th August, 2023 by Hon. N Makau the Taxing Master therein.

11. There is no dispute as to retainer and no Reference has been filed herein. The Certificate of Costs has not been set aside, altered, varied and / or reviewed. In the circumstances, the prayer for entry of judgment on the taxed costs is merited.

12. On interest sought, Rule 7 of the Advocates Remuneration Order provides that:-“An advocate may charge interests at 14% per annum on his disbursement and costs whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, such claim for interests is raised before the amount of the bill has been paid or tendered in full.”

13. From the above provision, an Advocate is entitled to interest at the rate of 14% at expiry of one month from the date of delivery of the Bill to his client. The condition thereof is that the claim on the said interest should be raised before the bill is paid.

14. There is evidence of service of the Bill of costs to the Client and also the Notice of Taxation. The Certificate of Costs was also served on the Respondent and so was this application but there was no response whatsoever from the Respondent.

15. However, there is no evidence that the Applicant raised the claim of interest with the Respondent or in the Bill of costs. In the circumstances, the interest will be from the date of filing of this application as prayed for by the Applicant which is 27th October 2023 but it will be at Court rates.

16. Lastly there was no prayer for costs in this application and even though costs normally follow the event, this Court finds no reason to award the same in the circumstances herein.

17. In conclusion therefore, this Court makes the following Orders:-1. The Certificate of Costs dated 24th August, 2023 in the sum of Kenya Shillings Ninety-Eight Thousand Four Hundred and Eighty-Five (Kshs. 98,485/= ) be and is hereby adopted as a Judgment of this Court.2. Interest on the above at Court rates from 27th October 2023 when this application was filed until payment in full.3. The Applicant to bear his own costs of this application.

DATED , SIGNED AND DELIVERED AT NAKURU THIS 17TH DAY OF MARCH , 2025. PATRICIA GICHOHIJUDGEIn the presence of:Mr. Kamau Muriuki for Advocate/ApplicantN/A for the Client/RespondentRuto, Court Assistant