[2016] KEHC 5225 (KLR)
The court held that the certificate of costs dated 10.11.2015 had not been challenged by the respondent through a reference or any other means. The issues raised by the respondent, including consolidation of matters, service of bills, and compliance with statutory provisions, should have been raised at the time of...
Source-derived case information.
- Citation
- [2016] KEHC 5225 (KLR)
- Parties
- Applicant: Kopot & Company Advocates; Respondent: Walter Edwin Ominde
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 21 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Certificate of Costs
- Outcome
- application allowed with costs
- Legal Topics
- Taxation of Costs, Certificate of Costs, Advocate Client Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kopot & Company Advocates
Applicant
Walter Edwin Ominde
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment on Certificate of Costs
Legal Issues
- 1 Whether judgment should be entered against the respondent in accordance with the certificate of costs.
- 2 Whether the respondent's objections regarding consolidation, service, and compliance with the Advocates Act should prevent entry of judgment.
- 3 Whether the certificate of costs is final and binding in the absence of a reference or challenge.
Ratio Decidendi
The court held that the certificate of costs dated 10.11.2015 had not been challenged by the respondent through a reference or any other means. The issues raised by the respondent, including consolidation of matters, service of bills, and compliance with statutory provisions, should have been raised at the time of taxation or by way of reference to the court. Since the respondent failed to do so, the certificate of costs is final and binding under Section 51(2) of the Advocates Act. The court found no basis to refuse the application and allowed it, entering judgment for the applicant as per the certificate of costs.
Court Disposition
application allowed with costs
Orders
- Judgment is entered in favour of the applicant against the respondent in accordance with the certificate of costs dated 10.11.2015.
- The respondent shall pay the applicant the sum certified in the certificate of costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. APPLICATION 21 OF 2014
KOPOT & COMPANY ADVOCATES.....................ADVOCATE/APPLICANT
VERSUS
WALTER EDWIN OMINDE..........................................CLIENT/RESPONDENT
R U L I N G
By his application dated 1. 12. 2015 the advocate prays for the following orders against the respondent (client):
(a) that the judgment be entered and decree issued against Walter Ominde, the respondent herein in accordance to the certificate of cost dated 10. 11. 2015 at Kisumu on 30. 11. 2015 by the Honourable P. W. Mbulikah being the Deputy Registrar of the High Court at Kisumu.
The application is supported by the affidavit of STEPHEN K'OPOT sworn on 15. 12. 2015,
The said affidavit has attached annexures S.4K1 the certificate of costs for Kshs.300,628. 70 dated 10. 11. 2015.
By his replying affidavit dated 26/4/2016, the respondent has opposed the application on several grounds. Primarily the opposition centres on the following issues:
(a) that all the matters the advocate has acted for to be consolidated and accounts be taken
(b) the same offends the provisions of section 48,51 and 62A of the Advocates Act.
(c) that there are 2 bills namely that of Kshs.228,234 /= and 409,472,172/= and that there was no prove that he was served with the bills.
The court has also perused the written submissions by the respondent. Respectifully the issues raised are weighty and substantive. They are issues which in my opinion ought to have been raised at the time of taxation or at least by way of a reference. If for instance the client had made payments earlier on to the advocate the same ought to have been raised at the time of taxation.
Further if the client had not been served or for that matter section 48 of Cap 16 had not been complied with, the taxing master ought to have been notified.
As it is, the certificate of costs dated 10. 11. 2015 has not been challenged in anyway. If this court were to be pursuaded by the respondent's submissions then it would be sitting on appeal on the taxing master's certificate.
A closer perusal of the proceedings in this file clearly shows that on 26. 3.2015 the court set aside an ex-parte taxation thus giving room to the respondent to have the bill taxed inter-parties.
There is no explanation as to why the respondent did not raise these issues before the Deputy Registrar nor file a reference as is envisaged.
Consequently, this court's hands are tied by the provisions of Section 51(2) of Cap.16 which states as follows:
“The certificate of 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.”
In the premises the application dated 15. 12. 15 is allowed with costs.
Dated, signed and delivered this 18th day of May 2016.
H. K. CHEMITEI
J U D G E