[2019] KEHC 6327 (KLR)
The court found that the applicant's bills of costs had been taxed and certificates of costs issued, none of which had been set aside or altered. There was no dispute as to retainer. The respondent, though served, did not oppose the application. Section 51(2) of the Advocates Act empowers the court to enter judgment...
Source-derived case information.
- Citation
- [2019] KEHC 6327 (KLR)
- Parties
- Applicant: L.G. Menezes & Company Advocates; Respondent: African Merchant Assurance Company Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 178, 179, 180, 181, 186 &191; of 2018
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Judges
- TW Cherere
- Legal Topics
- Taxation of Costs, Certificate of Taxation, Interest on Costs, Advocate Client Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
L.G. Menezes & Company Advocates
Applicant
African Merchant Assurance Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether judgment should be entered for the applicant on the basis of the certificate of taxation which has not been set aside or altered.
- 2 Whether the applicant is entitled to interest at 14% per annum on the taxed costs from the date specified by law.
- 3 Whether the applicant is entitled to costs of the application.
Ratio Decidendi
The court found that the applicant's bills of costs had been taxed and certificates of costs issued, none of which had been set aside or altered. There was no dispute as to retainer. The respondent, though served, did not oppose the application. Section 51(2) of the Advocates Act empowers the court to enter judgment on such certificates. Rule 7 of the Advocates Remuneration Order entitles the advocate to interest at 14% per annum from 30 days after service of the bill of costs. Evidence showed the bills were served on 20th August 2018, making interest payable from 20th September 2018. The court therefore entered judgment for the applicant for the taxed sums, interest at 14% per annum from...
Court Disposition
application allowed
Orders
- Judgment entered for the applicant against the respondent in Kisumu Misc. Civil Application Nos. 178, 179, 180, 181, 186 to 191 of 2018 for the respective taxed sums.
- Interest to accrue on the taxed costs at 14% per annum from 20th September 2018 until payment in full.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
MISC. CIVIL APPLICATION NO 178 OF 2018
(CONSOLIDATED WITH MISC. CIVIL APPLICATION NOMISC. CIVIL APPLICATION NO 179, 180, 181, 186 TO 191OF 2018
BETWEEN
L.G. MENEZES & COMPANY ADVOCATES...............................APPLICANT/ADVOCATE
AND
AFRICAN MERCHANT ASSURANCE COMPANY LIMITED.....RESPONDENT/CLIENT
JUDGMENT
1. By a notice of motion dated 10th June, 2019, brought under Section 51(2) of the Advocates Act, 2009 Cap 16 Laws of Kenya and Section 3A of the Cavil Procedure Act; the applicant prays for orders: -
a) THAT judgment be entered for the Applicant against the Respondent for the taxed Costs as per the Certificate of Costs dated 15th October, 2018 together with interest at 14% from 15th October, 2018 till payment in full
b)That the order to apply to KISUMUMISC. CIVIL APPLICATION NO179, 180, 181, 186 to 191 OF 2018
c) THAT costs of the application be provided for
2. The motion is premised on the grounds on the body of the application and the supporting affidavit sworn on 10th June, 2019 by DANCAN OTIENO NJOGA, Advocate for the Applicant. He avers that the Bill of Costs KISUMUMISC. CIVIL APPLICATION NO 178KISUMUMISC. CIVIL APPLICATION NO 178,179, 180, 181, 186 to 191 OF 2018 were taxed at Kshs. 120,744/-; Kshs. 94,237/-; Kshs. 89,697/; Kshs. 77, 283/-; Kshs. 66, 147/-; Kshs. 125,160/; Kshs. 138,196/-; Kshs. 146,966. 50; Kshs. 176,288. 46and Kshs. 115,492/-respectively and has annexed Certificates of Costs dated 29th April, 2019. He additionally avers that the client has not paid the said amounts and requests for judgment for the entire sum.
3. When the application came for hearing on 20th June, 2019, the respondent though served with the application did not attend send a representative to court and the application is therefore unopposed.
4. Section 51 of the Advocates Act makes general provisions as to taxation, as the marginal note indicates. One of those provisions is that the court has discretion to enter judgment on a Certificate of Taxation which has not been set aside or altered, where there is no dispute as to retainer. This in my view is a mode of recovery of taxed costs provided by law, in addition to filing of suit.
5. There is no dispute as to retainer. As it stands now the Certificates of Taxation for Kshs. 120,744/-; Kshs. 94,237/-; Kshs. 89,697/; Kshs. 77, 283/-; Kshs. 66, 147/-; Kshs. 125,160/; Kshs. 138,196/-; Kshs. 146,966. 50; Kshs. 176,288. 46and Kshs. 115,492/-dated 29th April, 2019 have neither been set aside nor altered. In the circumstances, I see no reason to deny the Advocate, judgment as sought.
6. Rule 7 of the Advocates Remuneration Order provides that: -
“An advocate may charge interest at 14% 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.”
7. The rate of interest awardable is 14% per annum applicable from 30 days after the date of service of either the Bill of Costs. There is evidence that the Bill of Costs were served by registered post on 20th August, 2018and interest is therefore payable from 20th September, 2018.
8. The upshot of this is that the notice of motion dated 10th June, 2019 succeeds and is allowed in the following terms:
a) Judgment is hereby entered for the advocate against the Respondent inKISUMUMISC. CIVIL APPLICATION NO 178,179, 180, 181, 186 to 191 OF 2018 for the sum of Kshs. 120,744/-; Kshs. 94,237/-; Kshs. 89,697/; Kshs. 77, 283/-; Kshs. 66, 147/-; Kshs. 125,160/; Kshs. 138,196/-; Kshs. 146,966. 50; Kshs. 176,288. 46and Kshs. 115,492/- respectively
b) Interest shall accrue on the taxed costs at 14% per annum from20th September, 2018 until payment in full
c) The Advocate will also have the costs of this application.
DATED AND SIGNED IN KISUMU THIS27th DAY OFJune 2019
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
For the Applicant /Advocate - Mr. Njoga
For the Respondent/Client- N/A