https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3473

Lubulella Associates v Kitongi Investments Ltd & 2 others (Environment and Land Miscellaneous Application E014 of 2021) [2026] KEELC 3473 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEELC 3473 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Miscellaneous Application E014 of 2021 AY Koross, J June 9, 2026 Between Lubulella Associates Advocate and Kitongi Investments Limited 1st Client Bryan Kisaingu Mutina 2nd Client Collins Kivila Mutinda 3rd Client Ruling 1.The advocate’s notice of motion dated 31 October 2025 is the subject of this ruling. It is expressed to have been filed under the provisions of Section 51 of the Advocates Act, Chapter 16 of the Laws of Kenya; Rule 13A of the Advocates Remuneration Rules; Section 3A and 63(e) of the Civil Procedure Rules; and Order 41 Rule 1 of the Civil Procedure Rules, and it seeks the following from this court:a.The court be pleased to enter judgment and issue a decree in favour of the advocate against the clients on the amount of kshs. 387,720/- as certified on the certificate of taxation issued herein on the 8th August, 2025, together with interest at the rate of 14% per annum from the 23rd February, 2021, being the date of lodgment of the bill of costs, until payment in full.b.The costs of this application be provided for. 2.The motion is based on the grounds stated on its face and on the supporting affidavit of counsel Eugene Lubale Lubulellah, sworn on 31 October 2025. Counsel concisely asserts that, on 23rd February 2021, the advocate lodged an advocate/client bill of costs (BOC), which was taxed by the hon. taxing officer in the sum of Kshs. 387,720.00/-. Prior to taxation, the advocate served the clients with a taxation notice and the BOC on 18th December 2024, thereby providing proper notice in accordance with Paragraph 7 of the Advocates' Remuneration Order. Accordingly, the advocate now seeks to realise the costs awarded in the taxation proceedings. 3.The motion is challenged via the clients’ grounds of opposition dated 13 January 2026, where they raised the following grounds: -a.The Advocate never formally made any demand for interest.b.Rule 7 of the Advocates Remuneration (Amendment) Order provides that an advocate can only charge interest from the expiration of one month from the date of the delivery of the bill to the client, providing such a claim for interest is raised before the amount of the bill has been paid or otherwise secured in full.c.Interest, if any, can only be charged as from 17 April 2025, which is the date when the bill of costs was re-taxed by the hon. taxing officer. The legal fees payable to the Advocate only crystallised on 25th April 2025, and interest, if any, should therefore run from 25 April 2025.d.Considering the BOC is exaggerated and exorbitant, it is only just and fair that the interest runs from the date of taxation and not the date of delivery of the bill. 4.Despite court directions on the filing of written submissions within the timelines, none of the counsel representing the parties has complied as at the date of this ruling. In these circumstances, this court has relied on the pleadings and the court record. If, at all, they subsequently file their submissions, they shall automatically stand struck for being filed out of time, without further reference to the court. Accordingly, having carefully considered the motion, its grounds, the affidavit, the annexures, and the grounds of opposition, the following issues, which shall be handled separately and sequentially, arise for determination.a.Whether this court should enter judgment as sought.b.The circumstances and timing under which interest on taxed costs accrue.We now proceed. Whether this court should enter judgment as sought 5.With regard to the pertinent legislation, as articulated in the motion, Section 51(2) of the Advocates Act confers upon this court the authority to issue the judgment sought in the motion. This statutory provision explicitly states:“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.This law clearly states that once a taxing master has assessed the costs, as shown by the hon. taxing officer’s t’s ruling of 17 April 2025, a certificate of costs is issued, similar to the one in this case dated 8 August 2025. Once these are satisfied, it follows that, unless they are set aside and/or altered, or a dispute exists on retainer or if any proceedings are pending before a court of competent jurisdiction and evidence is provided to substantiate this, no other action would be required from the court except to enter judgment. This position of the law is supported by the binding Court of Appeal decision in Peter Odiwuor Ngoge T/A O.P. Ngoge & Associates v Washington Jalango Okumu [2012] KECA 15 (KLR), which clarifies the court’s role in handling such applications as follows:“Her duty in our view, was to look into whether there was a certificate of taxation and whether it was properly drawn and then look into whether retainer was not disputed. If these aspects were satisfied then the court should have acted and given summary judgment. Introducing a new concept called extent of retainer was in our view avoiding the issues that were before the learned Judge for Section 51(2) did not authorise the learned Judge to extend the requirements of the law.” 7.Therefore, this court finds that the certificate of taxation is conclusive and finds that this court possesses the authority to enter judgment for the taxed amount. It also finds that the relief sought by the advocate on this limb is merited. The circumstances and timing under which interest on taxed costs accrue. 8.This court now addresses the final issue regarding whether interest on the advocate’s costs is payable, and if so, when such interest accrues. To resolve these pertinent issues, the court must refer to the relevant law, which is outlined in Paragraph 7 of the Advocates (Remuneration) Order, which states: -“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.” 9.In interpreting this proviso, both the advocate and clients are at variance. The advocate has cited 23 February 2021 as the date from which interest is alleged to have accrued. Upon review of the record, it appears that this date corresponds to the date of the BOC documentation, subsequent to which it was lodged on 10 March 2021. Therefore, it is evident that the advocate is uncertain as to the precise date when the interest began to accrue; whether it is from the date of the dating of the BOC or from the date of lodgment. 10.It has been observed that the clients are similarly uncertain regarding the date on which interest accrued. They have presented two scenarios. It is unfortunate that this court never benefited from the parties’ submissions to appreciate their respective positions. 11.This uncertainty among the parties is neither recent nor unique, having been the subject of conflicting judicial determinations by superior courts. In the persuasive decision of Lubulellah & Associates Advocates v N K Brothers Limited [2014] KEHC 8685 (KLR), the superior court interpreted this provision to signify that a party is expected to raise the issue of interest in its BOC, and if it fails, then it forfeits interest, as provided for under Rule 7 of the Advocates Remuneration Order, and that, in such circumstances, the court can only apply and award the interest at court rates. 12.In Okong’o Wandago & Company Advocates v Invesco Assurance Company Limited [2018] KEHC 3005 (KLR), the court stated that interest is payable at court rates 30 days after service of the BOC upon the client. 13.The Court of Appeal eventually settled the issue in Otieno, Ragot & Company Advocates v Kenya Airports Authority [2021] KECA 587 (KLR), a decision binding upon this court, which clarified that the term “bill” as referenced in Paragraph 7 of the Advocates (Remuneration) Order pertains to a fee note concerning “disbursements and costs” rather than a BOC. It further held that an applicant becomes entitled to interest only after the issuance of such a fee note and the subsequent filing of a bill of costs seeking interest. It stated that non-compliance with this procedure by an applicant subjects it to the court’s discretionary authority, as stipulated under Section 26 of the Civil Procedure Act. The relevant extract from the decision states:“As such, the rule deals with interest chargeable by an advocate in respect of its claim for disbursements and costs following submission of a feenote. It is patently clear from the rule that interest begins to accrue from the expiry of one month from the date of delivery of the bill or feenote. The learned judge’s reasoning that the rule does not specify the date from which time begins to run was therefore a misdirection.Additionally, it is distinctive that a review of the applicant’s Bill of Costs does not disclose that the applicant included a charge for “…interest at 14% per annum on his (her) disbursements and cost…” in the Bill of Costs. As the sole basis upon which computations of amounts due to an applicant are determined by the taxing officer, the element of interest defined by rule 7 ought to have been included in the Bill of Costs, but it was not. This omission would thereby negate the application of rule 7, and instead render the bill liable to an exercise by the court of its discretion under section 26 of the Civil Procedure. Though the judge was entitled to exercise his discretion to award interest, there was no basis established for awarding the appellant interest at 14% per annum from the date of the bill of costs until payment in full. For this reason, I consider it necessary to interfere with the award of interest.” 14.In this decision, Ouko JA (as he then was) reiterated the guiding principles in assessing interests on costs as follows: -“Finally, regarding computation of interest, while I agree with Murgor, JA’s conclusion, that the award of interest is a discretionary matter, I wish only to emphasize, as Onguto, J. did in Mercy Nduta Mwangi t/a Mwangi Keng’ara & Company Advocates vs. Invesco Assurance Company Limited [2017] eKLR, that, that discretion comes with the power to reduce the period for which interest is payable. It extends to altering the rate at which interest is payable and even to withholding the entire interest payable in the interest of justice.” 15.Pointedly, although Otieno, Ragot & Company Advocates (Supra) was the subject of an appeal in Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] KESC 44 (KLR), the apex court declined to interfere with the Court of Appeal’s holding on interest in paragraph 46 of its judgment, on the basis that the issue of when interest on taxed costs accrues was neither raised nor delineated as a matter of general public importance. 16.Reverting to the record, and noting that the notice to charge interest on costs was not included at the foot of the bill of costs dated 23 February 2021, and that the advocate has not addressed the court on the issue of its fee note, this court, guided by case law, exercises its discretion and determines that the advocate is entitled to interest only at the court rates from the date of the hon. taxing officer’s ruling of 17 April 2025, which awarded it costs. Consequently, this decision permits the notice of motion dated 31 October 2025 and grants the following final orders:a.Judgment is entered in favour of the advocate in the sum of kshs. 387,720/- plus interest at the rate of 14% per annum from 17 April 2025 until payment in full.b.Costs of the notice of motion are awarded to the advocate assessed at Ksh. 15,000/.Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 9TH DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE09.06.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Mr. Wendoh Lubullelah together with Mr. Eugine Lubullela for advocate/applicant.Miss Ngeresa for client/respondent.