https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12279

 **REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **CIVIL MISC. CASE NO.E060 OF 2022** **CONSOLIDATED WITH 61, 62, 63, 64 OF 2022** **MENEZES & PARTNERS ADVOCATES.....................APPLICANT** ***-VERSUS-*** **APA INSURANCE LIMITED...................................RESPONDENT** **NCBA BANK…………………………………………….GARNISHEE** **RULING** 1. In Each of these matters, Civil Misc. Applications No 60,61, 62, 63 and 64 of 2022, was what was intended to be an ex parte Notice of Motion dated 16/9/2024 brought under sections 1A, 1B, 3A and 63 of the Civil Procedure Act, Order 23 Rule 1, 2,4 and 10 of the Civil Procedure Rules. 2. The ex parte application became contested. 3. Except for the sum of money that was sought to be paid in each file, the rest of the application was a photocopy of each other. There was a replying affidavit in each file and a supplementary affidavit followed. In each there was the claim, the counter claim of the sum. After writing the ruling, ready for delivery, the thing that remained was to confirm the figures. And with respect and apology to the parties, that is how the files ended up on the shelf to follow me after the transfer. 4. Taking the Misc. Application 60 of 2022 as the lead file. The applicant sought the following orders: 5. ***THAT*** *in the first instance, service of this application be dispensed with and heard ex-parte.* 6. ***THAT*** *this Honorable Court be pleased to issue an order of* ***Garnishee Nisi*** *over the credit deposit in account no. 6447560023 and account no. 6625750017, both held with NCB bank, or any other of the respondents Bank accounts held with NCBA bank and in any other banking institution(s) within the jurisdiction of this Honorable Court, be attached to satisfy the decree dated 4th March 2024 issued in favor of the applicant, pending the hearing and determination of this application inter-parties.* 7. ***THAT*** *the Garnishee**do appear before this Honorable Court on any appointed date and time to show cause why it should not release and pay the following from the credit deposit in account no. 6447560023 and account no. 6625750017, both held with NCBA bank.* 8. *D*ecretal *sum Kshs. 141,832.30/=.* 9. Plus*, interest at the rate of 14% accrued from 1st May 2022 to 15th September 2024, being kshs. 47,139.38/=.* 10. Less *statutory deductions of 2% withholding vat tax and 5% withholding income tax.* 11. *Costs of this application as prayed in prayer no. 5 below.* 12. ***THAT*** *this Honorable Court be pleased to issue an order of* ***Garnishee Nisi*** *absolute for the release and payment of following to the applicant:* 13. *Decretal sum of kshs.141,832.30/=* 14. *Plus, interest at the rate of 14% accrued from 1st May 2022 to 15th September 2024, being kshs.47,139.38/=.* 15. *Less statutory deductions of 2% withholding vat tax and 5% withholding income tax.* 16. *Costs of this application as prayed in prayer no. 5 below.* *From all or either of the credit deposit in account No. 6447560023 and account No. 6625750017, both held with NCBA Bank or any other of the respondent’s bank accounts held with NCBA Bank and in any other banking institution(s) within the jurisdiction of this Honourable Court.* 1. ***THAT*** *this Honorable Court be pleased to award costs of this application to the applicant and the Garnishee and the same be quantified and borne by the Respondent and be recovered and paid out from all or either of the credit deposit in the account no. 6447560023 and account no. 6625750017, both held with NCBA bank or any other of the Respondents bank accounts held with NCBA Bank and in any other banking institution(s) within the jurisdiction of this Honorable Court.* 2. The grounds for the application were set out on the face of the application, the supporting affidavit sworn on 16/9/2024 and the supplementary affidavit sworn on 10/3/2025 by Pauline W. Kamunya counsel for the applicant. 3. These grounds were that 4. ***THAT*** *the applicant filed a party and party bill of costs which was duly taxed, a Certificate of Taxation issued that was adopted as a Judgment of the court on the 4th March 2024 and Decree subsequently given on the 4th March 2024 for the sum of 141,832.30/=, plus interest at the rate of 14% from the 1st day of May 2022.* 5. ***THAT*** *despite a 10-day notice of entry of Judgment dated 3rd July 2024 along with the said decree, having been duly served upon the Respondent on the 4th day of July 2024, the said decretal sum and/or interests has not been fully satisfied to date.* 6. ***THAT*** *the said Garnishee, NCBA Bank, holds Account No. 6447560023 and Account No. 6625750017 on behalf of the Respondent/Judgment-Debtor.* 7. ***THAT*** *it is equitable and just in the circumstances to attach the credit deposits in satisfaction of the decree and interest as prayed.* 8. In the supplementary affidavit, counsel deponed in response to the replying affidavit opposing the application. 9. The application was opposed by the affidavit of *Shelmith Ngure* sworn on 25/9/2025. She was the legal officer at the JD/respondent. At paragraph 3, 4, 5, 6 8 she depones: 10. ***THAT*** *the Applicants bill of Costs dated 21st February, 2022 was taxed in the sum of kshs.141,832.30, yet the Respondent had already settled the gross sum of ksh.121,790.00 which is inclusive of VAT and disbursement on 6th June, 2022. Annexed herewith and marked* ***“SN-1”*** *is a copy of the payment voucher issued in respect of the above noted payments.* 11. ***THAT*** *being an Advocate Client Bill of costs, 5% withholding tax and 2% VAT has to be deducted as required by law.* 12. ***THAT*** *the sums due and owing to the applicant are therefore not Kshs.80,543.00 but rather kshs.20,072.30 less 5% withholding tax and 2% VAT.* 13. ***THAT*** *the respondent has sought to settle the outstanding sums with the applicant through reconciliation of accounts with no success.* 14. ***THAT*** *the application has also failed to show that the Garnishee holds an account in the name of the respondent with sufficient sums to settle the sums claimed.* 15. ***THAT*** *noting that the certificate of costs dated 31st August, 2022 did not factor in kshs.121,790.,Interest if payable, then:* 16. *The same can only be from the date of the certificate of costs, if at all* 17. *The same cannot be granted on:* 18. *VAT which is payable to the Kenya Revenue Authority (KRA)* 19. *5% of the instruction fees as this is paid to KRA as withholding tax* 20. *A substantial part of the payment had already been paid to the applicant prior to the taxation and interest cannot accrue on the certificate of costs date as the sum of kshs.121, 790.00 has to be deducted and accounted for.* 21. Annexed to the affidavit was SN – a copy of payment voucher to demonstrate the payment of the gross sum of Kshs.121,790/=. 22. In the supplementary affidavit, counsel deponed *inter alia:* 23. *That in response to the respondents averments in their replying affidavit, the applicant seeks to provide an updated and detailed breakdown of the outstanding legal fees, disbursements, and payments awarded in respect of various matters handled on behalf of the respondent, as derived from the court ruling and verified through the applicants records.* 24. *That pursuant to the ruling dated 31st August 2022, the applicant was awarded kshs. 141,832.30/=, after deducting amounts paid prior to the filing of the bill of costs and itemised therein. It should be noted that the court did not expressly award 16% VAT on professional fees however as the same is a mandatory statutory requirement the said 16% should be applied to the sum of kshs.141,832.30/=.* 25. *That a Certificate of Taxation was issued that was adopted as judgment of the court on the 4th March 2024 and a decree subsequently given on the 4th day of March 2024 for the sum of 141,832.30/=, plus interest at the rate of 14% from the 1st day of May 2022.* 26. That the respondent had settled the outstanding sum through piecemeal and belated payments – had not availed withholding tat certificates for 5% deduction for professional fees, and 2% VAT, and that in addition the balance continues to accrue interest at 14%. Taking all that into consideration, the applicant claimed that the net amount due to the applicant was Kshs.131,904, that the appellant paid Kshs.114,460/= leaving balance of Kshs.17,254. 27. At paragraph 14 counsel works out what is outstanding – including additional costs. 28. The court was urged to *be persuaded by the finding of Hon. Mr. Justice A. Mabeya in* ***Kithi & Company Advocates V Menengai Downs Limited [2015] eKLR*** *where on the issue of interest the court held:* *“13. There seems to be a misconception by legal practitioners on the award of interest on taxed costs. An Advocate is entitled to interest on the amount taxed on an Advocate/client Bill of Costs. The rate of interest awardable is 14% per Annum applicable from 30 days after the date of service of either the Block Fee Note or the Bills of Costs*. *14. In view of the foregoing, once a judgment is entered on a certificate of costs, the decretal amount is liable to attract interest of 14% per annum from 30 days after the service of the bill and not the date of taxation. For an Advocate to be able to recover this there must be evidence on record on the date when the bill was served upon the client. ”* 1. The Garnishee also filed a replying affidavit through Kenneth Mawira legal counsel for NCBA Bank PLC. He depones:- 2. ***THAT*** *I wish to inform this Honorable Court that the Judgment Debtor does indeed hold an account with the Garnishee’s Bank, account number 6447560023 and 6625750017 as indicated in the Application.* 3. ***THAT*** *the available balance in the Judgment Debtors account number 6447560023 is kshs.32,852,522 while that of account number 6625750017 is 28,118,164 as at 21st February, 2025.* ***(Annexed hereto and marked “KM-1” and “KM-2” are the copies of the account statements indicating the available balance)*** 4. ***THAT*** *as such, I wish to indicate to this Honorable Court that the account does have sufficient funds, to satisfy the decretal sum of kshs. 141,832.30 and interest rate being kshs. 47,139.98.* 5. ***THAT*** *however the Garnishee prays that the application be dismissed and it be granted Kes.30,000, being legal costs incurred in the present application.* 6. A statement of the account of the respondent is annexed dated 21/2/2025 7. Parties filed written submissions which they highlighted. 8. I have read the written submissions by applicant and respondent. 9. During the highlighting counsel for applicant submitted that the issue before this court was straight forward – *“what amounts are due and payable to the applicant and whether the garnishee has sufficient funds to pay the same…”*It is the applicant’s position that they have demonstrated what is due, that the garnishee has sufficient funds and that the application be allowed together with their costs. 10. Counsel for the respondent relied on the Replying affidavit of Shelmith Ngure and the authorities cited in the written submissions. Their position is that certain amounts were paid – and those amounts ought to be considered in the final orders. 11. The court is urged to find that the amount owing is what is indicated in the replying affidavit. 12. On interest, the respondent argues that interest can only accrue from the date of the certificate of costs not from the date of the bill of costs. They rely on Supreme Court in **Kenya Airway Authority vs Otieno Ragot Advocates** dated (2/8/2024) to the effect that interest becomes payable on the final certificate of costs. The court is urged to adopt these submissions in all matters except ***MISC. E0063/2024* which was fully settled**. 13. In rejoinder it is submitted for applicant that the Supreme Court case addressed the finality of the certificate of costs – but that in this case – the decree – the interest accrued from the 1st date when the Bill of Costs was served – 1/5/2022. That this court did make a ruling which ruling has never been challenged and the respondent cannot come to challenge that ruling through the back door. The court is urged to look at the evidence supplied by the respondent to ascertain whether it is sufficient proof that payments have been made. 14. That on statutory payments – those are matters of law and that it is upon the respondent to prove compliance. 15. The issues are: * *What amounts are due to the applicant* * *When does interest becomes due?* * *What to do about statutory payments.* * *Costs* * *Whether garnishee has monies to settle the whole amount.* 1. On 4/3/2024 court allowed the application dated 14/11/2023 which sought inter alia – that the judgment be entered in favour of the applicant for the taxed and certified costs and that interest be awarded from 1/5/2022 at 14% per annum 2. Going by the Supreme Court in **Kenya Air Port Authority v Otieno Ragot & Co. Advocates (Pet E011/2023) 2024 KESC 44 (KLR) (2/8/2024) judgment, t**he certificate of the taxing officer shall be the final amount due unless altered by court/set aside. In this case the certificate of costs of the taxing officer remains intact as it has not been set aside by the court. The amount owing, or certified as owed is not contested and the same remains as adjudged by this court vide the orders of 4/3/2025. 3. On interest – the order stated that interest would be due with effect from 1/5/2022. 4. In the supporting affidavit of the applicant sworn on 14/11/2023, the applicant sought that the interest of 14% per annum be with effect from 1/5/2022 being the date of the expiry of one month with effect from the date when the *“said Bill of costs was served upon the respondent, as provided by paragraph 1 Rule 1 of the Advocates Remuneration Order “*. There is an Affidavit of Service showing that the Bill of costs was served on 1/4/2022. 5. This court has been referred to **Otieno Ragot and Co. Advocates vs Kenindia Assurance Co. Ltd [2020] e KLR** where the court held that; *“I find that the interest was not payable from the date when the alleged “Bill” was sent/delivered to the respondent”.* The court also referred to **D. Njogu & Co. Advocates vs Kenya National Capital Corporation NRB High Court Misc. 21/2005** as cited in **Otieno Ragot & Co. Advocates vs Kenya Airport Authority Misc 95/2011** – where Odunga J. (as he then was) stated *“In my considered view, it would be wrong to calculate interest from the date when the bill was sent to the client, regardless of the fact that such a bill was then watered down through taxation. If clients had to pay interest regardless of subsequent reductions on their bill, advocates would not have the incentive to charge the correct fee notes on the first occasion. It is for that reason that I hold that the date firm when interest should be calculable should be pegged to the date when the advocate sends the correct fee note. And by the ‘correct fee note’ I mean the bill which is in accordance with the terms upon which the advocate had contracted with the client, or the bill which the client does not dispute, or the bill which is in accordance with the sums awarded by either the Taxing Officer or by the Deputy Registrar in a certificate of costs.”* 1. In the further submissions by the applicant, it is argued for the applicant that once taxation is done – that is done. The applicant relies on the Court of Appeal in **Lesinko Njoroge & Gathogo advocates vs Invesco Assurance Co. Ltd [2021] e KLR**; and Supreme court in ***Kenya Airports Authority***. 2. On interest the calculations begin on 1/5/2022 and while the methodology appears ok – the date when it accrues has become contested. 3. It is submitted that the court already made its ruling and cannot deviate from it. I respectfully disagree .The reason we are here is because there is a dispute over what is due. Hence the issue of the date when interest becomes due cannot be ignored – if indeed there is the possibility of an error, then the court as the opportunity to review the same in the interests of justice. 4. It is only fair and just that the interest is deemed to accrue on the correct bill and with effect from the correct date. Three scenarios of what the correct bill is where there is a bill in accordance with a contract: a bill not disputed by the client, a bill in accordance with what has been awarded by the taxing officer/DR in a certificate of costs. The bill of costs that is up for taxation can therefore not be considered correct bill upon which the interest would accrue because at that point it is what the advocate considers to be due – but it still remains the subject of the taxation by the taxing officer /DR. It is that certificate of costs that becomes the correct bill, which upon service on the respondent, the respondent gets one month grace period before which the interest begins to accrue. 5. In the circumstances the interest herein began to accrue **on the sum due one month after the certificate of costs** **was served upon the respondent**. Hence any interest due ought to be calculated one month after the certificate of costs was served upon the respondent. 6. In this case the certificate is dated 31/8/2022. 7. From the record I can see that there is a letter dated 13/10/2023 ref KPA/LIT/01 on a “strictly without prejudice” basis, addressed to the respondent. The reference is ***Makueni HC.MISC.E060 to E064 of 2022: Menezes and Partners advocates vs APA Insurance Co. Ltd.*** The letter states in part*“..* ***Annexed hereto are the respective certificates of costs which are hereby deemed as duly served upon yourselves”.*** 8. The same were received by APA, and their counsel on 13/10/2023. It is inevitable to find and hold that the interest became due with effect from **13/11/2023**. 9. It behooves the parties to now sit down and calculate what is due in each file taking into account what has already been paid as that should not be the work of this court considering that each file already has a certificate of costs. Parties have evidence of what was paid when it was paid and the interest accrued should not be difficult to calculate with the baseline provided by the court. 10. Going through the affidavits I found that these were the actual figure. It would be too much to expect the court to work out the VAT/the Withholding Tax. So, without working out the 2% VAT and the 5% withholding Tax. **Civil Misc. E060 OF 2022** Principal Amount – 141,832.30/= Paid Amount 121,790/= **Civil Misc. E061 OF 2022** Principal amount kshs.156,407/= Amount paid kshs.87,185/= **Civil Misc. E062 OF 2022** Principal amount ksh.80,543/= Paid amount kshs.36,945/= **Civil Misc. E064 OF 2022** Principal amount kshs. 67,660/= Remaining unpaid kshs. 67,660/= 1. On statutory payments the respondent has the obligation to provide proof of the same in each file as they calculate what is due. 2. Regarding the accounts of the respondent will the garnishee – the duty of the garnishee is to pay to accounts owing to the extent of the money available in the account. The applicant is at liberty to execute otherwise should that not be possible. 3. The costs of the applicant and those of the garnishee to be borne by the respondent. 4. In the end the following orders issue:- 5. The certificate of costs is the final bill of costs. 6. The interest on the certified costs to accrue from **13th November 2023** which is one month from the date the certificates of costs were served upon the respondent to **17th March 2025**. 7. The parties to now sit and calculate/confirm the sums owing for purposes of settlement by the garnishee together with the applicants and garnishee costs. 8. The applicant and garnishee to have costs of this application at Ksh 30,000 each. 9. The orders herein to apply mutatis mutandis in Misc. E061, E062, E064. 10. Parties are at liberty to fix a date for mention before the Deputy Registrar on any issue that may arise. **Dated, signed and delivered via CTS on 27th July 2026** **MUMBUA T. MATHEKA** **JUDGE** **In the presence of**:- Court Assistant - Chrispol