[2017] KEELRC 2010 (KLR)
The court held that the Certificate of Costs issued on 30th March, 2016 had not been set aside or altered, and there was no order of stay. Under section 51(2) of the Advocates Act, the certificate is final as to the amount of costs due. The respondent's assertion of a partial payment was not supported by affidavit...
Source-derived case information.
- Citation
- [2017] KEELRC 2010 (KLR)
- Parties
- Applicant: Mohamed & Samnakay; Respondent: Chopstix Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 55 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Certified Costs
- Outcome
- application allowed; judgment entered for applicant
- Legal Topics
- Taxation of Costs, Certificate of Taxation, Advocate Client Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed & Samnakay
Applicant
Chopstix Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment on Certified Costs
Legal Issues
- 1 Whether judgment should be entered for the sum certified in the Certificate of Costs where the certificate has not been set aside or altered.
- 2 Whether the respondent's partial payment of Kshs.50,000.00 affects the amount due under the Certificate of Costs.
- 3 Whether the respondent's opposition by way of grounds of opposition, rather than affidavit evidence, is sufficient to challenge the application.
Ratio Decidendi
The court held that the Certificate of Costs issued on 30th March, 2016 had not been set aside or altered, and there was no order of stay. Under section 51(2) of the Advocates Act, the certificate is final as to the amount of costs due. The respondent's assertion of a partial payment was not supported by affidavit evidence, and the grounds of opposition did not provide a sufficient factual basis to challenge the application. The court found no material sufficient to challenge the applicant's claim and allowed the application, entering judgment for the certified sum with interest from 7th August, 2015.
Court Disposition
application allowed; judgment entered for applicant
Orders
- Judgment is entered for the sum of Kshs.299,857.00 in favour of the applicant.
- The sum is to be paid with interest from 7th August, 2015.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT
NAIROBI
MISC. NO.55 OF 2015
MOHAMED & SAMNAKAY ……………………………….. APPLICANT/ADVOCATE
AND
CHOPSTIX LIMITED ……………………………..………… RESPONDENT/CLIENT
AND
IN ELRC NO.311 OF 2012
ELIJAH KITONGA KAASYA VERSUS CHOPSTIX CHINESE RESTAURANT
RULING
The applicant by notice of Motion dated 25th April, 2016 is seeking for orders that judgement be entered for the sum of Kshs.299,857. 00 for costs certified on 30th March, 2016 and such judgement be entered with interest at 14% per annum from 7th August, 2015 one months after service of the Bill of Costs on the respondent. The application is supported by the affidavit of SJ Saenyo, advocate for the applicant.
The client and respondent filed Grounds of Opposition to the application on the grounds that the claimed amounts of Kshs.299,587. 00 are not reflective of actual amounts which ought to be paid as on 3rd February, 2016 the client paid Kshs.50,000. 00 towards partial settlement of the charges due and ought to be put into account.
Both parties made oral submissions.
In an application for the taxation of the bill of costs which is approved and is not challenged, set aside of altered, section 51 of the Advocates Act requires that the court to issue an Applicant with judgement for the sum certified stated as due in the Certificate of Costs. See Daly & Figgis Advocates versus Homelex Limited (2013) eKLRwhere in reference to section 51(2) of the Advocates Act the court held that;
… Section 51 (2) of the Advocates Act … the words of the said section were very clear that where a Certificate of Taxation had neither been set aside nor altered by the Court, and where there was no order of stay, the Certificate was final as to the amount of costs covered thereby and to allege a dispute at summary Judgement stage would amount to a contradiction of express and mandatory statutory provisions
The Deputy Registrar herein certified costs due on 30th March, 2016 upon judgement delivered on 7th August, 2015. The respondent client asserts that on 3rd February, 2016 there was a payment of Kshs.50,000. 00 tot eh advocate as part of the charges.
Where the Bill of Costs was taxed on 30th March, 2016 this was a date after the alleged payment of Kshs.50,000. 00. in any event the respondent opted to filed Grounds of Opposition and not an affidavit setting out how and the purpose of the alleged payment of Kshs.50,000. 00. such are matters which ought to have been addressed in a Replying Affidavit as to filed Grounds of Opposition is to deny the applicant the chance to interrogate the nature of matters addressed in the grounds of Opposition and which essentially are facts which should and ought to go into an affidavit as matters of fact.
I find no material sufficient challenging the application by the applicant. The application dated 25thApril, 2016 is hereby allowed with costs. Judgement is hereby entered for the sum of Kshs.299,857. 00 to be paid with interest from 7thAugust, 2015 and costs herein.
Delivered in open court at Nairobi this 26thday of September, 2017.
M. MBARU JUDGE
In the presence of:
David Muturi and Nancy Bor – Court Assistants
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