Mohamed & Samnakay Advocate v Orbit Sports Limited (Miscellaneous Cause E553 of 2022) [2026] KEHC 9570 (KLR) (22 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MISC. CAUSE NO. E553 OF 2022** **IN THE MATTER OF THE ADVOCATES ACT** **AND** **IN THE MATTER OF THE TAXATION OF CONSTS BETWEEN ADVOCATE AND CLIENT** **BETWEEN** MOHAMED & SAMNAKAY………………….…APPLICANT/ADVOCATE VERSUS ORBIT SPORTS LIMITED…………………………RESPONDENT/CLIENT **RULING** **The Application** 1. This Notice of Motion (the application) was filed by Mohamed & Samnakay Advocates (the Applicant) against Orbit Sports Limited (the Respondent). The Application is anchored on Section 51 (2) of the Advocates Act, Rule 7 of the Advocates Remuneration Order and Order 51 Rule 1 of the Civil Procedure Rules. In it, the Applicant seeks judgment in the sum of Kshs 956,288.88 being the taxed costs as per the Certificate of Taxation dated 4th November 2025 and interest at 14% per annum from 3rd November 2022 until payment in full, as well as costs of the application at Kshs 30,000. 2. The Applicant has stated, in the grounds supporting the application, that the Bill of Costs dated 25th August 2022 in respect of this matter was taxed on 22nd August 2025 and a Certificate of Taxation dated 4th November 2025 issued; that under Rule 7 of the Advocates Remuneration order, the Applicant is entitled to interest on the taxed costs at 14% per annum from 3rd November 2022, which was one month after the service of the Bill of costs on the Respondent and that by a letter dated 22nd August 2025 the Respondent was asked to pay the interest on the taxed costs at the rate of 14% per annum, which the Respondent failed to do so. 3. The Application is supported by a further affidavit sworn by **Zul Mohamed** on 26th January 2026 in which it is deposed that on 17th December 2025, the Client forwarded a cheque for a sum of Kshs. 956,288.88 as settlement of the principal costs taxed, but has failed to settle the interest thereon and that what is pending is payment of is payment of interest on the taxed costs plus costs of the Application, as sought under prayers 2 and 3 of the Application. **The Response** 1. The Application is opposed by the Respondent through Grounds of Opposition dated 30th April 2025 (should read 30th April 2026). The Respondent has raised seven (7) grounds in which it is arguing in sum, that the instant Application is attempting to leap frog the Reference which seeks to challenge the taxed costs; that the Application, having not been filed under a Certificate of Urgency, ought to be heard subsequent to the Reference; that the Application seeks entry of judgment by way of a miscellaneous application rather than a substantive suit; that the application seeks to negate the discretionary power of the court and that the same is misleading as it seems to portray that the issue of the taxed costs is not disputed and therefore the application has been brought with unclean hands. 2. The Applicant filed a Notice of Objection dated 5th May 2026 to challenge the Grounds of Opposition filed by the Respondent in which it is argued that the Grounds of Opposition ought to be struck out for having been belatedly served upon the Advocate via email thereby denying the Advocate ample time to consider the contents thereof, which amounts to an ambush. **Oral submissions** 1. Pursuant to the directions given by this court on 26th February 2026, the Application was argued orally on 4th May 2026. To support the Application, Mr. Zul Mohamed, counsel for the Advocate, argued that the principal costs have been settled by the Client and all that is pending is the issue of interest thereon at 14% per annum and costs of the Application, to be assessed at Kshs. 30,000/-. 2. ***Mr. Mbaluto,*** counsel for the Client, argued that while there is no outstanding issue on costs, the pending Reference has not been withdrawn; that the issue is with the sequence of handling the two (2) applications; that the Reference ought to have been heard and determined first before the instant application. 3. Counsel argued, further, that the prayers sought in the instant application cannot be granted through a miscellaneous application since it is trite law that a judgment ought to be based on a substantive suit; that the prayers sought therein lie with the discretion of the court; that, an award of interest is intended to punish a party who has deliberately failed to settle the requisite costs, yet in the present instance, the principal costs were timeously settled. 4. It is was submitted that no sufficient reasons have been given to justify the prayers sought and therefore the application ought to be disallowed. 5. In rejoinder, **Mr. Mohamed** submitted that the directions to have the instant application heard first were issued with the consensus of the parties; that in any event, the said application stands unopposed since his firm was never properly served with any responses and that, the principal costs having been paid, the only issue pending determination is the interest and costs of the application. 6. Counsel has submitted, further, that the Reference seems to have been abandoned by the Client, upon payment of the principal taxed costs and that the instant application is merited and ought to be allowed as prayed. **Analysis and determination** 1. I have considered the application and the grounds in support. I have considered the Grounds of Opposition and the Notice of Objection thereto, as well as the rival oral arguments presented before the court. 2. I have noted that the Respondent has raised the issue to the effect that this application is not properly before the court for reasons that it was filed under a miscellaneous application instead of a substantive suit and therefore the prayers sought therein cannot be granted. The Applicant did not address this issue. 3. The record shows that this matter arises from taxation proceedings which are special in nature. The Bill of Costs in this matter was taxed and a Certificate of Taxation issued. It is thus clear that entry of judgment is sought pursuant to the Certificate of Taxation, which procedure is provided for under **Section 51(2)** of the Advocates Act. It is trite law that where a Certificate of Taxation has been issued and the same has not been varied or set aside, the court is permitted to enter judgment on the taxed costs. In the circumstances, I find that the argument raised by the Client that a substantive suit ought to have been filed for purposes of seeking entry of judgment on the taxed costs, cannot be sustained. 4. I have noted that the Applicant has also raised an issue seeking to have the Grounds of Opposition filed by the Respondent struck out or expunged from the record for the reasons that the said Grounds of Opposition were belatedly served upon the Applicant and should therefore not be considered, leaving the Application unopposed. 5. From my perusal of the record, it is evident that upon the Applicant filing the instant application, parties attended this court, through their respective advocates, on 26th February 2026. They were directed by this court to file any responses to the application within 14 days therefrom and the matter was fixed for oral submissions on 4th May 2026. The Respondent filed the Grounds of Opposition sometime on or about 30th April 2026 (wrongly dated as 30th April 2025). This was outside the stipulated 14-day timelines allowed by the court 26th February 2026. There is no evidence to show that this court extended the timelines within which to file the response nor is there any explanation for the late filing or leave sought to have the grounds of opposition admitted after the lapse of the time allocated. The record shows that the Applicant is right in complaining that the Grounds of Opposition were served late upon the Applicant, thereby denying the Applicant sufficient time to respond appropriately. 6. In the circumstances, I am persuaded to decline to consider the Grounds of for having been filed outside the time allocated. 7. In respect to the merits of the application, it has been admitted that the Respondent paid Kshs 956,288.88 being the taxed costs as shown in the Certificate of Taxation dated 4th November 2025. It is my considered view that, by paying the taxed costs, the Respondent, automatically, abandoned the Reference, since the same was essentially challenging the taxed costs. Consequently, ***prayer (i)*** of the Application been overtaken by events. This leaves ***prayers (ii)*** and ***(iii)*** for determination. 8. ***Prayer (ii)*** of the application seeks interest on the taxed costs of Kshs. 956,288.88 at the rate of 14% per annum from 3rd November 2022, being one month after the date of service of the Bill of Costs on the Respondent, until payment in full. 9. The applicable provision on the subject of interest on the taxed amounts is **Rule 7** of the **Advocates (Remuneration) Order** which 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.”*** 1. From my perusal of the record, I have observed that interest was neither sought in the Advocate’s Bill of Costs nor litigated upon in the course of the taxation proceedings. Similarly, the taxing officer did not make any award of interest in rendering the taxation ruling. 2. The question of **Rule 7** of the Advocates (Remuneration) Order on the subject of interest was aptly discussed by the Court of Appeal in the case of **Otieno, Ragot & Company Advocates v Kenindia Assurance Co. Ltd [2023] KECA 1398 (KLR)** where that Court stated the following, on the consequence that would befall a party who omits to claim or seek interest at the appropriate stage: ***“As should be obvious from the unbundling of rule 7 of the Advocates Remuneration Order and section 51(2) of the Advocates Act above, it was not open to the appellant to claim the potentially permissible interest rate of 14% for the first time during adoption proceedings under section 51(2). This is because it was incumbent upon the advocate to put the client on notice that he intended to claim the interest at the point at which he drew the Bill of Costs. He did not. If an advocate is interested in claiming the potentially allowable interest at 14% p.a., he must make the claim in the Bill of Costs.*** ***Once the advocate includes the claim of interest, it must be litigated before the Taxing Master in the taxation proceedings. If it is awarded by the Taxing Master, it would be well and good for the advocate. However, if it is not awarded in the taxation proceedings and included in the Certificate of Costs, the advocate must challenge the omission in a reference to the court under rule 11 of the Advocates Remuneration Order. It is not open to the advocate to spring the claim of interest for the first time at the enforcement proceedings under section 51 of the Advocates Act.*** ***To reiterate, the policy rationale for this interpretation is that the advocate should put the client on notice about the totality of the claim he has against the client at the earliest instance. There is a policy preference against an advocate making piecemeal claims against the client. Requiring an advocate to raise the claim for interest at the earliest instance gives the client an opportunity to object to any delays by the advocate in raising the Bill of Costs. This, in turn, acts as a disincentive for advocates to needlessly delay raising a Bill of Costs with the sole objective of increasing the amounts due through the allowable interests under rule 7 of the Advocates Remuneration Order. Conversely, it incentivizes clients to promptly pay the amounts due to the advocate as claimed in the Bill of Rights or raise an objection promptly.*** ***In the present case, the appellant neither claimed the interest at 14% p.a. in his Bill of Costs nor filed a reference under rule 11 of the Advocates Remuneration Order. Consequently, it was improper for the appellant to raise the claim for the first time in the section 51(2) proceedings. It follows that the learned judge did not misapprehend the law or abuse his discretion in disallowing the claim.”*** 1. Guided by the above authority, it is my considered view that the omission by the Applicant in claiming interest on the taxed sums at the appropriate stage of the present matter would disentitle it from an award of interest at this late stage in the proceedings. Consequently, I hereby decline to make any award on interest. 2. Lastly and on prayer (iii) seeking costs thereof at a sum of Kshs. 30,000/-, it is trite law that costs follow the event and in this instance. I find the costs sought to be reasonable in the circumstances. In the absence of any contrary evidence, I am persuaded to award the Applicant costs of the instant application in the manner prayed. 3. In the end therefore, the Notice of Motion dated 7th November 2025 partially succeeds in that the Applicant shall have costs of the Application, assessed at a sum of Kshs. 30,000/-. 4. It is hereby ordered. **Dated, signed and delivered this 22nd June 2026.** **S. N. MUTUKU** **JUDGE**