[2020] KEHC 10129 (KLR)

REPUBLIC OF KENYA

IN THE HIGH OF KENYA AT MACHAKOS

Coram: D. K. Kemei - J

MISCELLANEOUS CIVIL APPL. NO. 79 OF 2015

IN THE MATTER OF THE ADVOCATES ACT CHAPTER 16 LAWS OF KENYA

AND

IN THE MATTER OF AN ADVOCATE-CLIENT BILL OF COSTS

MUEMA KITULU

T/A MUEMA KITULU & CO ADVOCATES..................................................APPLICANT

VERSUS

COUNTY GOVERNMENT OF KITUI........................................................RESPONDENT

RULING

1. By a notice of motion dated 4. 6.2019, brought under section 51 (2) and Rule 7 of the Advocates Remuneration Order both of the Advocates Act Cap 16 Laws of Kenya, section 3 & 3A of the Civil Procedure Act CAP 21, Order L Rules 1 of the Civil Procedure Rules, the applicant, sought for orders: -

a) THAT this honourable court be pleased to enter Judgment against the respondent for the sum of Kenya Shillings two hundred sixty-six thousand three hundred and seventy-two Kshs 266,372/- being the taxed and certified costs.

b) THAT the Honourable court be pleased to award interest at 14% from 23rd April 2015 until payment in full;

c) THAT the costs of this application be borne by the respondent

2. The motion is premised on the grounds set out in the application and supported by the affidavit of Muema Kitulu Advocate of the High Court of Kenya deponed on 4. 7.2019 to which is annexed the certificate of taxation dated 3. 7.2019 marked MK – 1. He averred further that there is no dispute of having been retained by the respondent and who should now pay up his legal fees as taxed.

3. The application is opposed vide a replying affidavit deponed on 17. 7.2019 by Japheth K. Mwalimu where he opposed the award of interest from 23. 4.2015 since the award had been made on 5. 3.2019. It was proposed that interest be awarded as from 5. 3.2019 being the date of taxation to payment in full.

4. On record is a supplementary affidavit deponed on 8. 10. 2019 by Muema Kitulu who averred that the delay in concluding the taxation process was not authored by him. It was pointed out that the applicant filed a reference to the taxed award that was dated 21. 1.2016 and which was dismissed; that a fresh taxation was conducted by consent on 5. 3.2019. He emphasized that he was entitled to interest on costs at the rate of 14% from 30 days after the filing of the bill of costs on 23. 4.2015.

5. The application was addressed vide written submissions. Learned counsel for the applicant in his submissions dated 8. 10. 2019 framed two issues for determination being firstly whether the taxation award is valid and secondly whether the advocate/applicant is entitled to 14% interest on the taxed costs from 23rd April 2015 until payment in full.

6. It was submitted that Rule 7 of the Advocates Remuneration Order provides that interest runs one month after the delivery of the Bill of Costs upon the client. Counsel pointed out to court that the bill of costs and notice of taxation were served on the respondent on the 22nd May, 2015; that 30 days lapsed on 19. 6.2015 meaning that this court should allow interest on taxed costs at 14% from the 20. 6.2015 until payment in full.

7. Reliance was placed on the cases of Kithi & Co Advocates v Menengai Downs Ltd (2015) eKLRand Muema Kitulu & Co Advocates v County Government of Kitui (2019) eKLRwhere the court relied on the provisions of Rule 7 of the Advocates Remuneration Order. The court was urged to allow the application as prayed.

8. The respondent’s submissions are not on record.

9. The issues to be addressed in the application dated 4. 7.2019 are whether the judgment, based on the certificate of taxation of costs by the Taxing Officer, should be entered and when interest should run.

10. The application was brought under section 51(2) of the Advocates Act. The unchanged position of the law is that an advocate armed with taxed or assessed costs and the relevant certificate of taxation should make a formal demand of the assessed amount from the client and whatever amount the client fails to pay, the advocate should proceed pursuant to section 49 and section 51 (2) of the Advocates Act. Section 51 sub-rule (2) provides that due notice of the date fixed for such taxation must be given to both parties and that both parties shall be entitled to attend and be heard. It states that

“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."

11. I have considered the affidavit in support of the application and the submission of counsel as well as the court record. In the case of Musyoka & Wambua Advocates v Rustam Hira Advocate (2006) eKLR it was held:-

“Section 51 of the 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……

12. In the present case, taxation of the bill of costs dated 23. 3.2015 was effected on 3. 11. 2015. The record indicated that the file went missing and there is a consent on record dated 11. 12. 2019 that was recorded in the registry where it was agreed that the bill of costs dated 23. 3.2015 be fixed for taxation. The record shows that on 5. 3.2019, it was consented that the applicant’s bill of costs dated 23. 3.2015 be taxed as previously taxed at the amount of Kshs 266,372/-. A Certificate of Taxation was issued and as it stands now, the same has not been set aside or altered. I find that in terms of section 51 (2) of the Act there is no reason to deny the applicant, judgment as sought.

13. On the issue of interest, I have considered the provisions of Rule 7 of the Advocates Remuneration Order which provides:-

“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”

14. I agree with the reasoning in the case of Waiganjo Wachira & Company Advocates v Pacis Insurance Company Limited [2019] eKLR that sought to distinguish the case of Kithi & Co Advocates v Menengai Downs Ltd (2015) eKLR.

15. In the mentioned case, it was observed that

“And the explanation given in Kithi and Company Advocates

Once judgement 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 of the date when the bill was served upon the client.

The applicant has not demonstrated that the bill was served on the respondent on the 16th of September 2018 and the issue of interest was raised during the taxation. The interest with regard to the certificate of costs will begin to run on after the entry of this judgment. From the foregoing it is evident that upon entry of this judgment, the decretal sum will attract 14% interest.”

16. I also add that there is no indication of a claim of interest charged that was made to the respondent in terms of Rule 7 of the Advocates Remuneration Order and therefore I see no reason to award the applicant interest of 14% from the date of filing the bill of costs. It was incumbent upon the applicant to present evidence to the effect that the erstwhile client had been served with the bill of costs so as to bolster his claim for interest at 14% per annum. In the absence of such evidence then the applicant will have to contend with the above interest from the date of taxation as suggested by the respondent’s counsel.

17. In view of the foregoing observations the application dated 4. 6.2019 has merit and is allowed in the following terms;

a) Judgement is entered for the Applicant against the Respondent for Kshs 266,372/- being the certified costs due to the applicant as against the respondent.

b) The above sums will attract interest of 14% from the date of taxation (5. 3.2019) until payment in full.

c) The costs of the application are awarded to the Applicant.

It is so ordered.

Dated and delivered at Machakos this 6thday of October, 2020.

D.K. Kemei

Judge