https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4597

Muri Mwaniki & Wamiti Advocates v Azal Ltd & another (Environment and Land Miscellaneous Application 102 of 2016) [2026] KEELC 4597 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4597 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Miscellaneous Application 102 of 2016 JG Kemei, J July 16, 2026 Between Muri Mwaniki & Wamiti Advocates Advocate and Azal Limited 1st Respondent African Banking Corporation Ltd 2nd Respondent Ruling 1.In this matter, the Advocate’s Bill of Costs dated 19/5/2016 was taxed on 19/10/2023, and the Certificate of Taxation dated 5/3/2024 was issued thereon. 2.The application then before me is the Advocate’s application dated 27/11/2024 seeking the following orders;a.Judgment be entered for the Applicant against the 1st Respondent for the sum of Kenya Shillings One, Eight Thousand, Four Hundred and Eleven and Sixty Cents (Kshs. 1,008,411.60/=) in costs certified herein by the Deputy Registrar on 5/3/2024.b.Interest be paid on the taxed costs 1 above at the rate of 14% per annum from 19/6/2016, being the date one (1) month after service of the bill of costs on the 1st Respondent till payment in full pursuant to Paragraph 7 of the Advocates (Remuneration) Order, 2009 as follows:i.Interest on the sum of Kshs. 200,000/= from 18/6/2016 till 1/12/2023 when payment was made of the said sum;ii.Interest on the sum of Kshs. 100,000/= from 19/6/2016 till 30/1/2024 when payment was made of the said sum;iii.Interest on the sum of Kshs. 100,000/= from 19/6/2016 till 6/5/2024 when payment was made of the said sum, and;iv.Interest on the outstanding amount of Kshs. 342,411.60/= from 19/6/2016 till payment in full.c.The costs of this application be awarded to the Applicant/Advocate as against the 1st Respondent. 3.The application is grounded in the grounds set out therein and is supported by the Advocate’s Affidavit, that of Martin G. Mwaniki, sworn on 27/11/2024. He deposes that the Advocate’s Bill of Costs was taxed at Kshs. 1,008,411.60/= on 19/10/2023, and that a Certificate of Taxation dated 5/3/2024 was issued. Counsel avers that, before the Ruling, the 1st Respondent had made an initial payment of Kshs. 266,000/=. He further states that, after taxation, the 1st Respondent agreed to make monthly instalments until the balance of Kshs. 742,411.60/= was paid in full. 4.It is averred that although the 1st Respondent agreed to liquidate this balance in monthly instalments, it subsequently breached that agreement by making only partial payments as follows; Kshs. 200,000/= on 1/12/2023, Kshs. 100,000/= on 30/1/2024 and Kshs. 100,000/= on 6/5/2024, totalling Kshs. 400,000/=. That the outstanding balance at the moment is Kshs. 342,411.60/=. The Applicant attaches copies of emails evidencing the said instalment payment arrangements. 5.The Applicant further deposes that, to the Applicant's knowledge, the 1st Respondent/Client has not filed any reference against the taxation, nor has the Certificate of Costs been set aside or varied. Consequently, the Applicant is entitled to interest on the taxed costs at 14% per annum from 19/6/2016, being one month after service of the bill of costs, as stipulated under Paragraph 7 of the Advocates (Remuneration) Order, 2009. Interest is calculated on each partial payment from that date until the respective dates of part-payment, as well as on the outstanding balance of Kshs. 342,411.60/= from 19/6/2016 until full settlement. As the retainer is undisputed and the 1st Respondent has failed to satisfy the taxed costs in full, the Applicant seeks to commence execution proceedings accordingly. The Replying Affidavit 6.The application is opposed by the 1st Respondent/Client, as set out in the Replying Affidavit of Mohamud Mohamed Mohamud, its Director, sworn on 23/6/2026. The deponent avers that whilst the 1st Respondent has no objection to the entry of judgment, it contests the claim for interest on taxed costs. The 1st Respondent contends that no such interest was awarded in the Taxing Officer’s Ruling of 19/10/2023. The deponent asserts that the proper recourse for the Applicant, if aggrieved by the absence of an interest award, is an appeal against that ruling, not the present application. The 1st Respondent accordingly prays that the claim for interest be dismissed as an afterthought. 7.The Court directed that the application be canvassed by way of written submissions. The Advocate/Applicant complied and filed submissions dated 30/6/2026. The 1st Client/Respondent did not file any response, despite being granted additional time. The Court has had occasion to read the parties' submissions and considered them in its determination. In any event, the submissions now form part of the Court record. Analysis and Determination 8.Having perused the application, the response thereof and the written submissions filed by Advocate/Applicant, I am of the view that the issues for determination are;a.Whether the Court should enter judgment in favour of the Advocate/Applicant as prayed.b.Whether the Applicant is entitled to the claimed interest at 14% per annum under the Advocates (Remuneration) Order. Whether the Court should enter judgment in favour of the Advocate/Applicant as prayed. 9.It is clear that the Advocate Bill of Costs dated 19/05/2016 was taxed on 19/10/2023 and allowed as against the 1st Respondent in the sum of Kshs. 1,008,411.60/=. A Certificate of Taxation was subsequently issued on 5/03/2024. 10.The taxation of the Advocate’s bill of costs has not been challenged by the Client in accordance with the provisions of Rule 11 of the Advocates Remuneration Order which provides that:“Where a party is aggrieved by the decision of a Taxing Officer, he is required to object in writing by requesting the Taxing Officer to give reasons for the items of taxation that he is objecting to and thereafter file reference before a Judge.’’ 11.Section 51 of the Advocates Act provides:“(1)Every application for an order for the taxation of an Advocate’s bill or for the delivery of such a bill and the delivering up of any deeds, documents and papers by an Advocate shall be made in the matter of that Advocate.(2)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.” 12.It appears from the section that whereas subsection (1) refers to applications for an order of taxation of an Advocate’s bill and therefore to the determination of the Advocate’s costs, subsection (2) is clear that the certificate of costs, once issued by the taxing officer, is final unless set aside or altered by the Court. The Court may also order that judgment be entered in terms of the amount in the certificate of costs. 13.In the case of Lubulellah & Associates Advocates v N. K. Brothers Limited [2015] eKLR the Court observed that;“The law is very clear that once a taxing Officer has taxed the costs, issued a Certificate of costs and there is no reference against his ruling or there has been a ruling and a determination made and not set aside and/or altered, no other action would be required from the Court save to enter judgment. An Applicant is not required to file suit for the recovery of costs”. 14.The Client/Respondent did not file a reference to challenge the Taxing Officer's ruling. Ideally, Judgment would have been entered against the 1st Respondent for the sum of Kshs. 1,008,411.60/= in accordance with the Certificate of costs. 15.However, in the present case, it is not in dispute that the 1st Respondent has made substantive payments towards settling the costs. On 4/6/2026, Counsel for the 1st Respondent stated that the Client had made further payments and that the outstanding balance was Kshs. 192,000/=. He further stated that the Client’s only contention is on interest. 16.In its submissions, the Advocate avers that during the pendency of this application, the 1st Respondent made further payments as follows: Kshs. 50,000/= on 6/11/2025, Kshs. 50,000/= on 9/2/2026, and Kshs. 50,000/= on 3/6/2026. He further avers that the outstanding balance to date is Kshs. 192,411.60/=. 17.Therefore, based on the documentary evidence and the confirmation by the parties herein, the unrefuted outstanding balance is Kshs. 192,411.60/=. 18.The question that follows is whether the Court should proceed to enter judgment in the sum of Kshs. 1,008,411.60/= as per the Certificate of Taxation, given that the outstanding balance is Kshs. 192,411.60/=? 19.While section 51(2) of the Advocates Remuneration Order [ARO] makes the Certificate of Taxation final as to the amount of costs covered thereby, it also grants the Court broad equitable discretion in relation to enforcement, stating that the Court may make such order in relation to the Certificate as it thinks fit. 20.Entering a decree for the full original sum of Kshs. 1,008,411.60/=, when about 81% of that debt has already been extinguished, would facilitate unjust enrichment, result in double recovery for the Applicant, and constitute a gross abuse of the Court process. See the persuasive case of Muriu Mungai & Co Advocates v Mbugua [2026] KEHC 3528 (KLR), where the Court held a similar view in an instance where the Client had paid 50% of the taxed costs before an application for entry of judgment was made. 21.Accordingly, I determine that although the Applicant is entitled to judgment under the Certificate of Taxation, the decree must reflect the actual amount owed. The principal sum due is therefore the certified amount (Kshs. 1,008,411.60/=) less the amount already paid (Kshs. 816,000/=), leaving an outstanding principal balance of Kshs. 192,411.60/=. Whether the Applicant is entitled to the claimed interest at 14% per annum under the Advocates (Remuneration) Order. 22.The statutory basis for interest on an Advocate's unpaid fees is found in Rule 7 of the Advocates (Remuneration) Order, which provides:“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.” 23.The jurisprudence surrounding Rule 7 is well settled and consistently applied by this Court. In the case of Otieno, Ragot & Company Advocates v Kenya Airports Authority (2021) e KLR, the Court of Appeal, while considering an appeal from the decision of the High Court, held that:“As such, the rule (rule 7) deals with interest chargeable by an Advocate in respect of its claim for disbursements and costs following submission of a fee note. 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 fee note. The learned judge’s reasoning that the rule does not specify the date from which time begins to run was therefore a misdirection”. 24.The Court went further to consider the claim of interest after taxation of an Advocate -client bill of costs and held that: -“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 costs…” 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”. 25.Section 26 of the Civil Procedure Act provides for the award of interest where a decree is for payment of money as follows: -“1.where and in so far as a decree is for payment of money, the Court may, in the decree, order interests at such rates as the Court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the Court thinks fit.2.where such a decree is silent with respect to the payment of further interest, on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have ordered interest at 6 per cent per annum.” 26.Clearly, this provision allows the Court to award interest on the principal sum in a decree. The provision also gives the Court the discretion to determine the date from which the interest falls due. 27.I have perused the Bill of Costs that was drawn, filed and presented by the Applicant herein. The Applicant did not include a charge for interest at 14% per annum in the Bill of Costs. Accordingly, guided by the above-cited binding authority, Rule 7 cannot apply in this case. I am then left only with the provisions of Section 26 of the Civil Procedure Act. 28.In this case, the Applicant's Bill of Costs was served on the 1st Respondent on 19/5/2016, prior to taxation. The Applicant claims interest from 19/6/2016, being the date one (1) month after service of the Bill of Costs on the 1st Respondent, until payment in full. He specifically prays for interest on each instalment paid from 19/6/2016 to the date each instalment was paid. That the outstanding balance shall accrue interest from 19/6/2016 until payment in full. 29.In his submissions at Paragraph 18, the Applicant states that after the taxation on 19/10/2023, he forwarded the Certificate of Taxation to the 1st Respondent by letter dated 21/3/2024. As the 1st Respondent has not disputed this date of receipt of the Certificate of Costs, the Court takes it as the date on which the 1st Respondent became aware of the actual costs payable to the Advocate. Therefore, exercising discretion under Section 26 of the Civil Procedure Act, I award the Applicant interest at 14% per annum from 21/4/2024 (being one month after service of the Certificate of Taxation). 30.Given that the 1st Respondent had already made payment before taxation and service of the Certificate of Taxation, interest cannot apply to the amounts initially paid. For avoidance of doubt, the sum of Kshs. 566,000.00/=, which had already been paid (Kshs. 266,000/= before filing the Bill of Costs, Kshs. 200,000/= on 1/12/2023, and Kshs. 100,000/= on 30/1/2024), shall not accrue interest. The 14% interest per annum is therefore chargeable only on a sum of Kshs. 442,411.60/= (being the taxed costs of Kshs. 1,008,411.60/= less Kshs. 566,000.00/=). 31.However, since the debt was being paid in instalments, the calculation of the 14% interest per annum must reflect the changing principal amount. The sum of Kshs. 250,000/= (Kshs. 100,000/= paid on 6/5/2024, Kshs. 50,000/= on 6/11/2025, Kshs. 50,000/= on 9/2/2026 and Kshs. 50,000/= on 3/6/2026) shall accrue interest at 14% per annum from 21/4/2024 to 3/6/2026. The outstanding balance of Kshs. 192,411.60/= shall accrue interest at 14% per annum from 21/4/2024 until payment in full. 32.Accordingly, the Notice of Motion application dated 27/11/2024 is hereby determined in the following terms:a.The Certificate of Taxation dated 5/3/2024 is hereby adopted as a Judgment of this Court.b.Judgment is entered for the Applicant against the 1st Respondent in the sum of Kshs. 192,411.60/= (being the outstanding balance from the certified sum of Kshs. 1,008,411.60/=).c.The Applicant is awarded interest on the sum of Kshs. 250,000/= at the rate of 14 % per annum from 21/4/2024 to 3/6/2026.d.The Applicant is awarded interest on the outstanding principal sum of Kshs. 192, 411.60/= at 14% per annum, from 21/4/2024 until payment in full.e.Considering the partial settlement executed before filing of the bill and the pendency of this application, each party shall bear their own costs for this Application. 33.It is so ordered. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 16TH DAY OF JULY 2026 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered in the virtual presence of;1. Ms. Muhindi H/B for Mr. Lundi for the Applicant2. Mr. Chege for the 1st Respondent3. N/A for the 2nd Respondent4. C/A -Ms Kendi