https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9669

Muri Mwaniki & Wamiti Advocates v Sanlam General Insurance Ltd (Civil Application 272 of 2019) [2026] KEHC 9669 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9669 (KLR) Republic of Kenya In the High Court at Machakos Civil Application 272 of 2019 EN Maina, J June 25, 2026 Between Muri Mwaniki & Wamiti Advocates Applicant and Sanlam General Insurance Ltd Respondent Judgment 1.Before this court is the Advocate/Applicant’s Notice of Motion dated 25th August 2025 which seeks orders as follows:a.Judgment be entered for the Applicant/Advocate against the Respondent/Client for the sum of Kenya shillings Three Hundred and Fifty Thousand, One Hundred and Nineteen shillings (Kshs. 350,119/=) in costs certified herein by the Deputy Registrar on 17th July 2025.b.The said sums of Kshs. 350,119/= in costs be paid with interest at the rate of 14% per annum from 30th June 2019, being the date one (1) month after the service of the Bill of Costs on the Respondent/Client until payment in full pursuant to Paragraph 7 of the Advocates Remuneration Order 2009.c.The costs of this application be awarded to the Applicant/ Advocate. 2.The Advocate/Applicant contends that they filed this application for judgment on taxed costs with interest on 26th August 2025 and served the Respondent/Client on 1st September 2025; that the Client/Respondent settled the taxed costs on 9th September 2025; that they are entitled to interest on the taxed costs at 14% pa from 30th June 2019 being, one month after service of the Bill of Costs upon the Client/Respondent, as provided in paragraph 7 of the Advocate Remuneration Order 2009. 3.The Advocate/Applicant placed reliance on the case of Okong’o Wandago & Company Advocates -vs- Invesco Assurance Company Limited [2018] KEHC 3073 (KLR) where it was held that:“The rate of interest awardable is 14% per annum applicable from 30 days after the date of service of either the Bill of Costs. There is evidence that the bill of costs was received by the Respondent on 6th July 2018 and thirty (30) days from the delivery of the bill to the client expired on 6th August, 2018”. 4.Counsel also placed reliance on the case of Nyakundi Tuiyot & Co. Advocates -vs- African Merchant Assurance Co. Limited [2018] KEHC 448 (KLR) and the case of Charles Gomba t/a Charles Gomba & Co. Advocates -vs- Festus Mwanja [2021] KE ELRC 1428 (KLR) where similar findings regarding interest on taxed costs were arrived at. Learned counsel for the Advocate/Applicant therefore urged this court to allow the application as prayed with costs to the Advocate/Applicant. 5.The application is vehemently opposed by the Client/Respondent through a replying affidavit sworn on 26th November 2025. The Advocate/Client’s objection is premised on the ground that the taxed costs were fully settled on 9th September 2025 before this application was filed. Further, that upon service of the application, the Advocate/Applicant was informed about the delay in processing the payment hence the application was made in bad faith. Learned counsel for the Client/Respondent also submitted that the application is not merited as Rule 7 provides that the claim for interest ought to be raised before the taxed costs are paid in full; that in this case the costs were settled before this application came up for directions hence the application was overtaken by events. Further, that the Advocate/Applicant is not entitled to interest since they did not raise the issue of interest before filing the Bill of Costs. To buttress this argument counsel cited the case of B McRonald & Associates Advocates -vs- FCC Nairobi FCC Nairobi FHCMISC. App No. E027 of 2020 [2021] eKLR where the court, citing the case of Machira & Co. advocates -vs- Arthur K. Magugu & another [2019] eKLR, held as follows:“(24)The learned judge found correctly in our view that the appellant did not furnish the court with any evidence that they had claimed interest at fourteen (14%) per annum at least one (1) month before filing the Bill of Costs ....(25)Accordingly, we find that the learned judge did not err in finding that the appellant did not furnish the court with any evidence that they had claimed interest at fourteen (14%) percent at least one (1) month before they filed their Bill of Costs. They were not entitled to interest at 14%.” 6.Counsel for the Client/Respondent urged this court to be guided by the above decision and dismiss the application with costs to the Client/Respondent. Analysis and determination 7.Rule 7 of the Advocates Remuneration Order of 2009 states:“An advocate may charge interest at 14 percent 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.” 8.The decisions cited by learned counsel, which are both persuasive, are at crossroads. On one hand in the case of Okong’o Wandago & Company Advocates -vs- Invesco Assurance Company (Supra) it was held that the interest is payable provided the application for the same is made thirty days after filing the bill of costs and before the taxed costs are fully settled. Which is also the position in Charles Gomba t/a Charles Gomba & Co. Advocates -vs- Festus Mwanja (Supra). On the other hand, the position of the court in B McRonald & Associates Advocates -vs- FCC Nairobi (Supra) is that provided the prayer for interest is not included in the Bill of Costs, then the interest is not payable. 9.The issue of when such interest is payable was settled by the Court of Appeal in the case of Otieno Ragot & Company advocates -vs- Kenya airports Authority [2021] KECA 587 (KLR) where the court held inter alia, that the bill referred to in Rule 7 is not the Bill of Costs but rather the fee note or bill. The court referred to it as “a fee note on disbursement and costs”. That court also expounded that it is only after the issuance of such a fee note and subsequently filing a bill of costs where interest is made an item, that the advocate becomes entitled to such interest otherwise the advocate leaves themselves to the court’s discretionary power under the Civil Procedure Act (Section 26). The court stated:“As such, the rule deals with interest chargeable by an advocate in respect of its claim for 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 begins to was therefore a misdirection.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) disbursement 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 referred 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 Act. Though the judge was entitled to exercise his discretion to award interest there was no basis established for awarding the appellant interest at 14% per annum from the date of the bill of costs until payment in full. For this reason, I considered it necessary to interfere with the award of interest.” 10.In the same case Ouko JA, as he then was, expressed the view that in such circumstances the court can even vary the rate of interest, the period it is payable and it can even refuse to award interest at all. The judge stated:“Finally, regarding computation of interest, while I agree with Murgor, JA’s conclusion, that the award of interest is a discretionary matter, I wish only to emphasize, as Onguto, J. did in Mercy Nduta Mwangi t/a Mwangi Keng’ara & Company Advocates vs. Invesco Assurance Company Limited [2017] eKLR, that, that discretion comes with the power to reduce the period for which interest is payable. It extends to altering the rate at which interest is payable and even to withholding the entire interest payable in the interest of justice. Considering the amount involved in this claim, it is my belief that the award of interest would escalate this amount to disproportionate levels. For that reason, I would not award any interest….” 11.In this case therefore and being guided by the decision of the Court of Appeal in the case of Otieno Ragot & Company Advocates -vs- Kenya Airports Authority (Supra), this court finds that it cannot award the interest based on the date the bill of costs was served upon the respondent because what the word bill in the rule is to be interpreted to mean the fee note. Secondly, the interest was not sought in the Bill of Costs – it was not an item in the Bill and hence was not awarded by the taxing officer. In other words the date of filing of this application cannot be taken to be the date of demand for the payment of interest. The demand ought to have been expressed either in the fee note or in the Bill of Costs. In the premises the question of whether the interest is chargeable or not is left to the discretion of this court as provided in Section 26 of the Civil Procedure Act. 12.It is also my finding that allowing interest at court rates from the date of filing the bill of costs would escalate the amount to disproportionate levels more so bearing in mind that the costs have been fully settled. In the premises this bill of costs having been taxed on 28th November, 2024, and the taxed costs having been settled fully on 9th September 2025, I would exercise my discretion and award the interest at 14% for only one year being the period between the ruling/certificate of costs and the date the costs were fully settled. 13.Each side shall bear their own cost of the application, given the circumstances.It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS ON THIS 25TH DAY OF JUNE, 2026.E. N. MAINAJUDGEIn the presence of:Mr. Waweru for AppellantMs. Mjambili for Respondent.Court Assistant – Catherine