https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12938

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **HCCOMM MISC APP NO. E152 OF 2024** PAUL MAINGI MUSYIMI T/A MAINGI MUSYIMI ASSOCIATES ADVOCATES…………...……………....ADVOCATE -VERSUS- JACK & JILL SUPERMARKET LIMITED………………………….…...CLIENT **RULING** 1. The Advocate filed a Notice of Motion application on 31st October 2024 erroneously dated 31st October 2021 pursuant to the provisions of Sections 51(1) & (2) of the Advocates Act, Sections 1A, 1B, 3 & 3A of the Civil Procedure Act, Paragraph 7 of the Advocates Remuneration Order, 2014, Order 50 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. The Advocate prays for an order that judgment be entered in its favour against the client in the sum of Kshs.4,172,598.84 plus interest at the rate of 14% from the date of filing of the bill of costs. 2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on 31st October 2024 by Mr. Paul Maingi Musyimi, an Advocate of the High Court of Kenya. Mr. Musyimi averred that he was retained to represent the client in Milimani Civil Suit No. 119 of 2019. He stated that despite rendering legal services, the client failed to settle the Advocate’s fees, prompting the filing of an Advocate-client bill of costs dated 22nd February 2024. He further stated that the said bill of costs was subsequently taxed on 14th October 2024 at Kshs.4,172,598.84. He asserted that the clients were duly served with the said bill of costs, entered appearance, and participated in the taxation proceedings, but despite their knowledge of the Certificate of Taxation, they have failed and/or neglected to settle the taxed costs. He stated that it is necessary for judgment to be entered to enable the Advocate law firm to execute for recovery of the taxed costs. 3. In opposition to the application herein, the client filed a replying affidavit sworn on 29th October 2025 by Mr. Schon Noorani. Mr. Noorani averred that the instant application offends the provisions of Paragraph 11 of the Advocates Act. He stated that at the time the application herein was filed, there was a pending Reference challenging the Taxing Officer’s decision delivered on 14th October 2024, which Reference had been filed on 31st October 2024 immediately after the Taxation Ruling. He contended that since the instant application was filed on the same date as the clients’ Reference, it was premature and procedurally defective. He averred that when the Reference came before the Court, it was dismissed on grounds that it had not been properly filed through the Court’s CTS system, and being dissatisfied with that decision, the client has since moved to the Court of Appeal for redress. 4. Mr. Noorani deposed that the Advocate’s conduct demonstrates an intention to circumvent the client’s appeal rights and that the taxation proceedings violated his rights to be heard since the bill of costs was taxed without consideration of rival submissions. He also stated that the Reference was never substantively heard because it was struck out on technical grounds relating to filing procedure, notwithstanding that the documents had been filed through email due to challenges with the CTS system and time limitations under Paragraph 11 of the Advocates Act. Mr. Noorani asserted that the Chief Justice had permitted filing of urgent matters by email where CTS difficulties existed. He therefore maintained that the client’s constitutional rights to a fair hearing under Article 50 of the Constitution are threatened and urged this Court to stay these proceedings pending the determination of the client's appeal before the Court of Appeal. 5. The instant application was canvassed by way of written submissions. The Advocate’s submissions were filed on 28th November 2025 by the law firm of Maingi Musyimi & Associates Advocates, whereas the client’s submissions were filed by the law firm of Abuodha & Omino Advocates on 17th December 2025. 6. Mr. Maingi, learned Counsel for the Advocate submitted that the client seeks to mislead the Court by claiming that the instant application was filed during the pendency of a valid Reference. He stated that the Taxing Officer delivered the Taxation Ruling on 14th October 2024, while the client only filed its Reference on 30th October 2024, outside the mandatory fourteen-day period prescribed under paragraph 11 of the Advocates Remuneration Order. Counsel contended that by the time the application herein was filed, the statutory period for challenging the taxation had lapsed without any competent Reference having been filed, rendering the purported Reference a nullity incapable of recognition by the Court. He further stated that this Court in its Ruling dated 3rd October 2025, dismissed the client’s Reference for failure to comply with the provisions of Paragraph 11 of the Advocates Remuneration Order, thereby affirming the defective nature of the said Reference. 7. Mr. Maingi relied on the provisions of Section 51(2) of the Advocates Act, which provides that a Certificate of Taxation shall be final as to the amount due unless set aside or altered by the Court, and empowers the Court to enter judgment where the retainer is not disputed. He further relied on the case of **Lubulellah & Associates Advocates v N K Brothers Limited** [2014] KEHC 8685 (KLR), and asserted that in this suit, the Certificate of Taxation remains valid and unchallenged, and the issue of retainer was already determined by the Taxing Officer in the Ruling delivered on 14th October 2024, which decision has neither been set aside nor successfully appealed against. He therefore maintained that there is no legal impediment to the entry of judgment in favour of the Advocate for the taxed sum, with costs of the application. 8. Mr. Omino, learned Counsel for the client submitted that the instant application was filed prematurely and in contravention of due process since at the time of its filing, there was a pending Reference challenging the taxation before the High Court. Counsel argued that once a Reference has been lodged against a taxation decision, the taxation ceases to be final until the Reference is heard and determined. He contended that an application for entry of judgment cannot properly lie during the pendency of such proceedings. He contended that the subsequent dismissal of the Reference does not sanitize or cure the procedural defect affecting the application, which was incompetent *ab initio*. 9. Mr. Omino submitted that the client has since moved to the Court of Appeal challenging *inter alia*, the decision striking out the Reference on the basis that the pleadings had been filed through email rather than through the Court’s CTS portal. He asserted that the pleadings were genuinely received by the Court, thus the Court ought to have invoked the overriding objective and the oxygen principles instead of dismissing the matter on procedural technicalities relating to the mode of filing. To buttress these submissions, Counsel relied on the cases of **Pambazuka Mart (K) Ltd v Javed** [2024] KEHC 5451 (KLR) and **Mburugu & another v Caleb** [2023] KEHC 25470 (KLR). **ANALYSIS AND DETERMINATION.** 1. I have considered the application filed herein, the grounds on the face of it and the affidavit filed in support thereof. I have also considered the replying affidavit by the client and the written submissions by Counsel for the parties. The issue that arises for determination is whether this Court should enter judgment for the Advocate against the client for Kshs.4,172,598.84 plus interest at the rate of 14% from the date of filing of the bill of costs. 2. This Court has jurisdiction to enter judgment provided that the bill of costs has been taxed, the Taxing Officer has issued a Certificate of Taxation, and the retainer is not disputed pursuant to the provisions of Section 51(2) of the Advocates Act which 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.*** 1. In the case of **Lesinko Njororge & Gathogo Advocates v Invesco Assurance Co. Ltd** [2021] KEHC 9046 (KLR),the Court in allowing an application for entry of judgment held that – ***The procedure provided in section 51(2) of the Advocates Act aids expeditious disposal of cases relating to recovery of advocate-client costs as long as: (1) the costs have been taxed by and certified under the hand of the taxing master by a Certificate of Costs; (2) the Certificate of Costs has not been set aside or stayed or appealed against on a Reference filed upon it; and (3) there is no dispute on retainer. In such case, judgment is ordinarily entered in the sum in the Certificate of Costs upon application by the advocate. The application may be commenced by way of a Notice of Motion which in law is potent tool for originating a suit.*** 1. It is not disputed that the Advocate herein acted for the client in **Milimani Civil Suit No. 119 of 2019**. It is not in contest that the client participated in the taxation proceedings. It is noteworthy that nowhere in the client’s replying affidavit has it denied the existence of the Advocate-client relationship. In the circumstances, this Court is satisfied that the issue of retainer does not arise for determination and that the Advocate was duly retained by the client. 2. The record shows that the Advocate filed an Advocate-client bill of costs dated 22nd February 2024, and the said bill was taxed at Kshs.4,172,598.84 vide a Ruling delivered on 14th October 2024. It is not in contest that the Taxing Officer has since issued a Certificate of Taxation dated 28th October 2024, for the taxed amount. 3. Upon examination of the client’s replying affidavit, it is evident that the client’s opposition to the application herein is principally founded on the argument that a Reference challenging the taxation was pending at the time the instant application was filed, therefore the instant application was filed prematurely and is thus incompetent. It is noteworthy that Paragraph 11 of the Advocates Remuneration Order provides the procedure and timelines for challenging a taxation decision. It states that a party objecting to a taxation is required to give Notice to the Taxing Officer within fourteen (14) days of the decision and thereafter file a competent Reference before the High Court. Compliance with the timelines set under Paragraph 11 is mandatory and not merely procedural. The rationale for the strict timelines is to ensure finality in taxation proceedings and certainty in recovery of Advocates’ fees. 4. It is evident from the Court record that the Taxation Ruling was delivered on 14th October 2024. Subsequently the Deputy Registrar issued a Certificate of Taxation dated 28th October 2024, for the taxed sum. The client on 31st October 2024 attempted to file a Reference against the Taxing Officer’s taxation. The said Reference was subsequently struck out by this Court in a Ruling delivered on 3rd October 2025 for failure to invoke this Court’s jurisdiction in the manner provided for under Paragraph 11 of the Advocates Remuneration Order. Consequently, this Court is satisfied that there is presently no valid Reference challenging the Taxation Ruling or the resultant Certificate of Taxation. According to the provisions of Section 51(2) of the Advocates Act, the client’s intended or pending appeal against the dismissal of the Reference does not in itself operate as a stay of proceedings nor does it invalidate the Certificate of Taxation. 5. It is not disputed that no order staying these proceedings or execution of the Certificate of Taxation has been issued or exhibited before this Court. The validity of the Certificate of Taxation remains unaffected unless and until the same is set aside or altered by a Court of competent jurisdiction. As at the time of writing this Ruling, the Certificate of Taxation dated 28th October 2024 was valid, binding and enforceable. 6. The client in opposition to the instant application asserted that its rights to a fair hearing under Article 50 of the Constitution was violated because the taxation proceedings allegedly proceeded without consideration of its submissions and because the Reference was dismissed on technical grounds. This Court cannot sit on appeal over the Taxation Ruling or the Ruling dismissing the Reference within the confines of the application herein. Those issues properly belong before the Court in a Reference or to the appellate forum seized of the matter, respectively. This Court’s mandate in the instant application is confined to determining whether the statutory conditions under Section 51(2) of the Advocates Act have been satisfied. 7. From the analysis I have made, I am satisfied that all the conditions set out under Section 51(2) of the Advocates Act have been complied with. For this reason, I enter judgment for the Advocate against the client in the sum of Kshs.4,172,598.84. 8. Interest on Advocates’ costs is provided for under Regulation 7 of the Advocates (Remuneration) Order, which states as hereunder – ***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.”*** 1. The import of Regulation 7 of the Advocates (Remuneration) Order is that interest on an Advocate's fees can only be charged after the lapse of one month from when the bill of costs was delivered to the client, and the claim for interest should have been raised before the amount of the bill of costs is paid or tendered in full. In this case, the client does not dispute having been served with the Advocate’s Advocate-client bill of costs dated 22nd February 2024. 2. The claim for payment of interest at 14% per annum has been raised in the instant application and the client is yet to pay the Advocate either in part or wholly, the amount taxed by the Taxing Officer in her Ruling delivered on 14th October 2024. In the end, this Court holds that the claim of interest at fourteen percent (14%) per annum is payable. 3. Regulation 7 of the Advocates (Remuneration) Order provides that interest on an Advocate’s fees accrues upon the lapse of one month from the date the bill is delivered to the client. This Court however notes that the Advocate has not demonstrated when its bill of costs was served upon the client. This Court therefore holds that interest shall be calculated from the date of this Ruling. 4. The upshot is that the Advocate’s application is merited and it is allowed in the following terms – 5. **Judgment is hereby entered for the Advocate against the client for Kshs.4,172,598.84;** 6. **The aforementioned sum shall attract interest at the rate of 14% per annum from the date of this Ruling until payment in full; and** 7. **Costs of the application are awarded to the applicant.** It is so ordered. **DATED, SIGNED**and**DELIVERED**at**NAIROBI** on this **12TH** day of**AUGUST 2026.** **Ruling delivered through Microsoft Teams Online Platform.** **NJOKI MWANGI** **JUDGE** **In the presence of:-** **No appearance for the Client/applicant** **Mr. Maingi Musyimi for the Advocate/respondent** **Mr. Muthomi – Court Assistant.**