[2010] KECA 184 (KLR)
The court found that the applicant's bill of costs was taxed and a Certificate of Taxation was issued for Kshs. 89,126.85. The respondent did not challenge the certificate or present evidence that it had been set aside or varied. Section 51(2) of the Advocates Act provides that such a certificate is final as to the...
Source-derived case information.
- Citation
- [2010] KECA 184 (KLR)
- Parties
- Applicant: Muthoga Gaturu & Co. Advocate; Respondent: Gabriel Waweru Wanjohi t/a Mountain Rock Hotel
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 70 of 2002
- Procedural Posture
- Civil Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
- Outcome
- application allowed
- Judges
- SP Ouko
- Legal Topics
- Taxation of Costs, Certificate of Taxation, Advocate Remuneration, Judgment Entry on Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muthoga Gaturu & Co. Advocate
Applicant
Gabriel Waweru Wanjohi t/a Mountain Rock Hotel
Respondent
Procedural Posture
Civil Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
Legal Issues
- 1 Whether the applicant is entitled to judgment for the taxed costs as per the Certificate of Taxation.
- 2 Whether the Certificate of Taxation is final and conclusive in the absence of it being set aside or varied.
- 3 Whether the application is incompetent, defective, or premature as alleged by the respondent.
Ratio Decidendi
The court found that the applicant's bill of costs was taxed and a Certificate of Taxation was issued for Kshs. 89,126.85. The respondent did not challenge the certificate or present evidence that it had been set aside or varied. Section 51(2) of the Advocates Act provides that such a certificate is final as to the amount unless set aside or altered by the court. Since the retainer was not disputed and the certificate remained unchallenged, the applicant was entitled to judgment for the certified sum. The respondent's preliminary objection was not prosecuted, and there was no basis to find the application incompetent, defective, or premature. Accordingly, the application was allowed and...
Court Disposition
application allowed
Orders
- Judgment is entered for the applicant in the sum of Kshs. 89,126.85 as per the Certificate of Taxation.
- The applicant is awarded costs of the application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAKURU
Civil Miscellaneous Application 70 of 2002
MUTHOGA GATURU &CO.ADVOCATE……APPLICANT
VERSUS
GABRIEL WAWERU WANJOHI
T/A MOUNTAIN ROCK HOTEL…….....……RESPONDENT
RULING
The applicant’s costs against the respondent were allowed by the Deputy Registrar in the sum of Kshs.89,126. 85 and a Certificate of Taxation issued.The respondent has not settled the taxed costs hence this application which seeks that judgment in the aforesaid sum of Kshs. 89,126. 85 be entered.
Despite service of the hearing notice, the respondent or his counsel did not attend to canvass their notice of preliminary objection in which it is contended that this application is incompetent, defective and premature and ought to be struck out.
The applicants’ averments which have not been challenged are to the effect that they were instructed by the respondent on 6th February, 1997 in Nakuru C.M.C.C.No.1558 of 1996. Until 13th February, 1998 when the respondent withdrew instructions, the applicants had performed their part of the brief.That the respondent has failed/refused to pay their professional fees.
The applicants filed a bill of costs which was taxed at Kshs. 89,126. 85. The resultant Certificate of Taxation has not been set aside and the costs have not been settled.The application is expressed to be brought under section 51(2) of the Advocates Act (the Act), paragraph 7 of the Advocates (Remuneration) (Amendment) Order (L.N. 550 of 1997 and Order 50 rule 1 of the Civil Procedure Rules.
Section 51(2) aforesaid provides that:
“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.”
The “court” as used in the Act means the High Court.
The Taxation Certificate, a copy of which is annexed to the application, is prima facie evidence that the bill was taxed in the sum shown on it.That amount is final unless set aside or varied.No evidence has been presented that the certificate has been set aside orvaried by this court.
The application is allowed with costs in terms of prayer 1 of the Notice of Motion dated 13th July, 2006.
Dated, Signed and Delivered at Nakuru this 7th day of May, 2010.
W. OUKO
JUDGE