[2022] KEHC 15656 (KLR)

Mwangi Keng’ara & Co Advocates v Mungai (Miscellaneous Case E740 of 2021) [2022] KEHC 15656 (KLR) (Commercial and Tax) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15656 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Case E740 of 2021

DO Chepkwony, J

November 3, 2022

Between

Mwangi Keng’ara & Co Advocates

Advocate

and

Zipporah Mungai

Client

Ruling

Introduction 1. In the notice of motion application dated March 15, 2022, the advocate/applicant sought orders that the honorable court enters judgement on the certificate of taxation dated March 11, 2022 for the sum of Kshs 492,241. 92 together with interests at 14% per annum from the date of filling the bill for taxation on December 28, 2021 until payment is made in full, which in this case was done on May 11, 2022. She has also sought the interests accrued on the costs and disbursement from the date of filing the bill for taxation.

2. The application is supported by grounds set out in the supporting affidavit of Mercy Nduta Mwangi an advocate practicing in the firm name of Mwangi Kengára & Co Advocates, sworn on March 15, 2022. In her submissions, the applicant avers that the client instructed her to act on her behalf in the case, Milimani Commercial, CMCC No 4676 of 2019 which she ably did to its conclusion. It was the applicant’s argument that she prepared and forwarded a final fee note with regard to professional fees and disbursements to the client for settlement. The advocate/client’s bill of costs was taxed on March 11, 2022 and a certificate of taxation issued to certify the same. The applicant maintains that she is entitled to interest on costs and disbursements computed in the bill of costs at the rate of 14% per annum from the date of filing the bill for taxation.

3. In opposition of the application, the respondent has urged the court to disallow the application on the grounds that the taxed costs were settled within the timelines stipulated by the law, which is 30 days after the Taxing Master delivers the ruling and has relied upon the case of Odera Obar & Co Advocates v U Design, Misc No 392 of 2015 [2016 eKLR] to confirm her assertion. The respondent argues that she would not have known beforehand what the court would have assessed as being due to the advocate, hence terms it unjust and unreasonable to require the client to pay interest on the assessed amounts for the periods prior to delivery of the ruling of taxation. The respondent maintains that there is no evidence of service of the advocates bill on the client prior to taxation and disqualifies the email sent to the client as service as it does not meet the stipulated standards of service.

Analysis and Determination 4. I have carefully read through the application dated March 15, 2022, the affidavit in support and the response thereto alongside the written submissions filed by both parties so as to come up with a determination. I find the issues for determination being whether or not the applicant’s certificate of taxation dated March 11, 2022 for the sum of Kshs 492,241. 92 together with costs and interest can be entered as a Judgment of the court.

5. Both the applicant and the respondent have relied on the provisions of section 51(2) of the Advocates Act which state 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”.

6. Emphasis has been made on rule 7 of the Advocates Remuneration Order which provides for interest on the said costs at 14% per annum until full payment is made. This was supported in the case of Makhecha and Company Advocates v Central Bank of Kenya[2020]eKLR which held that rule 7 of the Advocates Remuneration Order entitles an advocate to a charge of interest above normal rate of 12% provided that the claim for interest was raised before settlement of the advocate’s bill of costs.

7. The applicant invoked section 26(1) and (2) of the Civil Procedure Act which provides as follows;(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principle sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principle 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 percent per annum.

8. On the basis that the purpose of the award of interest was to compensate the claimant for having been denied the right to enjoy her money from 2019 when the claimant rendered her services to the respondent.

9. Having carefully read and considered the evidence submitted before this court in opposition or support of the application, I find no reference has been made against the decision of the Taxing Master and neither has the certificate of costs been set aside or altered. The retainer is not disputed as well. Therefore, the only issue arising is whether the claimant is entitled to an order for interests on the taxed amount herein as demanded.

10. It is imperative to note that this court is guided by the provisions of rule 7 of theAdvocate Remuneration Order which states that the interest of 14% per annum is only charged from the expiration of 30 days from the date of delivery of the bill of cost to the client and is only chargeable if the interest was raised before the amount of the bill was paid in full.

11. The applicant served the respondent with the bill of cost vide a letter on the November 29, 2021 and has attached a supplementary affidavit showing the same and agrees that the mode of service is within the confines of service recognized by law. Therefore, this court takes into consideration that the respondent was aware of the bill of cost as of the date of service. The certified cost became payable from the date of service as it is not contested, altered or set aside and the retainer is not disputed either.

12. The claim for payment of 14% interest per annum was raised in the present application and as the certified costs had not been paid until ruling on this matter was delivered, the same was payable from the date of service.

13. In conclusion, the application dated March 15, 2022 is merited, hence allowed in the following terms:-a)Judgement is hereby entered in favor of the advocate in the sum of Kshs 492,241. 92 with interest at 14% per annum calculable at 30 days from the date when the bill of cost was served upon the client.b)Costs of this application be awarded to the advocate.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 3rd DAY OF NOVEMBER, 2022. D. O. CHEPKWONYJUDGEIn the presence of:M/S Mwangi counsel for ApplicantMr. Mbese counsel for RespondentCourt Assistant - Sakina