[2023] KEHC 25980 (KLR)

Nduati v Secretary, Firearms Licensing Board & another; Attorney General (Interested Party) (Application 41 of 2019) [2023] KEHC 25980 (KLR) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 25980 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Application 41 of 2019

J Ngaah, J

December 1, 2023

Between

Stanley Thiong’o Nduati

Applicant

and

Secretary, Firearms Licensing Board

1st Respondent

Firearms Licensing Board

2nd Respondent

and

Attorney General

Interested Party

Ruling

1. The application before court is a motion dated 26 January 2023 expressed to be filed under section 1A, 1B and 3A of the Civil Procedure Act, cap. 21; section 51(2) of the Advocates Act, cap. 16 and Order 51 Rule of the Civil Procedure Rules. The prayers in the motion have been framed as thus:1. That the Certificate of Taxation herein dated 21. 12. 2022 for Kenya Shillings Nine Hundred and Forty-Seven Thousand Six Hundred and Twenty (Kshs. 947,620/-) be entered/adopted as a Judgement of this Court in favour of the Applicant/Ex-parte Applicant against the Respondents.2. That there be interest on the judgment in (1) above at 14% per annum from the date of service of the Bill of Costs on 26. 09. 2022 until payment in full.3. That the costs of this application be borne by the respondents.”

2. The application is supported by the affidavit of Mr. Mbugua Mureithi sworn on 26 January 2023. Mr. Mureithi has sworn that he is an advocate of this Honourable Court and that he is on record for the applicant.

3. The applicant obtained a judgement in his favour in the substantive suit on 10 February 2020 and that on 21 February 2020 he was issued with the decree. According to the decree, the 1st and 2nd respondents were to meet the applicant’s costs in the substantive motion.

4. Subsequently, the applicant filed a party and party bill of costs, more particularly dated 12 August 2022. The bill of costs was duly served upon the respondents and the interested party.

5. The bill was taxed on 30 November 2022. It was taxed at Kshs. 947,620/= and a certificate of taxation in that regard issued on 21 December 2022.

6. The certificate of taxation has neither been varied or set aside. Again, no reference has been filed against the taxation.

7. The applicant has, therefore, sought an order from this Honourable Court for entry of judgment in terms of the taxed amount.

8. The respondents and interested party opposed the motion and filed grounds of opposition to that effect. According to them, the application is contrary to Section 21 of the Government Proceedings Act, cap. 40. The application is also said to be contrary to paragraph 7 of the Advocates Remuneration Order since there exists no advocate-client relationship between the applicant and the 1st and 2nd respondents.

9. It is also pleaded on behalf of the respondents and interested party that the application effectively seeks a review of the judgment delivered in the substantive suit. The application is, therefore, an abuse of the due process of the court.

10. In his submissions, the applicant urged that he has made a case for the adoption of the certificate of taxation as the judgment of the court. The law upon which he based his submission is section 51(2), cap. 16 of the Advocates Act which states as follows:51(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.

11. The applicant cited the cases of Del Monte Kenya Limited v Kenya National Chamber of Commerce and Industry (KNCCI) Murang'a Chapter & 2 others (2022) KEELC 2842 (KLR) and Lubulellah & Associates Advocates versus N K Brothers Limited (2014) eKLR to emphasise the finality of the amount taxed as costs in the certificate of taxation.

12. The applicant also cited the case of Republic v Law Society of Kenya Disciplinary Tribunal; Jacinta Mutheu Antony (Interested Party) Ex parte Muema Kitulu (2019) eKLR where Nyamweya, J. (as she then was), held that judgment on a certificate of taxation applies both to party and party bill of costs and advocate-client costs.

13. The applicant also urged that section 21 of the Government Proceedings Act does not apply. The certificate of order against Government, it is urged, comprises the entire judgment or decretal amount, taxed costs and interest against the Government. In these circumstances, the certificate forms the basis upon which the government debt is settled.

14. As to whether interest is payable, the applicant relied on paragraph 7 of the Advocates Remuneration Order which states as follows:7. 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. "

15. It is urged that the rate of 14% on interest is provided for in the Advocates Remuneration Order and section 27(2) of the Civil Procedure Act and that it applies to both party and party and advocate-client costs. The applicant has relied on these provisions to urge that he is entitled to interest on costs at 14% per annum from the date of service of the bill of costs on 26 September 2022.

16. As to who should bear the costs of the instant application, the applicant has again relied on section 51(2) of the Advocates Act which is to the effect that the judgment for the certified sum will be entered with costs. He has also relied on section 27(1) of the Act which provides that costs follow the event.

17. On behalf of the respondents and the interested party, the Attorney-General has submitted that the applicant has not extracted a certificate of order against the Government despite the fact that he was issued with a certificate of taxation on 21 December 2022. While relying on section 21 of the Government Proceedings Act, the learned counsel for the Attorney General has urged that, in the absence of a certificate of order against the Government, no liability accrues against it as to warrant award of interest.

18. The Attorney General has also submitted that paragraph 7 of the Advocates Remuneration Order is not applicable to the applicant’s case as no advocate-client relationship exists between the applicant and the respondents. According to him, under paragraph 7 of the Advocates Remuneration Order, interest may only be charged in an advocate-client bill of costs.

19. Granting interest, it is urged, is tantamount to reviewing the judgment in the substantive suit according to which only costs were awarded. No order for interest on cost was made in that judgment.

20. The learned counsel for the respondents and the interested party urged that, in any event, a judicial review court cannot review its own decision or previous order and that the only alternative open to a party aggrieved by an order made in exercise of the court’s special jurisdiction of judicial review is an appeal against the order. To this end, counsel relied on the decisions in Biren Amrital Shah & Another versus Republic & 3 Others (2013) eKLR and Julius Ntogaiti Methang’athia & 4 Others versus District Land Adjudication & Settlement Officer Meru North (Nyambene) District & 3 Others (2000) eKLR. The respondents’ and interested party’s argument is that of the applicant was not satisfied with the award of interest in the judgment of the substantive suit, he ought to have appealed.

21. The record shows that on 10 February 2020, the applicant was granted judicial review orders in a suit he filed against the respondents. He was also awarded costs of the suit to be paid by the 1st and 2nd respondents. The order for costs was captured as follows:III.The 1st and 2nd respondents shall meet the applicant’s costs of the notice of motion dated 4th March 2019. ”

22. The applicants subsequently filed a bill of costs against the 1st and 2nd respondents which was taxed at Kshs. 947,620/=. The certificate of taxation issued in that behalf on 21 December 2022 reads as follows:CERTIFICATE OF TAXATIONI Hon.E. C. Chelule Deputy Registrar of the High Court of Kenya, Judicial Review Division at Milimani do hereby certify that the ex parte applicant’s bill of costs dated 12th August, 2022 lodged by M/s Mbugua Mureithi & Advocates was on 30th November, 2022 taxed and allowed as against the respondents for a sum of Kenya Shillings Nine Hundred and Forty Seven Thousand, Six Hundred and Twenty (Kshs. 947,000, 620/-) only.Dated at Nairobi this 21st December 2022SignedDeputy RegistrarHigh Court of Kenya at Nairobi”

23. In the motion before court, the applicant seeks the certificate of taxation to be adopted as the judgment of this Honourable Court and further, he seeks interest at 14% per annum from the date of service of the bill of costs until payment in full.

24. Section 51(2) of the Advocates Act which the applicant has invoked as the legal basis for his application reads as follows:(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.

25. Of relevance to the applicant’s application is the part of the provision on when judgment can be entered on costs certified as having been taxed in a bill of costs submitted for taxation before a taxing officer. This provision is clear that judgment may be entered “in a case where the retainer is not disputed."

26. The term “retainer” is defined in the Blacks Law Dictionary, 9th Edition as follows:1. A client's authorization for a lawyer to act in a case. 2. A fee that a client pays to a lawyer simply to be available when the client needs legal help during a specified period or on a specified matter. 3. A lump-sum fee paid by the client to engage a lawyer at the outset of a matter. - Also termed engagement fee. 4. An advance payment of fees for work that the lawyer will perform in the future. Also termed retaining fee.”

27. It follows that reference to “the retainer” in section 52(1) presupposes an advocate-client relationship bill of costs where a retainer entered between an advocate and his client is the basis of the bill of costs. If the retainer is not in dispute, the bill may be taxed in terms of the retainer and, on a proper application, judgment may then be entered accordingly.

28. If the judgment contemplated under section 51(2) can only be entered on the basis of a retainer, it would not, by necessary implication, be available in a party, in a party and party bill of costs. The bill of costs out of which the applicant obtained the certificate of taxation on which he now seeks judgment in this case was such a party and party bill of costs. The bill was not an advocate-client bill of costs based on a non-contentious retainer in which the advocate was seeking to enforce payment of his fees. It was, on the contrary, a bill in which applicant sought to have recover his costs from his adversaries in the suit in which he obtained judgment against them.

29. To the extent that the applicant is seeking judgment under section 51(2) of the Act, yet the application is on the basis of a certificate of taxation of a party and party bill of costs, the application would be incompetent.

30. But it does not necessarily follow that the applicant cannot seek to obtain judgment on the amount taxed as his costs. Of course he can only that he cannot proceed in that direction on the strength of section 51(2) of the Advocates Act.

31. In the old East African decision of Mosdell, J in Santana Fernandes versus Kara Arjan & Sons & Others (1962) EA 473, in an application for execution under Order. 21 rule 11 of the then Tanganyika Civil Procedure Code, the learned judge held that an application for execution must be preceded by a decree.

32. In section 2 of the Civil Procedure Act, a decree is defined, in part, as “…the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit…”

33. The “adjudication” referred to in this definition would, no doubt, include a judgment. If a judgment is formally expressed in a decree, it logically follows that a judgment precedes a decree and the latter is an extract of the former.

34. So, any party who seeks enforcement of payment, by way of execution, of costs duly certified in a taxation as due to him, will have to obtain judgment from which a decree will be extracted. Following the decision of Mosdell, J in Santana Fernades versus Kara Arjan & Sons Others (supra), the decree would be the basis of the application for execution. The learned judge put it this way:It is noted that Mr. sayani’s application for execution has been made prior to the issue of a decree, and I understand this, not infrequently, is the practice. At the first hearing of the present application on June 13, 1962, I adjourned the matter in order to enable Mr Sayani to file a counter-affidavit, and I ordered that a decree was not to be issued until my decision on the application has been made.For the guidance of practitioners in the future, I would state that the issue of a decree is a prerequisite to an application for execution thereof under O. 21, rule 11 of the Civil Procedure Code.” (Emphasis added).

35. Order 21 rule 11 of the Indian Civil Procedure Code, 1908 which the learned judge made reference to read as follows:11. Oral application.(1)Where a decree is for the payment of money the Court may, on the oral application of the decree ­holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment­ debtor, prior to the preparation of a warrant if he is within the precincts of the Court.(2)Written application.Save as otherwise provided by sub­rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely ­(a)the number of the suit ;(b)the names of the parties ;(c)the date of the decree ;(d)whether any appeal has been preferred from the decree;(e)whether any, and (if any), what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree;(f)whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;(g)the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross­ decree, whether passed before or after the date of the decree sought to be executed;(h)the amount of the costs (if any) awarded;(i)the name of the person against whom execution of the decree is sought; and(j)the mode in which the assistance of the Court is required, whetheri)by the delivery of any property specifically decreed ;ii)by the attachment and sale, or by the sale without attachment, of any property ;iii)by the arrest and detention in prison of any person ;iv)by the appointment of a receiver ;v)otherwise, as the nature of the relief granted may require.(3)The Court to which an application is made under sub­rule (2) may require the applicant to produce a certified copy of the decree.

36. This rule is in pari materia with Order 21 rule 7 of the Civil Procedure Rules, 2010 as Order 21 rule 7. The point is, whether execution is on the principal amount in case of a liquidated claim or on costs, the application for execution cannot be made without a decree having first been extracted and, therefore, before a judgment has been obtained.

37. Ordinarily, the applicant, like any other decree-holder, would be entitled to a judgment from which he would obtain a decree for execution. But this course will not be of much value to him because the respondents against whom the process of execution would issue are protected from ordinary execution process and, to be precise, the execution contemplated under Order 21 rule 7. They were respectively described in the applicant’s statutory statement as “the secretary of Firearms Licensing Board, established under section 3 of the Firearms Act (Chapter 114, Laws of Kenya) and a statutory body established under section 3 of the Firearms Act…”

38. The 1st respondent would ordinarily be an officer of the Government while the 2nd respondent is a board established under section 3(1) of the Firearms Act, cap. 114 and whose membership consists of persons from various Government departments appointed by the relevant cabinet secretary (see section 3(2) of the Firearms Act).

39. Under section 21 of the Government Proceedings Act, the Government would be the respondent since there is no provision in the Firearms Act according to which either the board or its individual officers would be responsible for satisfaction of a court decree.

40. Speaking of orders which, in this case would include decrees against Government, section 21 of the Government Proceedings Act states as follows:21. Satisfaction of orders against the Government(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.(2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.(3)If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.(4)Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.(5)This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.

41. It is clear from section 21(4) that “no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.” It follows that even if it was open to the applicant to proceed with execution, he would not proceed against any of the respondents.

42. Section 21(1) reveals the futility of the applicant obtaining a judgment on costs for purposes of execution against Government. According to this provision of the law, upon taxation of his bill of costs, all that the applicant was required to do was to apply to the taxing officer, for a certificate, in a prescribed form, detailing the particulars of the debt due from the Government or rather the extent of Government’s liability to the applicant. The certificate, commonly referred to as “a certificate of order against government” would have been issued after the taxation of the bill of costs.

43. Under section 21(2), the certificate would be served upon the Attorney General who would presumably liaise with the Accounting Officer of the relevant Government department with a view to paying to the applicant or his advocate the amount appearing on the certificate.

44. I need not belabour the point that, as much as the applicant would ordinarily be entitled to obtain a judgment on his costs, he cannot execute the decree obtained therefrom against any of the respondents, in particular, or against the Government, generally.

45. The other question is that of interest. The applicant wants interest on costs. The basis of the application of this particular order is paragraph 7 of the Advocates Remuneration Order which reads as follows:7. 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.”

46. This rule is obviously not applicable to any interest that may be payable to party in party and party costs. It is, by and large, self-explanatory that any interest charged under this provision relates to a bill in respect of fees for services rendered by an advocate to his client.

47. This is not the case here where costs have not only been taxed and a certificate of taxation issued to that effect but also that the costs are for a party against the other; or, party and party costs.

48. In any event, there was no order for interest on costs in the judgment in which the applicant was awarded costs. If interest on costs was not expressly given in the judgment, it would not be awarded at this stage of the proceedings, assuming the applicant’s application was a viable one.

49. I need not say more on this than what Rudd, J said in Shadi Ram Mohindra versus B.C. Mohindra (1957) EA 208 on this question of interest on costs with particular reference to sections 26 and 27 (2) of the Civil Procedure Act.The learned judge noted as follows:In my opinion s. 26 of the Civil Procedure Ordinance does not apply to interest on costs. The wording of this section is perhaps capable of applying to decrees for costs if there were no other specific provision. But in my opinion section 27 (2) specifically deals with the interest on costs and so overruled any possible application of s. 26 to interest on costs. In my opinion when the costs are awarded to the plaintiff or defendant they did not carry interest unless there is an order for interest on costs.”

50. For reasons I have given, I am inclined to reach the conclusion that the applicant’s application is incompetent and an abuse of the due process of this Honourable Court. It is hereby dismissed with costs. It is so ordered.

SIGNED, DATED AND DELIVERED ON 1ST DECEMBER 2023NGAAH JAIRUSJUDGE