[2019] KEHC 1513 (KLR)
The court held that, despite the application being uncontested, it is incumbent upon the applicant to aver in the supporting affidavit that the certificate of costs has not been set aside, altered, varied, or appealed against. The applicant failed to make such an averment, and the court could not determine from the...
Source-derived case information.
- Citation
- [2019] KEHC 1513 (KLR)
- Parties
- Applicant: Ngaywa Ngigi & Kibet Advocates; Respondent: Xplico Insurance Company Limited
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 73 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
- Outcome
- leave to file supplementary affidavit granted; no judgment entered
- Judges
- A Mshila
- Legal Topics
- Taxation of Costs, Certificate of Costs, Judgment on Taxed Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngaywa Ngigi & Kibet Advocates
Applicant
Xplico Insurance Company Limited
Respondent
Procedural Posture
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 costs.
- 2 Whether the applicant has satisfied the conditions under Section 51(2) of the Advocates Act for entry of judgment.
Ratio Decidendi
The court held that, despite the application being uncontested, it is incumbent upon the applicant to aver in the supporting affidavit that the certificate of costs has not been set aside, altered, varied, or appealed against. The applicant failed to make such an averment, and the court could not determine from the material before it whether the certificate of costs was final and unchallenged. Therefore, the court was unable to exercise its discretion to enter judgment for the applicant. Instead of striking out the application, the court granted the applicant leave to file a supplementary affidavit to address the omissions.
Court Disposition
leave to file supplementary affidavit granted; no judgment entered
Orders
- The applicant is granted leave to file a supplementary affidavit to address the omissions.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
MISC.APP.NO. 73 OF 2019
IN THE MATTER OF THE ADVOCATES ACT
BETWEEN
NGAYWA NGIGI & KIBET ADVOCATES..............APPLICANT
VERSUS
XPLICO INSURANCE COMPANY LIMITED.....RESPONDENT
RULING
1. The Notice of Motion is dated the 24th September, 2019 and is brought under the provisions of Section 51(2) of the Advocates Act and the applicant seeks the following orders;
i. That judgment be entered in favour of the applicant against the respondent for the sum of Kenya Shillings KShs.140,995/-;
ii. The respondent do pay to the applicant the costs of the application;
2. The application is premised on the grounds on the face of the application and on the Supporting Affidavit made on the same date by JOSEPH N.NGIGI ADVOCATE who deponed that the applicant had lodged its Bill of Costs which was allowed and taxed against the respondent in the sum of KShs.140,995/= and a Certificate of Cost was issued; that the respondent was duly served with the application and did not file a response to the same; and has failed and or neglected to make good any payment on the taxed costs; and as the application was uncontested the applicant prayed that judgment be entered as prayed;
3. The applicable law is found at Section 51(2) of the Advocates Act reads as follows;
“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.”
4. Even though the application was uncontested it is incumbent upon the applicant to make an averment in the Supporting Affidavit that it had satisfied the conditions of taxation and that the Certificate of Costs had not been set aside, altered varied or appealed against; the affidavit only makes reference to the respondent’s refusal to pay the legal fees leading to the filing of the Bill of Costs dated 3/07/2019 and its taxation;
5. This court states that it is a court of record and reiterates that to justify an order under the provisions of section 51(2) the court must be satisfied by the material placed before it one cannot decipher whether the certificate of costs had not been appealed against, set aside, varied or altered; so as to make a determination;
6. From the material placed before it this court is unable to make any finding or determination on whether the case before it is a suitable one for it to exercise its discretion in favour of the applicant and thereafter proceed to enter judgment against the respondent for the certified sum;
7. Instead of striking out the application this court will give the applicant leave to file a Supplementary Affidavit to include the omissions.
Orders Accordingly.
Dated, Signed and Delivered at Nyeri this 5th day of December, 2019.
HON. A. MSHILA
JUDGE