[2007] KEHC 3028 (KLR)
Although the certificate of taxation had not been set aside or altered and there was no dispute as to retainer, the respondent raised a serious issue that the applicant's costs had already been paid in full. This issue was not determined by the taxing officer and constitutes a substantive defence that requires...
Source-derived case information.
- Citation
- [2007] KEHC 3028 (KLR)
- Parties
- Applicant: Njogu & Company Advocates; Respondent: Savings and Loan Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 356 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment for Taxed Costs
- Outcome
- application dismissed with costs
- Judges
- DW Mbuteti
- Legal Topics
- Taxation of Costs, Advocate Client Fees, Certificate of Taxation, Retainer Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Njogu & Company Advocates
Applicant
Savings and Loan Kenya Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment for Taxed Costs
Legal Issues
- 1 Whether judgment should be entered for taxed costs under section 51(2) of the Advocates Act where the certificate of taxation has not been set aside or altered.
- 2 Whether the respondent's claim that the applicant's fees have been paid in full is a valid defence to the application for judgment for taxed costs.
- 3 Whether the application for judgment is premature in light of the respondent's intention to challenge the taxation.
Ratio Decidendi
Although the certificate of taxation had not been set aside or altered and there was no dispute as to retainer, the respondent raised a serious issue that the applicant's costs had already been paid in full. This issue was not determined by the taxing officer and constitutes a substantive defence that requires evidentiary consideration in a proper suit. The court held that judgment for taxed costs under section 51(2) of the Advocates Act is discretionary and not automatic, and where a bona fide dispute as to payment exists, the respondent must be afforded an opportunity to raise that defence in a suit commenced by plaint. Accordingly, the application for judgment was refused and dismissed...
Court Disposition
application dismissed with costs
Orders
- The application for judgment for taxed costs is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Misc Appli 356 of 2006
NJOGU & COMPANY ADVOCATES………….…………..APPLICANT
VERSUS
SAVINGS AND LOAN KENYA LIMITED………...……RESPONDENT
R U L I N G
The Applicant/Advocate herein seeks, by notice of motion dated 31st July, 2006, judgment for taxed costs under Section 51 (2) of the Advocates Act, Cap. 16, upon the grounds that the certificate of taxation has not been altered or set aside and that it is fair and just that judgment be so entered. The Respondent/Client has opposed the application upon the grounds ( as set out in the replying affidavit filed on 7th December, 2006) that the Applicant’s fees have been paid in full; that this issue was raised before the taxing officer who made no decision thereon; that the Respondent is desirous of challenging the taxation under rule 11 of the Advocates (Remuneration) Order, having duly lodged notice in that regard, but cannot do so as yet as the reasons for the taxation have not been supplied to it; and that the application for judgment is premature.
I have considered the submissions of the learned counsels appearing. There does not appear to be any dispute with regard to retainer, and it is common ground that the certificate of taxation has not been altered or set aside. Under section 51 (2) of Cap. 16 aforesaid, the court may make such order in relation to a certificate of taxation that has not been set aside or altered 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. It is a matter for the court’s discretion. Judgment for taxed costs will not necessarily always be available under the aforesaid statutory provision simply because there is no dispute as to retainer and the certificate of taxation has not been altered or set aside.
In the instant case the Respondent has raised the serious issue that the Applicant’s costs have been paid in full. That is a matter for evidence. The issue was raised before the taxing officer; I have perused the record, and no decision thereon was made on that issue. The Respondent must therefore be given an opportunity to raise that defence in a proper suit for the Applicant’s costs commenced by plaint.
In the event therefore, I must refuse the application. It is hereby dismissed with costs. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF MARCH, 2007.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 23RD DAY OF MARCH, 2007.