[2018] KEHC 10086 (KLR)
The court found that the advocate's costs had been taxed and certified by the taxing officer, and there was no dispute as to the retainer. The respondent had not challenged the certificate of costs, filed any opposition, or attended the hearing. Section 51(2) of the Advocates Act provides that the certificate of...
Source-derived case information.
- Citation
- [2018] KEHC 10086 (KLR)
- Parties
- Applicant: Nyaundi Tuiyott & Company Advocates; Respondent: Africa Merchant Assurance Company Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 74 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
- Outcome
- judgment for applicant
- Judges
- MM Kasango
- Legal Topics
- Advocate Client Costs, Taxation of Costs, Certificate of Costs, Judgment Entry
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyaundi Tuiyott & Company Advocates
Applicant
Africa Merchant Assurance Company Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
Legal Issues
- 1 Whether judgment should be entered for the advocate on a taxed bill of costs where the retainer is not disputed.
- 2 Whether the court is required to do anything further once the certificate of costs is issued and unchallenged.
Ratio Decidendi
The court found that the advocate's costs had been taxed and certified by the taxing officer, and there was no dispute as to the retainer. The respondent had not challenged the certificate of costs, filed any opposition, or attended the hearing. Section 51(2) of the Advocates Act provides that the certificate of costs is final as to the amount unless set aside or altered by the court, and where the retainer is not disputed, the court may enter judgment for the certified sum. The court relied on established case law confirming that in such circumstances, no further action is required except to enter judgment for the advocate. Accordingly, judgment was entered for the applicant for the...
Court Disposition
judgment for applicant
Orders
- Judgment is entered for Nyaundi Tuiyott & Co Advocates against Africa Merchant Assurance Co. Limited for Ksh 138,694.
- The advocate is awarded the costs of the Notice of Motion dated 2nd May, 2018.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
MISC. APPLICATION NO. 74 OF 2017
IN THE MATTER OF THE ADVOCATES ACT CAP 16
AND IN THE MATTER OF ADVOCATE – CLIENT BILL OF COSTS
BETWEEN
NYAUNDI TUIYOTT & COMPANY ADVOCATES....ADVOCATES/APPLICANT
- VERSUS -
AFRICA MERCHANT ASSURANCE COMPANY LTD.....CLIENT/RESPONDENT
RULING
1. Nyaundi Tuiyott & Co. Advocates (hereinafter referred to as the advocate) have filed a Notice of Motion dated 2nd May, 2018 which is brought under Section 51 (2) of the Advocates Act Cap 16. That Section provides 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.”
2. The costs of the advocate as against the client, Africa Merchant Assurance Co. Limited, were taxed on 14th December, 2017 at ksh 138,694. The advocate’s retainer has not been disputed. The client was served with the application for judgment, but did not file any documents in opposition nor did it attend hearing before the court on 21st May, 2018, even though it had been served for that date.
3. The Courts in various decisions have held that in the case where the costs of an advocate are taxed and there is no dispute on retainer that judgment should be entered in favour of such advocate. Some of such decisions are:
i. Lubulellah & Associates Advocates v N K Brothers Limited [2014] eKLR where it was stated as follows:
“The law is very clear that once a taxing master has taxed the costs, issued a certificate of costs and there is no reference against his ruling or there has been a ruling and a determination made and not set aside and/or altered, no other action would be required from the court save to enter judgment. An applicant is not required to file suit for the recovery of costs. The certificate of costs is final as to the amounts of the costs and the Court would be quite in order to enter judgment in favour of the Applicant against the Respondent herein for the taxed sum..."
ii. In Owino Okeyo & Co. Advocates vs Mike Maina & Muthithi Investments Co. Ltdthe court had the following to say:
“In my view, the Section is applicable where there is no dispute about the “retainer”. In that situation, it makes it expedient, and less costly, for the advocate to obtain a quick Judgment. And that, I believe, is the purpose of that Section – that in clear cut situations where there is no dispute about the retainer, and the bill of costs has been taxed, it would be highly unjust to require the Advocate to file suit for the recovery of his fees.”
4. In the end, Judgment is hereby entered for Nyaundi Tuiyott & Co Advocates as against Africa Merchant Assurance Co. Limitedfor Ksh 138,694. The said advocate is also awarded the costs of the Notice of Motion dated 2nd May, 2018.
DATED, SIGNED and DELIVERED at NAIROBI this 13th day of June, 2018.
MARY N. KASANGO
JUDGE
Ruling read in open court in the presence of
Court Assistant..............................Sophie
………………………………………………for the Applicant
…………………………………………….for the Respondent