[2010] KEHC 2663 (KLR)
The court found that the advocate was duly retained by the client to prosecute the appeal and that the advocate's bill of costs was taxed ex-parte after the client failed to attend the taxation hearing despite being served. The certificate of taxation issued was not set aside or altered, and the client did not...
Source-derived case information.
- Citation
- [2010] KEHC 2663 (KLR)
- Parties
- Applicant: Obaga & Company Advocates; Respondent: Kipkebe Limited
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 4 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
- Outcome
- judgment for the applicant/advocate in accordance with the taxed costs; liberty to execute; costs of application to the advocate
- Judges
- DK Musinga
- Legal Topics
- Taxation of Costs, Advocate Client Bill, Certificate of Taxation, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Obaga & Company Advocates
Applicant
Kipkebe Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
Legal Issues
- 1 Whether judgment should be entered for the advocate in accordance with the taxed costs.
- 2 Whether the advocate is entitled to execute against the client based on the certificate of taxation.
- 3 Whether the client had a valid dispute regarding the retainer or the taxed bill of costs.
Ratio Decidendi
The court found that the advocate was duly retained by the client to prosecute the appeal and that the advocate's bill of costs was taxed ex-parte after the client failed to attend the taxation hearing despite being served. The certificate of taxation issued was not set aside or altered, and the client did not dispute the retainer or challenge any items in the bill. In accordance with Section 51(2) of the Advocates Act, the court held that the certificate of taxation is final as to the amount of costs, and judgment should be entered for the advocate for the taxed amount. The advocate is entitled to execute against the client for the certified sum, and the client is to bear the costs of...
Court Disposition
judgment for the applicant/advocate in accordance with the taxed costs; liberty to execute; costs of application to the advocate
Orders
- Judgment is entered for the advocate in accordance with the taxed costs of Kshs. 111,226/=.
- The advocate is at liberty to institute execution proceedings against the client.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII Miscellaneous Civil Case 4 of 2008
OBAGA & COMPANYADVOCATES..........THE ADVOCATES/APPLICANT
VERSUS
KIPKEBE LIMITED.............................................THE CLIENT/RESPONDENT
RULING
The Advocate filed an application dated 20th April, 2009 brought under the provisions ofsection 51 (2)of theAdvocates Act.
The application seeks two substantive orders:
“(a) That judgment be entered for the Applicant/Advocate
in accordance with the taxed costs herein.
(b) That the applicant be at liberty to execute against the
Respondent.”
The application arises fromHCCA NO. 19 OF 2003 KIPKEBE LTD. –VS- JANE MOREKA ONGERI,at Kisii, in which the Advocate was instructed by the client to lodge the appeal. The said instructions were given on 19th February, 2003. In the subordinate court matter that gave rise to the appeal,CMCC NO. 263 OF 2002at Kisii,JANE MOREKA ONGERI –VS- KIPKEBE LTD., the advocate had been instructed by M/s Timamy & Company Advocates to hold brief for them. That was with the client’s approval.
On 20th July, 2005 Timamy & Company had written to Obaga & Company informing them that they had seized acting forKIPKEBE LTD. as at 30th June, 2005. Timamy & Company requested the advocate to send to them fee notes for work done upto 30th June, 2005 in respect of some 27 matters which includedCMCC NO. 263 OF 2002aforesaid but not the said appeal. Obaga & Co. forwarded its fee note and proceeded to file a notice of Change of Advocates in the said matter on 26th October, 2005.
The advocate prosecuted the appeal successfully and thereafter rendered a fee note to the client. The client in turn instructed the firm of Oguttu Mboya & Co. Advocates to negotiate the said fee note. Parties could not agree on the amount of fees payable and Obaga & Company filed their bill of costs for taxation. The bill was listed for taxation on 30th June, 2008 and the taxation was done ex-parte due to non-attendance of the client and/or her representative. The bill was taxed at Kshs. 111,226/= and a certificate of taxation issued on 3rd July, 2008.
Section 51 (2)of theAdvocates Actprovides 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 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.”
In this matter, there can be no valid dispute that the advocate was retained by the client to instituteHCCA NO. 19 OF 2003. The appeal was successfully mounted. If there were any items in the bill of costs that the client was not happy with, it ought to have challenged the same when the bill came up for taxation but the client failed to attend court, though duly served with a notice of taxation. The certificate of costs has not been set aside or altered. In the circumstances, I enter judgment for the Advocate in accordance with the taxed costs. The Advocate shall be at liberty to institute execution proceedings against the client. The client shall also bear the costs of this application.
DATED, SIGNED AND DELIVERED AT KISII THIS 16TH DAY OF APRIL, 2010.
D. MUSINGA
JUDGE.