[2023] KEHC 25008 (KLR)

Odhiambo Owiti & Co Advocates v Wanga (Miscellaneous Civil Cause 218 of 2019) [2023] KEHC 25008 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25008 (KLR)

Republic of Kenya

In the High Court at Migori

Miscellaneous Civil Cause 218 of 2019

RPV Wendoh, J

November 9, 2023

IN THE MATTER OF TAXATION OF ADVOCATE/CLIENT BILL OF COSTS

Between

Odhiambo Owiti & Co Advocates

Advocate

and

Stephen Odero Wanga

Client

Ruling

1. This ruling relates to the Notice of Motion dated 31/5/2023, brought under the provisions of Section 51 of the Advocates Act Cap 16 and Rule 7 of the Advocates Remuneration Order 2014.

2. The applicant, Odhiambo Owiti & Co. Advocates seeks the following orders: -1. The certificate of costs dated 27/2/2023 in respect of the applicant’s/advocate’s bill of costs dated 25/2/2019 in the sum of One Hundred and Seventy Thousand Seven Hundred and Thirty Three (Kshs. 170, 733/=) to be paid by the respondent/client to the applicant/advocate be adopted as judgement and decree of this court.2. That the applicant be awarded interest on the said costs at 14% per annum from 28/3/2019. 3.Costs of this application be granted to the applicant/advocate.

3. The application is based on grounds in the body of the application and the supporting affidavit of Sharon Omollo, Counsel practicing in the firm of the applicant. She deposed that on or about 8/12/2017, the respondent instructed the applicant to act for him in Migori ELC No. 873 of 2017 Dr. Obiero Onganga vs County Government of Homabay & 3 Others; that the applicant entered appearance and filed a statement of defence on behalf of the respondent; that the matter was transferred to Mbita in Mbita ELC No. 10 of 2019 Dr. Obiero Onganga vs County Government of Homabay & 3 Others; that the applicant represented the respondent until 6/2/2019 when the applicant made an application to cease from acting which application was heard and allowed; that the applicant filed an advocate - client bill of costs on 25/2/2019 which was taxed, assessed and allowed in the sum of One Hundred and Seventy Thousand Seven Hundred and Thirty Three (Kshs. 170, 733/=); that a certificate of costs was issued on 22/3/2023; that the certificate of costs has not been set aside or altered; that the applicant is entitled to interest on the costs and disbursements at the rate of 14% per annum from 28/3/2019 until payment in full.

4. The application was opposed. Mr. Odhiambo Humphrey Obach Counsel practicing in the name and style of H. Obach & Partners Advocates swore a replying affidavit dated 2/8/2023. Counsel deposed that the application before this court is an abuse of the court process which does not meet the threshold for the grant of the orders sought; that the application is frivolous, incompetent, misconceived and offends Rule 7 of the Advocate Remuneration Order and ought to be dismissed; that once a certificate of costs is issued and there being no reference made against the decision of the taxing master, no action is required save for the entry of judgement by the court and no suit for recovery of costs is required; that it is not clear when the advocate’s bill of costs was served upon the respondent; that the application is made in bad faith and ought to be dismissed with costs.

5. The application was canvassed by way of written submissions. The applicant filed its submissions on 28/8/2023. It was submitted that Section 51 (2) of the Advocates Act, Cap 16 allows for an application for the conversion of the certificate of costs into a judgement and decree where there is no dispute on the retainer. The applicant referred to the case of Otieno Ragot & Co. Advocates vs National Bank of Kenya (2016) eKLR where the court made an interpretation of Rule 7 of the Advocates Remuneration Order.

6. The applicant also submitted that it is only where proof of service cannot be tendered that the court cannot award interest as it was held in the cases of Otieno Ragot & Co. Advocates vs Kenindia Assurance Co. Ltd (2016) eKLR, Mutugi, Umara & Muzna Co. Advocates (formerly known as Joseph Munyithya & Co. Advocates va Elsek & Elsek Construction Limited (2015) eKLR and Wainaina Ireri & Co. Advocates vs Kenya Bus Services Limited (2005) eKLR.

7. The applicant submitted that from the foregoing decision, the document that is required to be served can either be a bill of costs as filed or the certificate of costs issued after taxation which amounts to the final bill; that there is no dispute that the applicant served the bill upon the respondent on 28/3/2019 which had been previously taxed by the Deputy Registrar in Kisumu.

8. In its supplementary submissions, the applicant submitted that the issue in the respondent’s submissions is on the issue of when the interest should start running; that the there is proof of service that the bill of costs was served upon the respondent on 7/3/2019 by registered post; that the issue of interest can only be dealt with at the point of entry of judgement as there can be judgement without interest but there can be no interest without judgement. The applicant urged this court to allow the application as prayed.

9. The respondent filed his submissions dated 4/9/2023. He submitted that the bill was taxed on 27/2/2023 but it is not clear when the bill was served; that Rule 7 of the Advocates Remuneration Order is not couched in mandatory terms; that the operative word is “may” and the court can determine when the interest becomes calculable. Reliance was placed in the case of D. Njogu & Co. Advocates vs Kenya National Capital Corporation (2006) eKLR and Lubulellah & Associates Advocates vs N.K. Brothers Limited (2014) eKLR.

10. The respondent also submitted that Rule 7 is clear that interest runs after expiry of one month from the date when the bill was served as it was held in the case of Kithi & Company Advocates vs Menengai Downs Limited (2015) e KLR and Macharia - Mwangi Njeru & Co. Advocates vs Menengai Downs Limited (2015) eKLR; that the applicant failed to adduce evidence when the correct bill was sent to the respondent and there is no evidence that the applicant had claimed interest at 14% at least one month before they filed their bill of costs; that the bill of costs to which the 14% interest is claimed was much higher than the amount awarded by the taxing officer; that the application herein lacks merit and it should be dismissed with costs.

11. I have considered the application, the response thereto and the submissions by both parties.

12. There is no dispute on the issue of retainer of the advocate - client relationship. It is evident that the applicant filed a bill of costs dated 25/2/2019. The amount being claimed was Kshs. 571,720. 20. The bill of costs was taxed and a certificate of costs of Kshs. 170,733/= was issued on 27/2/2023. The costs awarded have not been challenged or set aside.

13. Section 51 (2) of the Advocates Act reads: -“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.”

14. Pursuant to the above provisions, there being no dispute on the issue of retainer and the taxed amount, the law provides that this court is enjoined to enter judgement in the sum certified to be due with costs. Therefore, the argument by the respondent that there is no further proceedings required once a certificate of costs is issued cannot stand. In the case of Lubulellah & Associates Advocates (supra) the court agreed that the only action required once the taxing master has taxed the costs and the same has not been challenged, is for the court to enter judgement. The only issue which the court failed to agree with the applicant is filing a fresh suit to recover the said costs. I therefore enter the judgement in favour of the applicant in the sum of One Hundred and Seventy Thousand Seven Hundred and Thirty Three (Kshs. 170, 733/=).

15. Paragraph 7 of the Advocates Remuneration Order provides: -“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.”

16. As provided for under Paragraph 7 of the Advocates Remuneration Order, an advocate is entitled to interest at the rate of 14% at the expiry of one month from the delivery of his bill to his client. The condition for an advocate claiming the 14% interest is that the claim should be raised before the amount in the bill is paid.

17. There is a return of service dated 15/3/2019 which shows that the respondent was served by way of registered post. The records from the post office indicates that the letter containing the bill of costs to the respondent was dispatched from the post office on 7/3/2019. The respondent has not denied receiving the bill of costs. His only issue is when the service was done. It has already been proved that service was done via registered post on 7/3/2019.

18. The issue now becomes on which amount would the interest start running from and the interest rate; the bill which was drawn by the applicant amounting to Kshs. 571, 720. 20 or the taxed bill of Kshs. 170, 733/=.

19. I have considered the findings of courts of concurrent jurisdiction on the issue of interest. In the case of Kerongo & Company Advocates vs Africa Assurance Merchang Co Limited (2019) eKLR it was held:-“An advocate who does not provide proof that he had raised the issue of interest before the amount in the Bill of Costs has been paid or tendered in full will not be paid the interest chargeable under Rule 7 of the Advocates Remuneration order. As the Advocates herein had not demonstrated that they had raised the issue of interest as aforesaid, they could not therefore be awarded interest at fourteen (14%) per cent per annum. This court determined that the Advocates herein would be entitled to interest at court rates.”In Amondi & Co Advocates vs County Government of Kisumu (2021) eKLR the court held:-“Under the Advocates Act, the interest may be awarded from the expiration of one month from the date when the Bill was delivered by the Advocate to the Client...However, the Advocate is not entitled to interest from the date when he filed the Bill of Costs in Court. I so hold because the quantum sought in the Bill of Costs was much more than the sum which the learned Taxing Officer finally awarded. In my considered view, the Client became aware of the “Bill” on the date when the Ruling on Taxation was delivered. Rule 7 of the Advocates Remuneration Order appears to have been designed to allow a Client a period of 30 days from the date when the Advocate delivered his bill. In my considered opinion, justice would be served by allowing the Client 30 days from the date when the Ruling on Taxation was delivered. Accordingly, I order that Judgment be entered in favour of the Advocate/Applicant for the taxed costs, together with interest thereon at 14% per annum, from the expiration of 30 days from the date when the Ruling was delivered. In this instance I peg the 30 days on the date when the Ruling was delivered because the Client/Respondent was in Court when the Taxing Officer delivered the Ruling on Taxation. As the Client was present, it means that immediately after the Taxing Officer pronounced her decision, the Client became aware of the Bill that it had an obligation to settle.”

20. From the foregone, this court is of the view that the bill which the client should now settle is the taxed bill which was assessed on 27/2/2023 in the sum of Kshs. 170, 733/=. The respondent participated in the taxation proceedings. The parties were served with a notice from the court informing them of the ruling date but they did not attend. The respondent therefore got to know of the bill on 27/2/2023 and he was obliged to settle the same within 30 days. Accordingly, as per Rule 7 (supra) the interest on the bill is chargeable one month from the date of the bill. In this instance, interest started running at the rate of 14% from 27/3/2023.

21. On the issue of costs, I am persuaded by the decisions made in similar applications before courts of concurrent jurisdictions and the court proceeded to award costs. I therefore assess and award costs of this application to the applicant in the sum of Kshs. 30,000/= all inclusive. See the decisions in J.G. Kariuki t/a Gachiri Kariuki & Co. Advocates vs Invesco Assurance Co. Ltd (2019) e KLR and Margaret A. Asingo vs South Nyanza Sugar Co. Ltd (2019) eKLR.

22. In the end, the application succeeds partially and the following orders will issue: -1. The Certificate of Costs issued to the applicant, as against the respondent dated 22/3/2023 is hereby converted into a judgement and decree of this court and consequently, judgement is entered for the applicant against the respondent, for Kshs. 170,733/=.2. Interest on the sum of Kshs. 170,733/= do accrue at the rate of 14% with effect from 27/3/2023, until payment is made in full.3. Costs awarded to the applicant in the sum of Kshs. 30,000/=.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 9TH DAY OF NOVEMBER, 2023. R. WENDOHJUDGERuling delivered in the presence of;Ms. Achieng for the Applicant.Ms. Otieno for the Respondent.