[2022] KEHC 442 (KLR)

Okong’o Wandago & Company Advocates v Dande (Miscellaneous Civil Application 75 of 2019) [2022] KEHC 442 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 442 (KLR)

Republic of Kenya

In the High Court at Migori

Miscellaneous Civil Application 75 of 2019

RPV Wendoh, J

May 12, 2022

IN THE MATTER OF THE ADVOCATES ACT & THE ADVOCATES REMUNERATION (AMENDMENT) ORDER, 2014 AND IN THE MATTER OF RECOVERY OF TAXED COSTS AS BETWEEN ADVOCATES & CLIENTS

Between

Okong’o Wandago & Company Advocates

Applicant

and

Dorine Dande

Respondent

Ruling

1. This ruling relates to the Notice of Motion Application dated 9/4/2021, brought under the provisions of Section 51 (2) of the Advocates Act, Cap 16 and Paragraphs 4 & 7 of the Advocates Remuneration (Amendment) Order, 2014.

2. The applicant, Okong’o Wandago & Company Advocates, is seeking the following orders: -i. The court be pleased to order that the Certificate of Costs issued to the Applicant, as against the Respondent, be converted into a judgement and decree of this court and consequently, a judgement be entered for the applicant against the Respondent, for Kshs. 599,805/=.ii. Interest does accrue on the sum of Kshs. 599,805/=, at the rate of 14% per annum, with effect from 14/4/2020, until payment shall be made in full, as prescribed in paragraph 7 of the Advocates Remuneration Order.iii. The costs of this application be awarded to the Advocates/Applicant.iv. The court be pleased to tax and determine the costs of this application.

3. The application is based on grounds appearing on the face thereof and is supported by the Affidavit of Marvin Odero, an Associate in the Applicant’s law firm. He deposed that the respondent retained the applicant’s law firm to act for them and to defend their interest in Kisumu Court of Appeal Election Petition Appeal No. 35 of 2018 - Mogesi Agnes Bange & 9 others v Independent Electoral and Boundaries Commission & 12 others. There is no dispute on the issue of retainer and advocate - client relationship.

4. The parties could not agree on the legal fees due and the applicant filed a bill of costs which has already been taxed and certified in the sum of Kshs. 599,805/= and a certificate of costs issued. (Annexed and marked as MO-1).

5. The respondent has refused, ignored and/or neglected to settle and/or make full payment of the applicant’s fees as taxed despite service. On 14/4/2020, the respondent was informed via email of the taxed costs (Annexed and marked as MO-2).

6. The applicant deponed that the respondent has been in receipt of their letter dated 8/4/2020 requiring her to pay the taxed costs since 14/4/2020 but she has declined to settle the same. The applicant is entitled to be paid interest after the expiry of 30 days. The applicant further deponed that they are also entitled to costs of this motion which should be fixed by this court.

7. The applicant also filed submissions dated 2/12/2021 which I have duly considered.

8. 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.

9. 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.

10. I have considered the application, its supporting affidavit and the annexures thereto. The respondent is represented by the firm of Kerario Marwa & Co. Advocates. There are several affidavits of service sworn by one Peter Ochara Anam confirming service of this application to the firm representing the respondent but the counsel has never appeared to defend this application. At the same time, the respondent has been served directly via her email dandeforeen1961@gmail.com. The service has not been contested.

11. By a ruling dated 8/7/2021, this court held that the bill of costs remained undefended since the respondent was given an opportunity to defend the bill of costs but she did not. The taxing master issued a certificate of costs dated 5/6/2020 which remains unchallenged. The proceedings as a whole, were unopposed. I therefore enter judgment and decree in favour of the applicant as per the certificate of costs dated 5/6/2020.

12. The applicant deponed that on 14/4/2020 he notified the respondent that the costs had been taxed at 599,805/= and asked her to settle the bill. The email of 14/4/2020 was in fact requesting the respondent to settle a fee note of Kshs. 1,581,496. 67/=. The bill is dated 3/12/2019. The affidavit of service dated 17/2/2020 by Peter Anam, states that he visited the home of the respondent on 10/2/2020 and personally served her.

13. As provided for under Paragraph 7 of the Advocates Remuneration Order, I find that the interest rate of 14% per annum is payable from 17/3/2020 being 30 days from the date which the Bill of Costs was served upon and received by the respondent. Therefore, the applicant is entitled to interest on the taxed amount at the rate of 14% per annum from 17/3/2020 being 30 days from the service of the bill of costs. I assess and award costs at Kshs. 30,000/= all-inclusive to the applicant.This being the lead file, there are 2 other files with the same parties being Miscellaneous 76 of 2019 and Miscellaneous 77 of 2019. In both applications, the bill of cost, certificate of costs and the application dated 9/4/2021 were unopposed.

14. I make the following orders: -1. The Certificate of Costs issued to the applicant, as against the respondent dated 5/6/2020 in Miscellaneous Application No. 75 of 2019 is hereby converted into a judgement and decree of this court and consequently, judgement is entered for the applicant against the respondent, for Kshs. 599, 805/=. Interest on the sum of Kshs. 599,805/=, do accrue at the rate of 14% per annum, with effect from 17/3/2020 until payment shall be made in full. Costs are awarded in the sum of Kshs. 30,000/=.2. The Certificate of Costs issued to the applicant, as against the respondent dated 5/6/2020 in Miscellaneous Application No. 76 of 2019 is hereby converted into a judgement and decree of this court and consequently, judgement is entered for the applicant against the respondent, for Kshs. 187,790/=. Interest on the sum of Kshs. 187,790/=, do accrue at the rate of 14% per annum, with effect from 9/1/2020 until payment shall be made in full. Costs are awarded in the sum of Kshs. 10,000/=.3. The Certificate of Costs issued to the applicant, as against the respondent dated 5/6/2020 in Miscellaneous Application No. 77 of 2019 is hereby converted into a judgement and decree of this court and consequently, judgement is entered for the applicant against the respondent, for Kshs. 793,790/=. Interest on the sum of Kshs. 793,790/=, do accrue at the rate of 14% per annum, with effect from 9/1/2020 until payment shall be made in full. Costs are awarded in the sum of Kshs. 35,000/=.DATED, DELIVERED AND SIGNED AT MIGORI THIS 12TH DAY OF MAY, 2022. R. WENDOHJUDGERuling delivered in the presence ofMr. Odero for the Applicant.No appearance for the Respondent.Nyauke Court Assistant.