[2018] KEHC 3018 (KLR)
The court found that the applicant had acted for the respondent on instructions, the bill of costs was taxed and a certificate of taxation issued, and there was no dispute as to retainer. The certificate of taxation had not been set aside or altered. In accordance with Section 51(2) of the Advocates Act and the...
Source-derived case information.
- Citation
- [2018] KEHC 3018 (KLR)
- Parties
- Applicant: Okong’o Wandago & Company Advocates; Respondent: Invesco Assurance Company Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 114 of 2018
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Judges
- TW Cherere
- Legal Topics
- Advocate Remuneration, Taxation of Costs, Certificate of Taxation, Interest on Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Okong’o Wandago & Company Advocates
Applicant
Invesco Assurance Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the certificate of costs issued in favour of the applicant should be deemed as a judgment of the court.
- 2 Whether the applicant is entitled to interest at 14% per annum from the expiration of one month after delivery of the bill of costs to the client.
- 3 Whether the applicant is entitled to the costs of the application.
Ratio Decidendi
The court found that the applicant had acted for the respondent on instructions, the bill of costs was taxed and a certificate of taxation issued, and there was no dispute as to retainer. The certificate of taxation had not been set aside or altered. In accordance with Section 51(2) of the Advocates Act and the cited case law, the court held that judgment could be entered on the certificate of taxation. Further, under Rule 7 of the Advocates Remuneration Order, the applicant was entitled to interest at 14% per annum from 30 days after delivery of the bill of costs, as the claim for interest was raised before payment and the bill was served on 6th July 2018. The application was unopposed,...
Court Disposition
application allowed
Orders
- Judgment is entered for the advocate against the respondent for Kshs. 164,231.
- Interest shall accrue on the taxed costs at 14% per annum from 6th August 2018 until payment in full.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
MISC. CIVIL APPLICATION NO 114 OF 2018
OKONG’O WANDAGO & COMPANY ADVOCATES.....APPLICANT/ADVOCATE
VERSUS
INVESCO ASSURANCE COMPANY LIMITED...................RESPONDENT/CLIENT
JUDGMENT
1. By a notice of motion dated 8. 8.18, brought under Section 51 (2)of the Advocates Act Cap 16 Laws of Kenya and Paragraph 7 of the Advocates Remuneration (Amendment) Order, 2014; the applicant prays for orders:-
a. THAT the certificate of costs dated 26. 7.18 between the parties hereto be deemed as the judgment of this Court
b. Judgment be entered for the applicant for Kshs. 164,231/- as stated in the Certificate of Costs
c. Applicant be awarded interest accrued on the costs at 14% p.a from 13th March, 2018 until payment in full
d. THAT the costs of this application be borne by the client/respondent
2. The motion is premised on the grounds on the body of the application and the supporting affidavit of Kennedy Okong’o, Advocate of the High Court of Kenya, sworn on 8th August, 2018. He avers that on instructions from the client contained in the letter of instructions marked KO-1, he acted for defendant in KISUMU RMCC NO. 162 OF 2016 LIVINGSTONE ANDATI MILIMU V BERNARD OTIENO & KULUNDU MOSES. He avers that the bill of costs in respect of services rendered was taxed for the sum of Kshs. 164,231and a certificate of taxation was issued for the said sum on 6th August, 2018. He further avers that the client has not paid the said amount and the applicant requests for judgment for the entire sum.
3. When the application came for hearing on 3. 10. 18, the respondent, though served on 15. 8.18, did not send a representative. The application is therefore not opposed.
4. In the case of Musyoka&Wambua Advocates VsRustamHira Advocate (2006)eKLRit was held: -
“Section 51 of the Act makes general provisions as to taxation, as the marginal note indicates. One of those provisions is that the court has discretion to enter judgment on a Certificate of Taxation which has not been set aside or altered, where there is no dispute as to retainer. This in my view is a mode of recovery of taxed costs provided by law, in addition to filing of suit......
5. In the present case, there is no allegation that the Advocate had no instructions to act for the clientKISUMU RMCC NO. 162 OF 2016 LIVINGSTONE ANDATI MILIMU V BERNARD OTIENO & KULUNDU MOSESforwhich costs were taxed and so, there cannot be, a dispute as to retainer. As it stands now the Certificate of Taxation has not been set aside or altered. In the circumstances, I see no reason to deny the Advocate, judgment as sought.
6. I have considered the provisions of Rule 7 of the Advocates Remuneration Order which provides: -
“An advocate may charge interest at 14% 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, providing such claim for interest is raised before the amount of the bill has been paid or tendered in full.”
7. The rate of interest awardable is 14% per annum applicable from 30 days after the date of service of either the Bill of Costs. There is evidence that the bill of costs was received by the respondent on 6th July, 2018 and thirty (30) days from the delivery of the bill to the client expired on6th August, 2018.
8. The upshot of this is that the notice of motion dated 8. 8.18 succeeds and is allowed in the following terms:
a. Judgment is hereby entered for the advocate against the Respondent for Kshs. 164,231
b. Interest shall accrue on the taxed costs at 14% per annum from 6. 8.18until payment in full
c. The Advocate will also have the costs of this application.
DATED AND SIGNED IN KISUMU THIS 4thDAY OF October, 2018
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
For the Applicant /Advocate - N/A
For the Respondent/Client - N/A