[2022] KEHC 450 (KLR)

Okong'o Wandago & Company Advocates v South Nyanza Sugar Company Limited (Miscellaneous Civil Application E013A of 2021) [2022] KEHC 450 (KLR) (9 May 2022) (Judgment)

Neutral citation: [2022] KEHC 450 (KLR)

Republic of Kenya

In the High Court at Migori

Miscellaneous Civil Application E013A of 2021

RPV Wendoh, J

May 9, 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 ADVOCATES & CLIENTS

Between

Okong'o Wandago & Company Advocates

Applicant

and

South Nyanza Sugar Company Limited

Respondent

Judgment

1. This ruling relates to the Notice of Motion dated 18/11/2021, 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.Spent.ii.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. 1,386,548. 50=.iii.Interest does accrue on the sum of Kshs. 1,386,548. 50=, at the rate of 14% per annum, with effect from 5/6/2018, until payment shall be made in full, as prescribed in paragraph 7 of the Advocates Remuneration Order.iv.Costs of this application be awarded to the Advocates/Applicant and the same be fixed and determined by this court.

3. The application is based on grounds appearing on the face thereof and is supported by the Supporting 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 Migori Chief Magistrate’s Court Civil Suit No. 54 of 2015 (formerly Kisii HCC NO. 96 of 2005). There is no dispute on the issue of retainer and advocate - client relationship. Subsequently, the applicant issued and served the respondent with an itemized fee - note dated 21/8/2017 on 4/5/2018 (MOO-1).

4. Due to the failure of the respondent to honor the fee - note, the applicant filed and served the respondent with a bill of costs dated 30/3/2021. The respondent was served with a notice of taxation in these proceedings and the said bill of costs was taxed and certified pursuant to the provisions of paragraph 13 of the Advocates Remuneration Order in the amount now sought to be converted into a judgement. A Certificate of Costs dated 19/8/2021 was then issued (MOO-2).

5. The applicant deponed that he is entitled to charge interest on the taxed and certified costs from 5/6/2018, the date of the bill of costs, as interest prior to the said date were claimed as an item before the Taxing Officer; as an Item under paragraph 7 of the Advocates Remuneration Order, and which the client neglected to pay.

6. 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.

7. 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.

8. I have considered the application, its supporting affidavit and the annexures thereto. It is evident that the respondent was served with a fee note which it failed to settle. The bill of costs was served upon the respondent on 15/4/2021 via the email address of the Legal Service Manager/Ag. Company Secretary of the respondent. There is an affidavit of service dated 12/5/2021 sworn by Marvin Odero - Advocate confirming this fact. The respondent was also served with a taxation notice which it failed to defend. There is also a Certificate of Costs dated 19/8/2021 of Kshs. 1,386,548. 50= which has not been challenged by the respondent. The proceedings were unopposed.

9. As provided for under Paragraph 7 of the Advocates Remuneration Order, I find that the interest rate of 14% per annum is payable from 15/5/2021 being 30 days from the date on 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 15/5/2021 being 30 days from the service of the bill of costs.

10. On the issue of costs, I assess the costs at Kshs. 30,000/= all inclusive.

11. I find that the application has merit and make the following orders: -1. The Certificate of Costs issued to the applicant, as against the respondent dated 19/8/2021 is hereby converted into a judgement and decree of this court and consequently, a judgement is entered for the applicant against the respondent, for Kshs. 1,386,548. 50=.2. Interest on the sum of Kshs. 1,386,548. 50=, do accrue at the rate of 14% per annum, with effect from 15/5/2021, until payment shall be made in full.3. Costs of Kshs. 30,000/= awarded to the applicant.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 9THDAY OF MAY, 2022. R. WENDOHJUDGERuling delivered in the presence ofMr. Odero for the Applicant.No appearance for the Respondent.Nyauke Court Assistant.