[2017] KEHC 8695 (KLR)
The court found that the retainer was not disputed and that the bill of costs had been taxed at Kshs.254,143, with a certificate of taxation issued. The certificate had not been set aside or altered, and the respondent had not provided sufficient grounds to challenge the applicant's entitlement to judgment for the...
Source-derived case information.
- Citation
- [2017] KEHC 8695 (KLR)
- Parties
- Applicant: Olando Udoto & Okello Advocate; Respondent: John Chomba t/a Range Merchant
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 156 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Advocate Remuneration, Taxation of Costs, Certificate of Taxation, Judgment Entry
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Olando Udoto & Okello Advocate
Applicant
John Chomba t/a Range Merchant
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether judgment should be entered for the applicant based on the certificate of taxation.
- 2 Whether the certificate of taxation is final and conclusive as to the amount due where retainer is not disputed.
- 3 Whether the respondent has any valid grounds to oppose entry of judgment for the taxed costs.
Ratio Decidendi
The court found that the retainer was not disputed and that the bill of costs had been taxed at Kshs.254,143, with a certificate of taxation issued. The certificate had not been set aside or altered, and the respondent had not provided sufficient grounds to challenge the applicant's entitlement to judgment for the taxed amount. Section 51(2) of the Advocates Act was applied, which provides that a certificate of taxation is final as to the amount unless set aside or altered, and judgment may be entered where retainer is not disputed. Accordingly, the court allowed the application and ordered judgment for the applicant for the certified sum with costs.
Court Disposition
application allowed
Orders
- Judgment is entered for the applicant for Kshs.254,143 together with interest at 14% per annum.
- The respondent shall pay the costs of the application.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HC. CIVIL MISC. APPL. NO. 156 OF 2014
OLANDO UDOTO & OKELLO ADVOCATE................APPLICANT
VERSUS
JOHN CHOMBA T/A RANGE MERCHANT.............RESPONDENT
RULING
1. The ruling dated 5th January, 2010 seeks orders that judgement be entered for the Applicant for Kshs.254,143/= together with interest at 14% per annum.
2. It is stated in the affidavit in support that the Applicant is an advocate of the High Court of Kenya. That on 10th February, 2012 the Applicant filed a memorandum of appearance and a statement of defence on behalf of the Respondent. That the Respondent subsequently terminated the Applicant’s services. The Applicant filed a bill of costs which was taxed and the certificate of costs for Kshs.254,143/= issued. That the said certificate of taxation has not been set aside or altered and there is no dispute on retainer
3. In opposition to the application, the Respondent filed the replying affidavit sworn on 20th January, 2016 and filed in court on 21st January, 2016. The Respondent denied that he was the defendant in HCCC 1323 of 2001. That HCCC 1323 of 2001 was filed by Ms C.N. Kihara & Co. Advocates on behalf of the Respondent. That HCCC 1323 of 2001 was dismissed on 26th February, 2010 and the Applicant was instructed to apply for the reinstatement of the suit as Mr. Kihara was unwell. That the agreed total fees was agreed at Kshs.28,000/=. That the firm of Ms C.N. Kihara & Co. Advocates is the one handling HCCC 1323 of 2001 on behalf of the Respondent. The Respondent further stated that he instructed the firm of M. K. Chebii & Co Advocates to apply for the setting aside of the ruling on taxation but although the application was prepared, it was not filed.
4. When the application come up for hearing on 21st November, 2016, the counsels for the respective parties opted to canvass the application by way of written submissions. The Applicant’s submissions dated 25th November, 2016 briefly reiterated the contents of their affidavit in support. It was stated that the Respondent has refused and/or declined to pay the taxed amount. The Respondent’s submissions dated 2nd February, 2016 dealt with the application dated 28th September, 2016. Although there is on record an application filed on 28th September, 2016, the said application is yet to be fixed for hearing.
5. The retainer is not denied. The bill of costs was taxed at Kshs.254,143/=. A certificate of taxation was issued and has not been set aside. Section 51(2) of the Advocates Act provides as follows:
“(2) 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.”
6. With the foregoing, the Application is allowed with costs.
Dated, signed and delivered at Nairobi this 30th day of March,2017
B. THURANIRA JADEN
JUDGE