https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4841

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT SIAYA COUNTY** **ELCL MISC. No. E025 OF 2025** **BETWEEN** **OLENDO ORARE & SAMBA ADVOCATES LLP...ADVOCATE/APPLICANT** **VERSUS** **COUNTY GOVERNMENT OF SIAYA……………...CLIENT/RESPONDENT** **RULING** 1 The subject of this ruling is the Notice of Motion Application dated 29th September 2025. The applicant seeks the following orders; - 1. THAT the Certificate of Taxation issued herein in respect of the taxation order made on 08.08.2025 for the sum of Kenya Shillings One Hundred and Ninety-Eight Million, Four Hundred and Seventy-Six Thousand, Nine Hundred and Fifty-Six Only (Kshs. 198,476, 956/=] be adopted as judgment and decree of this Honourable Court, together with interest thereon at 14% per annum from 21.03.2025, being one month from the date of presentation of the Applicant's demand to settle professional fees to the Respondent until payment in full. 2. THAT the costs of this application be borne by the Client/Respondent. 2 The application is premised upon the following grounds; - 1. The Applicant/Advocate was retained by the Respondent to represent it in SIAYA ELC No. E019 OF 2022 -JUSTUS OUMA OWINYO & 3 OTHERS -VS- NATIONAL LAND COMMISSION & 2 OTHERS, and indeed the Applicant represented Respondent. 2. There is no dispute of the fact that the Applicant was retained by the Respondent as aforementioned. 3. The Applicant's costs in this matter have already been taxed by the Court on 10.09.2025 at Kshs.198, 476,956/- and a certificate of taxation issued thereon. 4. The certificate of costs has neither been set aside nor altered by the court by way of review or any reference on taxation. 5. The Respondent has neither settled the said sum of Kshs.198, 476,956/ as taxed, nor paid any interest thereon which has accrued on the same. 6. The Applicant is entitled to interest on the amount of its costs and disbursements in the Certificate of Costs from 21.03.2025, being one month from the date of presentation of the Applicant's Bill of Costs seeking payment of the fees to the Respondent till payment in full in accordance with the provisions of Rule 7 of the Advocates (Remuneration) Rules. 7. The Applicant is entitled to the orders sought. 3 The application is also supported by the depositions in the supporting affidavit sworn by Raymond Olendo on 29/09/2025 an advocate of this court practicing as such in the name of Olendo, Orare & Samba Advocates LLP, the Applicant and who has the personal conduct of the matter. 4 It is deponed that pursuant to the Respondents instructions he represented the Respondent/Client's in ***SIAYA ELC No. E019 OF 2022 -JUSTUS OUMA OWINYO & 3 OTHERS -VS- NATIONAL LAND COMMISSION & 2 OTHERS.*** 5 The applicant avers that pursuant to the said instructions, the Applicant/Advocate represented the Respondent/Client's in the said matter yet the Respondent has since refused to pay the Applicant his professional fees despite enjoying the Applicant's professional services. That the Respondent/Client having failed to settle the Applicant's professional fees, the Applicant/Advocate applied for taxation of his costs in the instant cause and the said Costs were taxed and allowed on 08.08.2025, in the sum of Kshs. 198,476,956/= (Kenya Shillings One Hundred and Ninety-Eight Million, Four Hundred and Seventy-Six Thousand, Nine Hundred and Fifty-Six only) to be paid by the Respondent to the Applicant. A Copy of the certificate of Taxation is Annexed. 6 That the said certificate of costs issued has since not been altered or set aside by the Court. Further that the Applicant/Advocate is entitled to claim interest on costs and disbursements computed in the bill of costs at the rate of 14% per annum from 21.03.2025, being one month from the date of delivery of the Bill of Costs to the Respondent till payment in full as is contemplated in Rule 7 of the Amended Advocates Remuneration Rules. 7 That unless the Certificate of Costs herein is adopted as a judgment of this court as sought in the instant application, the Applicant cannot be able to enforce payment of the said unpaid outstanding interest on the principal sum due, which can only be enforced if there is a judgment and a decree on the certificate of costs as sought. **Replying Affidavit** 8 The Respondent in opposition to the application filed a replying affidavit sworn on 3/11/2025 by Joseph Omondi its Chief and accounting Officer stating that the application is premature, as there is a pending application/reference, being Misc. Application number E030 of 2025 between the same parties herein challenging the said taxation and/or certificate of costs, which has not yet been determined - a copy of the reference application is Annexed as J.O-1. 9 It is deponed that the Reference is in compliance with the law, seeking to set aside and/or vary the ruling of the Taxing Officer delivered on 8th August, 2025 and the same is pending before this Honourable Court. That until the said reference is heard and determined, the Certificate of Costs and, or taxation order is not final or conclusive, as it may be altered, varied, or set aside by the Court upon determination of the reference. 10 It is averred that it is settled law that a Certificate of Costs and, or a taxation order can only be converted into a decree after taxation has been finalized and is no longer under challenge. To proceed with the adoption while the reference is pending would prejudice the pending proceedings and render the reference nugatory. 11 That the Applicant's prayer to have the taxation order adopted as a judgment and decree at this stage amounts to an attempt to execute an amount which still is in dispute, contrary to the dictates of justice and fair procedure. 12 That is trite that a Certificate of Costs and, or taxation order only becomes a decree for purposes of execution once it is final and unchallenged, and that any pending reference stays the conversion process. That allowing the present application would defeat the purpose of the pending reference and expose the Respondent to unlawful execution on a sum that is still subject to the Court's determination. 13 The Applicant states that no prejudice will be occasioned to the Applicant if the present application is struck out, or in the alternative, held in abeyance pending the outcome of the reference, as the Certificate of Costs and, or taxation order remains valid and enforceable if upheld thereafter. 14 That conversely, granting the orders sought would occasion the Respondent great prejudice, as it would be compelled to pay or risk execution on a disputed and unfinalized amount. 15 The deponent urges the application be dismissed with costs, or in the alternative, stay the same pending determination of the reference. **SUBMISSIONS** **The Applicants Submission** 16 The Applicant filed submissions dated 9/12/2025. Counsel submitted that arising from section 51(2) of the Advocates Act the only instances where a court would be stopped from allowing the application are namely If the Certificate of costs is set aside or altered; If the retainer is disputed and probably if there is an order of stay of proceedings. That these reasons have not been shown. 17 Counsel asserts that there is no nexus between the present cause No. 25 of 2025 and Siaya High Court Misc Civil Application E30 of 2025 and the two are very different Causes of action. That the ruling on taxation of the Advocate Client Bill of Costs dated 12/3/2025 in cause 30 of 2025 and none is exhibited in the application in Cause 30 of 2025. The later does not seek stay of execution of the Certificate of costs or judgement or decree in Cause 20 of 2025 as it merely mentions ruling without a reference to the attendant cause and since parties are bound by their pleadings no such order can be granted at all from Cause No.30 of 2025 as prayed. 18 Counsel asserts that Cause No. 30 of 2025 is bad in law s it seeks the present court to seat as an appellate court on its own decision by a separate cause rather than by reference in the same cause as required by Paragraph 11(1) and (2) of the Advocates Remuneration Order. That the said cause cannot stand on its own. 19 Counsel adds that Cause No. 30 of 2025 cannot be a basis for opposing the present application. The Court is referred to ***Kemboy Law Advocates Formerly Trading as Kemboy & Co. Advocates Vs. Mruttu (2025) KEELC 6395 (KLR)*** where the court faced with similar situation as the present case struck out the reference filed by separate cause noting it was a jurisdictional issue as the same failed to properly invoke the jurisdiction of the court. The court reiterated that based on paragraph 11 the reference must be filed in the file wherein the taxation was carried out. 20 The court was urged to follow the path taken in ***Kemboy Law Advocates Formerly Trading as Kemboy & Co. Advocates Vs. Mruttu (supra)*** wherethe court noted that a certificate of the taxing officer has been issued and the same having not been set aside or altered by the court to find that the present application is merited. 21 It is urged therefore that consequently the application is unopposed and should be allowed on merit. **The Respondents Submissions** 22 The Responded filed submissions dated 17/4/2026 and identified one issue for determination, Whether the application dated 29/9/2025 is merited. 23 Counsel cited the provisions of section 51(2) of the Advocates Act and asserted that while this provision provides for adoption of certificate of taxation as a judgement of the court unless it is set aside or altered, the same is also conditional upon there being no any challenge on the Certificate of Taxation. That where a party has filed a reference under paragraph 11 of the Advocates Remuneration Order by filing a reference the Certificate of taxation is not final and cannot be enforced until the court determines the same. Reliance is placed in ***Lubulellah & Associates Advocates Vs. N.K. Brothers Ltd (2014) eKLR and Lensinko Njoroge & Gathogo Vs Invesco Assurance Company Ltd (2021) eKLR*.** 24 It is was submitted that it would be unjust for the court to enter judgement as sought in this case and subsequently vary in whichever way the decision of the taxing master at the instance of the respondent’s reference application which is pending judgement on 30/4/2026. That bearing in mind that the applicant’s application was pending judgement on 29/4/2026 a day before the judgement on the application for reference no prejudice would be suffered if the present application is either disallowed or held in abeyance pending the outcome of the reference application. **ANALYSIS AND DETERMINATION** 25 I have considered all the foregoing. The main issue for determination is whether the orders sought should be granted. 26 The application has been brought pursuant to the provisions of Section 51 of the Advocates Act Chapter 16 of the laws of Kenya (herein the Act) 27 The power of the Court to enter summary judgment based on a Certificate of Taxation is governed by Section 51(2) of the [*Advocates Act*](https://new.kenyalaw.org/akn/ke/act/1989/18), which provides: ***(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.*** 28 Arising from the provisions above three caveats are envisaged that would stop the court from entering judgement for the taxed amount. These are where the Certificate of the taxing officer is set aside or altered by the Court and where the retainer is not disputed. 29 The court will be guided accordingly. 30 I will first dispose of the issue of the retainer. This issue was explained in the case of ***Muriu Mungai & Co Advocates v Mbugua (Miscellaneous Civil Application 117 of 2019) [2026] KEHC 3528 (KLR) (Family)*** where the court observed as follows; - *‘****However, the jurisdiction to enter judgment under section 51(2) is subject to one critical caveat: it applies only in a case where the retainer is not disputed.’*** 31 The court in the above case further defined what constitute a retainer thus; - ‘***A retainer is the contract of employment between an Advocate and a client. Disputing the existence of the retainer means the client claims they never hired the Advocate, that the Advocate acted without instructions, or that there is no privity of contract. However, disputing the quantum of fees, questioning the quality of the work done, or alleging that the Advocate breached their fiduciary duties during the subsistence of the retainer, does not amount to a disputed retainer under the meaning of section 51(2).’*** 32 In the present case there is no contest as to whether the Applicant was retained by Respondent to represent it in Siaya ELC. No. E019 of 2022 Justus Ouma Owinyo & 3 Others Vs. National Land Commission & 2 Others. The services were also rendered and the Respondent has not denied it. Applying the guidance of the court above disputing the quantum does not make a disputed retainer within the meaning of section 51(2) of the Act. 33 The next caveat is where the Certificate of the taxing officer is set aside. The applicant produced as part of his evidence the Certificate of Taxation Taxation made on 08.08.2025. The same is for the sum of Kshs. 198,476, 956/=. It is not contested that the same has not been paid. The main charge raised by the Respondent against the adoption of the certificate of Taxation is a pending application/reference, being Misc. Application number E030 of 2025 between the same parties herein challenging the said taxation and/or certificate of costs, which has not yet been determined and which is alleged could alter the amount. 34 The question that I must determine is whether the respondent can challenge the certificate of taxation on the basis of a pending reference? 35 Before I delve further into consideration of the above question. This court on 29/4/2026 issued directions to the effect that ,the Notice of Motion Application dated 29/09/2025 shall be put in abeyance awaiting the outcome of Misc. E030 of 2025 and That the file shall be listed for Mention on 30/04/2026 alongside the file Misc. E030 of 2025. 36 And that is the most reasonable step the court thought it would take at the time. 37 Having noted the above however the court must draw guidance from the provisions of section 51(2) of the Advocate Act in determining the instant application which I have already rehashed hereinabove. 38 Firstly, the certificate of costs can be challenged if it has been set aside. This makes perfect sense for there would be nothing to adopt. The court has not been led to any evidence by the respondent of an order of the court setting aside the certificate of taxation. 39 The other instance envisaged by the above provisions is where the certificate of costs is altered by the court by way of review or any reference on taxation. My understanding of this provisions is that it envisages an outcome or determination of the said review or reference. In other words, the court sitting on review or on the reference will have rendered itself on the Certificate of costs by altering or making adjustment to the same. Therefore, the mere existence of a reference would not suffice for purposes of the provisions of section 51(2) and would render an application brought on this basis premature. 40 The above scenario is exactly what has happened in the instant matter. In its replying affidavit the respondent averred that they have filed a reference being Misc. Application number E030 of 2025 between the same parties herein challenging the said taxation and/or certificate of costs, which has not yet been determined. It is averred the same could alter the certificate of costs. This is only but anticipatory. 41It has been submitted that any pending reference stays the execution process to avoid allowing an unlawful execution. This court respectfully disagrees with this proposition for the reason execution is a different process from adoption of the certificate of costs. 42 I must however point that the fact that a court adopts the certificate of Taxation does not mean it agrees with it the same since it can still be set aside but through the separate process of review or reference. The adoption to me is an administrative process since execution cannot happen in the absence of a judgment and a decree on the certificate of costs as sought. The actual execution of the decree thereafter is a different process and cannot be challenged at this stage but only after the certificate has been adopted. 43 Moreover it is noteworthy that post the directions issued by the court, this court vide a ruling dated 8/05/2026 struck out the reference filed in Miscellaneous Misc. Application number E030 of 2025 for want of leave. 44 I have also read the decision in ***Lubulellah & Associates Advocates Vs. N.K. Brothers Ltd (2014) eKLR and Lensinko Njoroge & Gathogo Vs Invesco Assurance Company Ltd (2021) eKLR.*** however, based on the ruling by this court dated 8/05/2026 then the same would not be applicable in the present circumstances. 45 I think I have said enough why the application dated Application dated 29th September 2025 must be allowed. 46 As to costs it is trite that costs are governed under Section 27(1) of the Civil Procedure Act which I need not rehash. The import of the said provision is that, although the award of costs remains a matter within the discretion of the court, such discretion is guided by the established principle that the successful party in any suit or litigation should ordinarily be awarded for the costs incurred thereunder. Consequently, a departure from the general rule that costs follow the event must be justified by good and sufficient reasons. 47 Accordingly, having successfully prosecuted the application, the applicant is entitled to the costs thereof. **Disposition** 48 The application dated 29th September 2025 is hereby allowed as prayed as follows; - 1. THAT the Certificate of Taxation issued herein in respect of the taxation order made on 08.08.2025 for the sum of Kenya Shillings One Hundred and Ninety-Eight Million, Four Hundred and Seventy-Six Thousand, Nine Hundred and Fifty-Six Only (Kshs. 198,476, 956/=] be adopted as judgment and decree of this Honourable Court, together with interest thereon at 14% per annum from 21.03.2025, being one month from the date of presentation of the Applicant's demand to settle professional fees to the Respondent until payment in full. 2. THAT the costs of this application be borne by the Client/Respondent. Orders accordingly **Delivered** and **Dated** This **27th Day** of **July 2026** **HON. LADY JUSTICE A.E. DENA** **JUDGE** **27/07/2026** **Ruling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:** Mr. Olendo for the Applicant Mr Were for the Respondent Court Assistant: Abiud Wekesa