https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11062

Omuma Advocates LLP v Falcon Signs Ltd (Commercial Miscellaneous Application E903 of 2023) [2026] KEHC 11062 (KLR) (Commercial and Tax) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 11062 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Miscellaneous Application E903 of 2023 MN Mwangi, J June 26, 2026 Between Omuma Advocates LLP Applicant and Falcon Signs Limited Respondent Ruling 1.The applicant filed a Notice of Motion application dated 29th July 2024 pursuant to Order 51 Rule 1 of the Civil Procedure Rules, Section 51 (2) of the Advocates Act, and Sections 1A,1B and 3A of the Civil Procedure Act. The applicant prays for orders that Judgment be entered in favour of the applicant against the respondent in the sum of Kshs.295,808.00 with interest at 14% p.a., from 9th July 2024 until payment in full. The applicant also prays for costs of the application. 2.The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on 29th July 2024 by Mr, Mark Omuga, an Advocate working in the law firm of the applicant herein. Mr. Omuga deposed that a Ruling on the applicant’s bill costs was delivered on 9th July 2024 and a Certificate of Taxation was issued in the sum of Kshs.295,808.00. He stated that no Notice of Objection had been filed and as such, the Ruling of the Taxing Master has not been stayed or set aside, but the respondent has not paid the taxed costs. He urged this Court to allow the application for entry of judgment on the said costs. 3.In opposition to the application, the respondent filed a replying affidavit sworn on 19th November 2025 by its Director, Heena Magdani. She stated that the applicant has filed this application, yet the respondent has filed a Reference/objection to the taxation in compliance with Paragraph 11 of the Advocates Remuneration Order, which automatically suspends conclusiveness of the Certificate of Taxation, pending the Court’s determination. She stated that the respondent had paid an advance of Kshs.75,000/= on 10th July 2019, which has never been disputed. She faulted the Taxing Master for failing to take note of the payment in the final taxation, which shows that she failed to exercise discretion, to consider applicable principles on complexity of the issues, value of the subject matter, nature of the work done and reasonableness of the fees. 4.Ms Magdani contended that the Taxing Master taxed the amount at Kshs. 295,808.00 less Kshs.2,000/= of the amount in the bill of costs, which shows that the Taxing Master did not interrogate the bill of costs independently. She contended that since there is a Reference filed by the respondent, the instant application should be dismissed as it may lead to premature execution. 5.The application was canvassed by way of written submissions. The applicant’s submissions dated 20th November 2025 were filed by the law firm of Omuma Advocates LLP whereas the respondent’s submissions dated 20th January 2026 were filed by the law firm of Macharia, Gaitho & Murigu Advocates LLP. 6.Mr. Omuga, learned Counsel for the applicant submitted that the Certificate of Taxation is final and unchallenged. He refuted the assertion made by the respondent in its replying affidavit that there is a Reference on record and stated that this Court had in a Ruling delivered on 24th October 2025, struck it out. He submitted that there is no pending application seeking to set aside the Certificate of Taxation and urged this Court to enter Judgment as per the Certificate of Taxation. He cited the case of Lubulellah & Associates Advocates v N.K. Brothers Limited [2014] eKLR and National Bank of Kenya Limited v Rachuonyo & Rachuonyo Advocates [2021] KEHC 6582 (KLR) to support his submissions. 7.Mr. Omuga contended that the respondent cannot re-litigate the merits of the taxation since the Reference it had filed was struck out, and it cannot convert the replying affidavit into an appeal. He argued that this Court cannot sit as an appellate Court under Section 51(2) of the Advocates Act, apart from instances where there is a valid Reference. On the issue of interest, Counsel relied on Rule 7 of the Advocates (Remuneration Order), which permits an Advocate to charge interest at14% per annum one month from the date of delivery of the bill of costs to the client. He stated that in the Affidavit of Service sworn on 4th March 2024 by himself, it shows that the respondent was served on 1st March 2024 and the month’s timeframe lapsed on 1st April 2024. He urged this Court to enter Judgment in favour of the applicant in the sum of Kshs.295,808.00, with interest at 14% per annum from 1st April 2024 and costs of the application. 8.Mr. Macharia, learned counsel for the respondent, submitted that in order for a Court to enter judgment under Section 51(2) of the Advocates Act, the amount must be true and owing. He stated that the respondent paid a sum of Kshs.75,000/= on 10th July 2019, which the applicant did not dispute. He stated that amounts to unjust enrichment and relied on the case of Lubulellah & Associates Advocates v N.K. Brothers Limited (supra). 9.He submitted that the Reference was struck out on a technicality but it does not cure a fundamental factual error on the amount certified. He cited Section 51(2) of the Advocates Act which states that ‘the Court may make such order in relation thereto as it thinks fit.’ He urged this Court to exercise its discretion and order a deduction of Kshs.75,000/= from the amount in the Certificate of Taxtion. 10.On the issue of interest, Counsel cited the case of Lubulellah & Associates Advocates v N.K. Brothers Limited (supra) and stated that where the Advocate does not prove the requirements of Rule 7 of the Advocates Remuneration Order, the Court may award interest at 12% and not 14%. He argued that in this case, interest should only accrue to the amount Magdani axed, less the Kshs.75,000/= paid. He urged this Court to dismiss the application or in the alternative allow it less the sum of Kshs.75,000/=. He urged the Court to order interest at Court rates from the date of judgment. Analysis And Determination 11.I have considered the instant application, the grounds on the face of it and the affidavit in support thereof. I have also considered the replying affidavit and supplementary affidavit, as well as the written submissions by Counsel for the parties. The issue that arises for determination is whether the Court should enter judgment on the Certificate of Taxation and the interest payable. 12.This application is anchored on Section 51 of the Advocates Act, Cap. 16 of the Laws of Kenya, which states that-(51)“General provisions as to taxation1)Every application for an order for the taxation of an advocate’s bill or for the delivery of such a bill and the delivering up of any deeds, documents and papers by an advocate shall be made in the matter of that advocate.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. 13.A Court can only enter judgment as per a Certificate of Taxation where there is no Reference filed seeking to set it aside. See the case of Lubulellah & Associates, Advocates –vs- N. K. Brothers Limited (supra), where it was stated that-“The law is very clear that once a Taxing Master has taxed the costs, issued a Certificate of Costs and there is no reference against his Ruling or there has been a Ruling and a determination made and not set aside and/or altered, no other action would be required from the Court save to enter Judgment. An Applicant is not required to file suit for the recovery of costs. The Certificate of Costs is final as to the amounts of the costs and the Court would be quite in order to enter Judgment in favour of the Applicant against the Respondent herein for the taxed sum indicated in the Certificate of Taxation that was issued on 25th November 2012”. 14.The respondent in its replying affidavit stated that the application is premature since there is a Reference on record. This delivered a Ruling on 24th October 2025 and struck out the said Reference. As it stands there is no Reference on record or an application seeking to set aside the Certificate of Taxation. Nothing stopped the respondent from filing a Notice of Objection and a fresh Reference after the earlier Reference was struck out on a technicality. 15.The respondent has also claimed that the Taxing Master did not exercise her discretion and that she applied wrong principles of law in taxing the bill of costs by deducting only Kshs.2,000/= and for not taking into account the sum of Kshs.75,000/=, which had been paid. This Court finds that by making the said contention, the respondent is invoking this Court’s appellate jurisdiction, by requesting it to delve into the merits of the taxation, which it cannot do, as what is before me is not a Reference. This Court therefore proceeds to allow the application and hereby enters judgment on the Certificate of Taxation. What rate of interest is payable? 16.Rule 7 of the Advocates Remuneration Order provides as follows:-“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.” 17.A reading of the above provisions, shows that interest is payable one month from the date of service of a bill of costs. This Court notes the Affidavit of Service by Mark Omuga Advocate confirms service of the bill of costs, which then confirms that interest is payable at 14% per annum. 18.The upshot is that the application has merits. It is allowed in the following terms-i.That Judgment is hereby entered in favour of the applicant as against the respondent for the sum of Kenya Shillings Two Hundred and Ninety Five Thousand, Eight Hundred and Eight (Kshs.295,808.00);ii.A decree shall issue for the sum of Kenya Shillings Two Hundred and Ninety Five Thousand, Eight Hundred and Eight (Kshs. 295,808.00; andiii.Interest is awarded at the rate of 14% per annum, from 1st April 2024 until payment in full.It is so ordered. DATED, SIGNED AND DELIVERED AT KIAMBU ON THIS 26TH DAY OF JUNE, 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Mr. Omuga for the Advocate/applicantMs Nyamwaro h/b for Mr. Macharia for the respondentMs Julia – Court Assistant.