[2018] KEHC 3001 (KLR)
Where a certificate of taxation has not been set aside or altered and there is no dispute as to retainer, the court is empowered to enter judgment for the taxed amount. The applicant demonstrated that the taxed costs remain unpaid and the respondent did not oppose the application. The law entitles the advocate to...
Source-derived case information.
- Citation
- [2018] KEHC 3001 (KLR)
- Parties
- Applicant: Onsongo & Company Advocates; Respondent: African Merchant Assurance Company Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 67 of 2017
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Judges
- TW Cherere
- Legal Topics
- Taxation of Costs, Advocate Remuneration, Certificate of Taxation, Interest on Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Onsongo & Company Advocates
Applicant
African Merchant Assurance Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the certificate of costs should be converted into a judgment and decree issued accordingly.
- 2 Whether interest at 14% per annum on taxed costs should be awarded from the appropriate date.
Ratio Decidendi
Where a certificate of taxation has not been set aside or altered and there is no dispute as to retainer, the court is empowered to enter judgment for the taxed amount. The applicant demonstrated that the taxed costs remain unpaid and the respondent did not oppose the application. The law entitles the advocate to interest at 14% per annum from 30 days after service of the bill. In the absence of evidence of service, the court used the date when the respondent's counsel entered appearance as the date of service. Accordingly, judgment is entered for the applicant for the taxed sum, with interest at 14% per annum from 15 July 2017 until payment in full, and costs of the application are also...
Court Disposition
application allowed
Orders
- Judgment entered for the advocate against the respondent for Kshs. 43,847.
- Interest shall accrue on the taxed costs at 14% per annum from 15.7.17 until payment in full.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. CIVIL APPLICATION NO 67 of 2017
ONSONGO & COMPANY ADVOCATES........................................APPLICANT/ADVOCATE
VERSUS
AFRICAN MERCHANT ASSURANCE COMPANY LIMITED.... RESPONDENT/CLIENT
JUDGMENT
1. By a notice of motion dated 22. 5.17, brought under Rule 13 of the Advocates Remuneration Order, 2009; the applicant prays for orders:-
a) THAT the certificate of costs dated arising out of the taxation be converted into a judgment and a decree be issued accordingly
b) THAT interest on taxed costs be awarded at 14% per annum
2. The motion is premised on the grounds on the body of the application and the supporting affidavit of Richard B.O.Onsongo, Advocate of the High Court of Kenya, sworn on 22nd May, 2017. He avers that on instructions from the client, he acted for the 2nd defendant in MIGORI SPMCC NO. 296 OF 2009 JAMES MOGOKO VERSUS MACHANA TIMOTHY & ANOTHER. He avers that the bill of costs in respect of services rendered was taxed for the sum of Kshs. 43,847/-and a certificate of taxation was issued for the said sum on 23rd July, 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 9. 10. 18, the respondent’s counsel submitted that the application was not opposed.
4. Section 51 of the Advocates 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. There is no 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. Rule 7 of the Advocates Remuneration Order provides that: -
“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 no evidence to show when the Bill of Costs was served. I will therefore apply 15th June, 2017 when the respondent’s counsel entered appearance as the date of service of the Bill. Thirty (30) days expired on 15th July, 2017.
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. 43,847/-
b) Interest shall accrue on the taxed costs at 14% per annum from 15. 7.17 until payment in full
c) The Advocate will also have the costs of this application.
DATED AND SIGNED IN KISUMU THIS 11th DAY OF October 2018
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
For the Applicant /Advocate - Ms Ayieta/Ms Onsongo
For the Respondent/Client- N/A