[2017] KEHC 3666 (KLR)
The court found that there was no dispute as to the retainer and the certificate of taxation had not been set aside or altered. In accordance with Section 51 of the Advocates Act and the cited case law, the court exercised its discretion to enter judgment for the applicant for the taxed costs. The court further held...
Source-derived case information.
- Citation
- [2017] KEHC 3666 (KLR)
- Parties
- Applicant: Otieno, Ragot & Company Advocates; Respondent: Kisumu Municipal Council
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 317 of 2015
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Judges
- TW Cherere
- Legal Topics
- Taxation of Costs, Certificate of Taxation, Interest on Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Otieno, Ragot & Company Advocates
Applicant
Kisumu Municipal Council
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the certificate of costs dated 20.2.17 should be adopted as a judgment and decree of the court.
- 2 Whether the applicant is entitled to interest at 14% per annum from 24.2.16 until payment in full.
- 3 Whether the applicant should be awarded the costs of the application.
Ratio Decidendi
The court found that there was no dispute as to the retainer and the certificate of taxation had not been set aside or altered. In accordance with Section 51 of the Advocates Act and the cited case law, the court exercised its discretion to enter judgment for the applicant for the taxed costs. The court further held that interest at 14% per annum was applicable from 30 days after delivery of the bill to the client, as provided by Rule 7 of the Advocates Remuneration Order, and that the applicant was entitled to the costs of the application. The absence of opposition from the respondent reinforced the applicant's entitlement to the orders sought.
Court Disposition
application allowed
Orders
- Judgment is entered for the advocate against the respondent for Kshs. 234,892.46.
- Interest shall accrue on the taxed costs at 14% per annum from 24.2.16 until payment in full.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. CIVIL APPLICATION NO 317 OF 2015
OTIENO, RAGOT & COMPANY ADVOCATES……......………..APPLICANT
VERSUS
KISUMU MUNICIPAL COUNCIL…...........................................RESPONDENT
JUDGMENT
By a notice of motion dated 3. 3.17, brought under Section 51 of the Advocates Act Cap 16 Laws of Kenya; the applicant prays for orders:-
a. THAT the certificate of costs dated 20. 2.17 in respect of the order made on 20. 2.17 for the sum of Kshs. 234,892. 46 be adopted as judgment and decree of this Honourable Court
b. THAT the applicant be awarded interest accrued on the costs at 14% per annum from 9. 7.12 until payment in full
c. THAT the costs of this application be borne by client/respondent
The motion is premised on the grounds on the body of the application and the supporting affidavit of David Otieno, Advocate of the High Court of Kenya, sworn on 3. 3.17. He avers that the client instructed the advocate to act for it in Kisumu Misc. Application No. 14 of 2010. That the bill of costs was taxed on 20. 2.17 for the sum of Kshs. 234,892. 46 and a certificate of taxation was issued for the said sum. That the client has not paid the said amount and the applicant requests for judgment for the entire sum.
When the application came for hearing on 26. 7.17, Mr. Osodo appeared for the applicant. Mr. Emukule appeared for Mr. Rodi for the respondent. No response had been filed and the application is therefore not opposed.
In the case of Musyoka & Wambua Advocates Vs Rustam Hira Advocate (2006) eKLR it was held: -
“Section 51 of the 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......
In the present case, there is no allegation that the Advocate had no instructions to act for the client in Kisumu Misc. Application No. 14 of 2010 for which costs were taxed and so, there is not, and there cannot be, a 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.
I have considered the provisions of Rule 7 of the Advocates Remuneration Order which provides: -
“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.”
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 evidence that the bill of costs was received by the respondent on 25. 1.16 and thirty (30) days from the delivery of the bill to the client expired on 24. 2.16.
The upshot of this is that the notice of motion dated 3. 3.17 succeeds and is allowed in the following terms:
a)Judgment is hereby entered for the advocate against the Respondent for Kshs. 234,892. 46
b) Interest shall accrue on the taxed costs at 14% per annum from 24. 2.16 until payment in full
c) The Advocate will also have the costs of this application.
DATED AND DELIVERED ON THIS27thDAY OF July 2017
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
Applicant - Mr Amule/Mr Osodo
Respondent - N/A