[2009] KEHC 3108 (KLR)
The court held that since the advocate's bill of costs was taxed and certified, and there was no challenge to the certificate nor any dispute as to retainer, the certificate of costs is final as to the amount. The respondent's demand for accounts does not affect the finality of the taxed costs under Section 51(2) of...
Source-derived case information.
- Citation
- [2009] KEHC 3108 (KLR)
- Parties
- Applicant: Otieno Oyogo & Company Advocates; Respondent: Gulf Lubricants
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 3 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
- Outcome
- judgment entered for applicant advocate for the certified taxed costs, with costs
- Legal Topics
- Taxation of Costs, Advocate Remuneration, Certificate of Costs, Retainer Agreement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Otieno Oyogo & Company Advocates
Applicant
Gulf Lubricants
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
Legal Issues
- 1 Whether the certificate of costs should be adopted as a judgment and decree in favour of the applicant advocate.
- 2 Whether the respondent's demand for accounts affects the finality of the taxed costs.
Ratio Decidendi
The court held that since the advocate's bill of costs was taxed and certified, and there was no challenge to the certificate nor any dispute as to retainer, the certificate of costs is final as to the amount. The respondent's demand for accounts does not affect the finality of the taxed costs under Section 51(2) of the Advocates Act. Any issues regarding accounts between the parties are the subject of a separate pending suit (HCCC 2/08) and do not preclude entry of judgment for the certified costs in this matter. Accordingly, judgment is entered for the applicant in the sum certified, with costs.
Court Disposition
judgment entered for applicant advocate for the certified taxed costs, with costs
Orders
- Judgment is entered in favour of the applicant for the sum certified in the certificate of costs, with costs.
- Any dispute regarding accounts is to be addressed in HCCC 2/08.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
MISCELLANEOUS APPLICATION 3 OF 2008
OTIENO OYOGO & COMPANY ADVOCATES...........APPLICANTS
VERSUS
GULF LUBRICANTS...........................................RESPONDENTS
CORAM
J. W. MWERA J.
PJO OTIENO FOR THE PLAINTIFF
KIMANGA FOR THE DEFENDANT
COURT CLERK DIANGA – INTERPRETER/ENGLISH/SWAHILI/LUO
R U L I N G
The advocate/applicant in the notice of motion dated 18th November 2008 had this prayer under section 51(2), Advocate Act.
(1)The certificate of costs herein be made a decree and judgmentbe entered in terms of thecertificate of costs;
The affidavit supporting the motion stated that on 18th September 2008 the advocate’s bill was taxed at shs.758,597/=. It has never been challenged – hence the prayer. Mr. P. J. O. Otieno swore a supporting affidavit and argued the motion.
A supplementary affidavit sworn on 6th March 2009 alluded to circumstances where Mr. P. J. O. Otieno added that there were transactions/activities that concerned him as a director of the respondent company. The company had instructed Mr. Odhiambo Owiti Advocate to act for it in some matters. The applicant firm in other matters/cases had instructions and acted, whereupon the bill of costs was taxed as said above. And that where Mr. Otieno received money as a director of the respondent company, Kisumu HCCC 2/08 was pending to take accounts. Accordingly this counsel did not see why Mr. Kimanga for the respondent was insisting that accounts be taken first before the order the applicant firm seeks. The respondent claimed that it had paid so much money, over shs.2 million, to the applicant firm and with accounts being taken first, quite probably there would be a balance due from the applicant after its taxed costs have been deducted. Mr. Kimanga insisted on this point adding that payments to Mr. P. J. Otieno, even as a director of the respondent company, involved correspondence on the applicant’s letter heads and not Mr. Otieno as a director. There was argument as to whether some shs.90,000/= paid to the applicant firm was accounted for by that firm, satisfactorily. Mr. Otieno put forth payment vouchers to show that that sum was accounted for. At the end of the day it was conceded that there was no dispute as to retainer between the applicant firm and the respondent company. Instructions were given and work was done, all which gave rise to the costs in question being taxed and certifie
Section 51(2), Advocates Act, under which this application was brought reads:
“51. (1)……………
(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 theamount of the costs covered thereby,and the Court may make such orderin relation thereto as it thinks fit,including, in a case where the retaineris not disputed, an order that judgmentbe entered for the sum certified to bedue with costs.”
In the present case the costs were taxed and certified. There has been no challenge thereof at all. The sum taxed is thus final. Retainer is not denied. Accordingly it is ordered that judgment is hereby entered in the sum certified, with costs. If parties are feuding about accounts of any other kind, this is said to the subject in HCCC 2/08 pending.
Orders accordingly.
Delivered on 24th June 2009.
J. W MWERA
J U D G E
JWM/mk.