[2019] KEHC 4910 (KLR)
The court found that the certificate of taxation issued to the applicant had not been set aside or altered and that there was no dispute as to retainer, as the respondent did not contest the application or allege lack of instructions. The court applied Section 51(2) of the Advocates Act, which allows entry of...
Source-derived case information.
- Citation
- [2019] KEHC 4910 (KLR)
- Parties
- Applicant: Otieno Yogo & Company Advocates; Respondent: National Irrigation Board
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 49 of 2019
- 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 Yogo & Company Advocates
Applicant
National Irrigation Board
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the applicant is entitled to judgment on the certificate of taxation under Section 51(2) of the Advocates Act.
- 2 Whether interest at 14% per annum is payable on the taxed costs from the appropriate date.
- 3 Whether there is any dispute as to retainer or any ground to deny entry of judgment.
Ratio Decidendi
The court found that the certificate of taxation issued to the applicant had not been set aside or altered and that there was no dispute as to retainer, as the respondent did not contest the application or allege lack of instructions. The court applied Section 51(2) of the Advocates Act, which allows entry of judgment on an unchallenged certificate of taxation, and Rule 7 of the Advocates Remuneration Order, which entitles the advocate to interest at 14% per annum from 30 days after delivery of the bill. Since the bill was delivered on 3rd May, 2019, interest accrues from 3rd June, 2019. The court therefore entered judgment for the applicant for the taxed amount, with interest and costs...
Court Disposition
application allowed
Orders
- Judgment is entered for the advocate against the respondent for Kshs. 78,175/-.
- Interest shall accrue on the taxed costs at 14% per annum from 3rd June, 2019 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 49 OF 2019
OTIENO YOGO & COMPANY ADVOCATES........APPLICANT/ADVOCATE
VERSUS
NATIONAL IRRIGATION BOARD.............................RESPONDENT/CLIENT
JUDGMENT
1. By a notice of motion dated 25th June, 2019, brought under Section 51 (2) of the Advocates Act Cap 16 Laws of Kenya (hereinafter referred to as the Act) and Order 11 (3) (1)(h) of the Civil Procedure Rules; the Applicant prays for orders:
1) THAT this Honourable Court be pleased to convert the certificate of costs issued on 07th June, 2019 into decree and judgment be entered for the Applicant together with costs and interest at 14% p.a from 7th June, 2019 until payment in full
2) THAT the costs of this application be awarded to the Applicant
2. The motion is premised on the grounds on the body of the application and the supporting affidavit sworn by of ERICK OJURO, Advocate of the High Court of Kenya, on 25th June, 2019. Annexed to the affidavit is a certificate of taxation dated 07th June, 2019 for the sum of Kshs. 78,175/-.
3. When the application came for hearing on 23rd July, 2019, the Respondent, though served on 18th July, 2019 did not oppose the application or send a representative. The application is therefore unopposed.
4. Section 51 of the Act makes general provisions for entry of judgment on a Certificate of Taxation which has not been set aside or altered where there is no dispute as to retainer.
5. In the present case, there is no allegation that the Advocate had no instructions to act for the client in KISUMU CMCC NO. 28 OF 2009 BLASTO OLEWE ONDIEK Vs N.K. MUTHUI & NATIONAL IRRIGATION BOARDfor which costs were taxed and so, 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.
6. 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.”
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 evidence that the bill of costs was received by the respondent on 03rd May, 2019 and thirty (30) days from the delivery of the bill to the client expired on 03rd June, 2019.
8. The upshot of this is that the notice of motion dated 25th June, 2019 succeeds and is allowed in the following terms:
a) Judgment is hereby entered for the advocate against the Respondent forKshs. 78,175/-.
b) Interest shall accrue on the taxed costs at 14% per annum from03rd June, 2019 until payment in full
c) The Advocate will also have the costs of this application.
DATED AND DELIVERED ON THIS31stDAY OFJuly 2019
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
For the Applicant /Advocate - Theuri/Yogo
For the Respondent/Client- N/A