https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4381

Prof Tom Ojienda & Associates v County Government of Migori (Environment and Land Miscellaneous Application E005 of 2025) [2026] KEELC 4381 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELC 4381 (KLR) Republic of Kenya In the Environment and Land Court at Migori Environment and Land Miscellaneous Application E005 of 2025 FO Nyagaka, J June 30, 2026 Between Prof Tom Ojienda & Associates Applicant and County Government of Migori Respondent Ruling 1.The Applicant is a law firm. It filed a Notice of Motion dated 7th August 2025. It brought the application under Section 51(2) of the Advocates Act, Rule 7 of the Advocates Remuneration Order and other enabling provisions of the law. It sought orders that:1.The Honourable Court be pleased to enter Judgment for the Applicant against the Respondent for the sum of Kshs. 545,777.00/= (Kenya Shillings Five Hundred and Forty-Five thousand, Seven Hundred and Seventy-Seven and Zero Cents Only), as appears on the Certificate of Taxation dated 31st July 2025.2.This Honourable Court be pleased to grant interest on the said sum of Kshs. 545,777.00/= (Kenya Shillings Five Hundred and Forty-Five thousand, Seven Hundred and Seventy-Seven and Zero Cents Only), to run from one month of service of the Bill of Costs on the Respondent, that is from 6th June 2025 until payment in full.3.The Applicant be allowed to execute the judgement herein against the Respondent4.The costs of this Application be provided for. 2.The application was anchored on the grounds set out on the face to it as well as the Supporting Affidavit sworn by Professor Tom Ojienda, SC. The Applicant’s case was that it was instructed by and represented the Respondent in Migori ELC Petition No. 24 of 2021: John Ochieng Maricus (suing as the Administrator of the Estate of Maricus Oseta Murama) versus the County Government of Migori & others. Further, that despite the representation, the Respondent failed to pay it fees hence the advocate-client bill of costs dated 7th February 2025. 3.The Applicant averred that upon filing the Advocate - client Bill of costs, the taxing master subsequently taxed in the sum of Kshs. 545,777.00/=. That was vide a ruling dated and delivered on 17th July 2025. The Applicant also stated that the Honourable Deputy Registrar issued a Certificate of Taxation dated 31st July 2025 for the said sum. 4.The depositions in the Affidavit in support of the application reiterated most of the contents of the application save to add that the deponent deposed that learned counsel for the Respondent was aware of the Ruling on the taxation because he was in court on the date it was rendered. The deponent further swore that the Certificate of Taxation dated 31st July 2025 had neither been set aside nor altered by the court. As such, he maintained that there was no reason for the court not to enter judgment in favor of the Applicant in the sum prayed for. 5.The deponent attached the following annexures to the Supporting Affidavit: a copy of an advocate-client bill of costs dated 7th February 2025 which he marked as POT 1, the Ruling dated 17th July 2025 on the taxation of the Advocate-client Bill of costs which he marked as POT 2, and a Certificate of Taxation dated 31st July 2025 which he marked as POT 3. Response 6.The Respondents filed Grounds of Opposition dated 27th February 2026. They were the Application fell short of the criteria for issuance of the orders sought; the Respondent was enjoined by provisions of the Public Finance Management Act, 2012 to have all its expenditures pre-approved and budgeted for by the County Assembly; there was no legal basis for an additional award of interest on the final amount taxed by the Taxing Officer; the Applicant's prayer for an execution order was both premature and speculative since a certificate of order was yet to be served upon the Respondent; and the prayer for an execution order offends the doctrine of ripeness. Submissions 7.The application was canvassed by way of written submissions. The Applicant filed its submissions dated 7th August 2025. It gave the background of the application and then identified the following issues for determination by this court:i.whether this Honourable Court should enter judgment in favor of the Applicant?ii.whether the court should award costs and interest 8.It placed reliance on Section 51 (2) of the Advocates Act to argue that once a taxing master issues a certificate of taxation, the amount indicated on it is final, unless the same is set aside or altered by the court. The said provision also grants power to the court to make orders in relation to the bill of costs, including entering judgment for the sum certified to be due with costs whether the retainer is not disputed. 9.The Applicant relied on the case of A.M. Kimani & Company Advocates -vs Kenindia Assurance Company Limited (2006) eKLR to argue that, where a certificate of costs has not been set aside or altered, and where there is no order of stay, the certificate of costs is final as to the amount of costs. Accordingly, the Applicant submitted that the Deputy Registrar taxed their Advocate-Client Bill of Costs dated 7th February 2025 at Kshs. 545,777.00/= vide a Ruling delivered on 17th July, 2025. The deputy registrar issued a Certificate of Taxation dated 31st July 2025 and the same has not been set aside by any court, nor are there any subsisting stay orders. in the circumstances, the Applicant submitted that, nothing prevents this Court from adopting and converting the said Certificate of Taxation into a Judgment of the Court, together with the applicable interest. 10.In addition to the aforesaid, the Applicant relied on in Lubulellah & Associates Advocates v N K Brothers Limited [2014] eKLR to submit that as long as the Respondent had not provided the court with proof that the certificate of taxation had been altered, nothing prevented the court from entering judgment in favour of the Applicant. In any event, the Applicant maintained that it is entitled to enjoy the fruits of its hard work. The Applicant maintained that the Respondent has never reached out to the Applicant with a proposal on how to settle the legal fees and prayed that the judgment be entered in its favor. 11.On whether the court should award costs and interest, the Applicant submitted that rule 7 of the Advocates Remuneration Order provides for the circumstances upon which an advocate may charge interest. The said provision provides that that an advocate may charge a 14 percent interest per annum on disbursements, whether by scale or otherwise from the time of the delivery of the bill of costs provided that a claim for interest is presented the amount of the bill is paid in full. 12.The Applicant sought interest on the sum of Kshs. 545,777.00/= from 6th June 2025, being one month from date of service of the Bill of Costs on the Respondent, till payment in full. It maintained that the Respondent has not made any payment whatsoever towards cleating the amount due and owing to the Applicants, hence the justification for interest claimed. 13.On the question of costs, the Applicant submitted that cost are awarded at the discretion of the court and the costs follow event. 14.The Applicant prayed that its application dated 7th August 2025 be allowed in its entirety with an interest of 14 percent per annum which amount the Applicant submitted, would adequately compensate it for the hardships it continues to suffer while pursuing the amount lawfully due to it. 15.The Respondent filed submissions dated 27th February 2026. After giving the introduction the Respondent gave two issues for determination. They were, whether the prayer for interests on the taxed sum was justifiable; and whether the prayer for leave to execute the judgment of this Court was ripe for determination. 16.Regarding the first issue they argued that the prayer for an award of interests at the rate of 14% per annum, running from 6th June, 2025 until payment in full was not merited. They argued that Rule 7 of the Advocates (Remuneration) Order does not operate in isolation. Further, Section 51(2) of the Advocates Act Cap 16 of the Laws of Kenya provides that certificate of the taxing officer who taxed any bill shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby. The court may order that judgment be entered for the sum certified to be due with costs. They submitted that the Bill of Costs was taxed at Kshs. 545,777.00 and a Certificate of Taxation on 31st, July 2025. They argued that the issue of interests at 14% per annum was never itemized and or pleaded in the Bill of Costs hence the Ruling did not provide for interest. Further, since it was as such they argued the applicant should explore other means such as filing a Reference on the Certificate of Taxation pursuant to Rule 11 of the Advocates (Remuneration) Order. 17.They relied on the finding of the Court of Appeal in Titus Makhanu & Associates Advocates v Alicate Holdings Limited 2025] KECA 1834 (KLR). In it the Court stated that “Requiring an advocate to raise the claim for interest at the earliest instance gives the client an opportunity to object to any delays by the advocate in raising the Bill of Costs." The Court added further that once the advocate includes the claim of interest, it must be litigated before the Taxing Master in the taxation proceedings and that it was the advocate, if so minded, must challenge the omission in a reference to the court under Rule 11 of the Advocates (Remuneration) Order, and it was not open to the advocate to spring the claim of interest for the first time at the enforcement proceedings under section 51 of the Advocates Act. They also relied on Lubulellah & Associates Advocates vs N K Brothers Limited (2014) eKLR where the Court stated that once a taxing master has taxed the costs and issued a Certificate of Costs and no other action would be required from the court save to enter judgment. 18.On the second issue, they argued that the legal framework on how to execute a decree or order of the Court against Government entities such as the Respondent herein is clearly spelt out. They relied on the observations of the Supreme Court in Attorney General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) [2022] KESC 8 (KLR) which discussed the doctrine of ripeness. They argued that the prayer was not yet ripe for the grant. They submitted that prayers No. 2 and 3 were not merited and the application should be dismissed with costs. Issues, analysis and determination 19.During the preliminary stage when the parties prepared for the hearing, the Respondent stated that it did not have a problem with the judgment prayed for being entered for the sum taxed. This may explain why the parties did not belabor to submit on prayer 1 of the application. Thus, without much ado this court hereby enters judgment for the applicant against the Respondent in the sum of Kenya Shillings Five Hundred and Forty-Five thousand, Seven Hundred and Seventy-Seven and Zero Cents (Kshs. 545,777.00/=) only, as appears on the Certificate of Taxation dated 31st July 2025. 20.Turning to prayer 2 of the application, the issue the parties contended on was the prayer for an award of interest on the taxed costs, which they prayed that it runs from one month of service of the Bill of Costs on the Respondent and a month before the delivery of the Ruling, that is from 6th June 2025 until payment in full. That was basically about two months earlier than the date of Ruling. Should the court award it? 21.First, it is important to note that parties are bound by their pleadings. They cannot be permitted to lead evidence that goes beyond the bounds of their pleadings. Such evidence would at best be ignored by the court or tribunal. In Daniel Otieno Migore v South Nyanza Sugar Company Limited (2018) eKLR, the court held that:“Parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from.” 22.A plain reading of the prayer for the award of interest is that the Applicant prays that the court grants interest on the said sum of Kshs. 545,777.00 to run from one month of service of the Bill of Costs on the Respondent, that is from 6th June 2025, until payment in full. The Respondent contend that the prayer is untenable as the applicant ought to have prayed for it in the Bill of Costs and if it was awarded, well and good. But if not then they ought to have applied for a Reference on the taxation. 23.Basically, the applicant prays that interest be awarded from the date they have indicated yet the legal position on award of interest on sums ordered by the Court is clear. In case the Respondent were to execute the sum before applying for entry of judgment as is in the instant case, then the position of the Respondent, as was confirmed by Court of Appeal decision in the Titus Makhanu case (supra) would hold that where the taxing master awarded no interest the sum awarded as per the Certificate of Taxation is final, so much so that if interest was not ordered, it could not be recovered. 24.The law on award of interest on sums claimed is clear. In regard to Advocate/client bills of costs, Section 51(2) of the Advocates Act provides that where a taxing master completes his/her work of taxation, the amount awarded is final, and the Court may enter judgment where a retainer is not disputed. 25.It is my considered view that where a judgment is entered regarding a Certificate of Costs as in this case, then the resultant decree is one as any other decree of the Court. The decree in that regard is a monetary one. Thus, of awards of interest regarding monetary decrees, Section 26 (1) of the Civil Procedure Act provides as follows:“Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit”. 26.This Court has now entered judgment for the applicant against the respondent. In regard to the prayer for an award of interest, and bearing in mind the provisions of Section 26(1) of the Civil Procedure Act, this Court has the discretion to award interest, which may order it payable on the principal sum adjudged, to run from the date of the suit before the decree in addition to any before the institution of the suit, together “…with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit”. 27.In the instant case however since the applicant prayed for interest to run from a month after service and not the date of filing the Certificate of Costs in and with the instant application. Then the question that this court grapples with is should it award interest on the principal sum contrary to what has been prayed for through the pleadings of the parties or what law provides? 28.The provision above is to the effect that interest may be awarded to run from before the institution of a suit, from the date of the institution thereof, and or the one after the decree until payment is made. However, with regard to Advocate/Client bills of costs, Section 51(2) of the Advocates Act clarifies the period for which interest is payable. It is from the time the bill is filed to the time of the taxation of the Bill and a certificate is issued if it was prayed for in the bill of costs. That is why the Certificate is final, as per the Act. Thus, the client is bound to pay forthwith the sum adjudged and contained in the certificate of costs since it is final. 29.But then, what happens when a client decides to delay, dilly dally or ignore to make the immediate payment? Should the sum remain the same forever just because the Advocates Act provides that the sum on the Certificate of Costs is final? In my humble view that is where Section 26(1) of the Civil Procedure Act is reconciled with the provision in the Advocates’ Act. The amount on the Certificate of Costs will remain the same in so far as the Advocate has not moved the court to convert it to a judgment and decree of the court for execution. Once he/she does that, the court will now apply the provisions of Section 26(1) of the Civil Procedure Act regarding interest, only to the extent that the interest can only run post the date of judgment or decree. 30.There often is uncertainty arising from decisions made over whether or not to award interests on advocate/client bills of costs. But the Supreme Court (see, Airports Authority -vs- Otieno Ragot and Company Advocates (Petition E011 of 2023) [2024] KESC 44(KLR)) and the Court of Appeal (refer to the Titus Mahkanu case (supra)) are clear. When an advocate serves a Bill of Costs, under Rule 7 of the Advocates (Remuneration) Order as read with Section 51 of the Advocates Act, interest starts to run from one month after the service of the Bill on the client. If the Bill is not honoured and the advocate decides to file the Bill of costs for taxation but fails to include the prayer for interest thereto, the sum adjudged by the taxing master is final unless the advocate files a reference thereto and he bill is set aside accordingly so that the interest issue is addressed. Once a bill of costs is taxed the Advocate cannot charge interest retrospectively on the bill of costs which has been taxed and is final. But this does not mean that interest cannot run on the amount due on the Certificate of Costs, and the advocate cannot charge any cost incurred as a result of the taxation of the bill of costs. 31.Of my humble view above, I am guided by the decision of the Court of Appeal in the Titus Mahkanu case (supra), where the Court held, at paragraph 32(d) as follows:“After the taxation, the total amount owing to the advocate is included in a Certificate of Costs. That amount is the totality of the indebtedness of the client to the advocate. The only other amount the advocate can charge from that date is interest on the taxed amounts; and costs for the taxation or adoption proceedings”. 32.The above decision gives guidance that an advocate should claim interest on the bill costs on the costs when filing the bill of costs or at the earliest possible time before taxation is completed or done and a certificate of costs issued. That sum awarded on the Certificate remains final subject only to further subsequent interest and any costs incidental to the taxation, and I should add, of execution if it gets to that stage. 33.Thus, the argument by the Respondent that interest cannot be charged on a sum adjudged and indicated on the Certificate of Costs is flawed. But the prayer by the Applicant and the submission that the interest on the sum due on the Certificate and for which the court has entered judgment herein is also flawed because the Certificate is not a bill of costs anymore: it cannot be subject to Rule 7 of the Advocates Remuneration Order again. Hence, I should have dismissed the entire claim on interest because a party is bound by his pleadings, and the claim was for the interest to be awarded from a month after the delivery of the bill on the client and before the Certificate was issued and not from the date of the Certificate, but in the interest of justice I award interest at court rates from the date of judgment. 34.In regard to the prayer for the court to allow the Applicant to execute the judgement herein against the Respondent, this Court is of the humble view that there exist procedures laid down by both statute and rules on how executions against the national and county governments where they are bound to honour decrees against them. For this court to grant such a prayer it would be contrary to those procedures of the law hence illegal. The prayer this fails. The applicant is at liberty to follow the said procedures to realize the sum awarded in the judgment now in place. 35.The upshot is that the application herein succeeds in this court enters judgment for the applicant against the respondent in the sum of Kenya Shillings 545,777.00 with interest at court rates from the date of judgment till payment in full. On costs, since the application has succeeded basically, the Respondent shall bear them. 36.It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 30TH DAY OF JUNE 2026.HON. DR. IUR NYAGAKA,JUDGE.From 1:01 PM in presence of,Ms. Ndinya for the ApplicantMr. David Otieno for the Respondent