https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9483

Ojienda v County Government of Meru (Miscellaneous Application 9 of 2018) [2026] KEHC 9483 (KLR) (Civ) (30 June 2026) (Ruling) Neutral citation: [2026] KEHC 9483 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Application 9 of 2018 RE Aburili, J June 30, 2026 Between Prof. Tom Ojienda Applicant and County Government Of Meru Respondent Ruling 1.The application dated 23rd January, 2024 seeks orders that Judgment be entered against the respondent County Government of Meru in favour of the applicant Prof. Tom Ojienda & Associates in the sum of Kshs. 946,688 as per the certificate of taxation dated 30th November, 2023, together with interest from the date of ruling on taxation which is 9th November 2021 until payment in full. 2.The applicant advocate also seeks to be allowed to execute the judgment against the respondent and finally, that costs of the application be provided for. The application is predicated on the grounds on the face thereof as well as the supporting affidavit of Prof Tom Ojienda SC, sworn on 23/1/2024. 3.The applicant also filed written submissions dated 12/6/2025. The applicant’s case is that the law firm filed an advocate/client bill of costs dated 14/3/2018 seeking Kshs. 35,369,444.92 as legal fees due and owing to the law firm by the respondent, having represented the respondent in constitutional petition No. 333 of 2016 between Meru County Government Vs Tharaka Nithi County Government and 4 others and that the respondent/client failed to settle legal fees for the legal services rendered. 4.That pursuant to the ruling of 9/11/2021, the advocate/client bill of Costs was taxed at Ksh. 946,468, after inter partes hearing with the respondent being represented by the firm of Munga Kibanga and company advocates who opposed the bill by filing submissions dated 4th September, 2018. 5.That a certificate of taxation was issued on30/12/2023 in favour of the applicant for the taxed amount, which certificate has not been altered by any court hence the reason for judgment to be entered against the respondent. 6.In the submissions dated 12/6/2026, the applicant reiterates the application and grounds in support thereof adding that attempts to have the taxed costs settled by the respondent have not borne any fruits. 7.The applicant cites Section 51(2) of the Advocates’ Remuneration Order and several judicial pronouncements to justify the orders sought. The decisions include A. M Kimani & Co Advocates Vs Kenindia Assurance co. Ltd (2006) eKLR , on the finality of the certificate of taxation, Lubulellah & Associates Advocates Vs N.K Brothers Ltd [2014]eKLR on entitlement of an order of judgment where the certificate of costs has not been set aside and on whether the court should award interest and costs, the applicant relies on Rules 7 of the Advocates Remuneration Order and the case of Makhecha & Co. Advocates Vs Central Bank of Kenya [2020]eKLR, referring to rule 7 of the Advocates Remuneration Order. 8.Further submission is that costs are in the discretion of the court as was stated in Republic Vs Rosemary Wairimu Munene exparte applicant Vs Ihururu Dairy Farmers Co-operative Society Ltd where the court stated inter alia, that costs follow the event but should not be used to penalize the losing party, rather, to compensate the successful party for the trouble taken in prosecuting or defending the case. 9.The respondent did not make any appearance and neither did it oppose the application under consideration. Analysis and Determination 10.Having considered the application, grounds and submission in support, the issue for determination is whether the application is merited. 11.Section 51 (2) of the Advocates Act Provides that:(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 the amount of the costs covered thereby and the court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs. 12.In the instant case, the advocate/ client costs were taxed inter partes and a ruling rendered on 9/11/2021. Thereafter, the taxing master issued taxation dated 30th November, 2023. That certificate has not been altered or set aside. There is neither a reference filed and or pending, nor any dispute as to retainer of the applicant by the respondent. That being the case and pursuant to Section 51(2) of the Advocates Act, there is no impediment to the settlement of the taxed costs only that the respondent has not settled the said taxed costs, thereby necessitating the application herein. 13.Accordingly, this court finds that the applicant has made a case for judgment to be entered in terms of the certificate of costs dated 30th November, 2023. I therefore enter judgment for the applicant/ advocate in the sum of Kshs. 946,568 as per the certificate of costs dated 30th November, 2021. 14.On whether the interest sought is payable, Rule 7 of the Advocates Remuneration Order provides that-;“An advocate may charge interest at 14% percent 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, provided that such claim for interest is raised before the amount of the bill shall have been paid or tendered in full.” 15.Interest, according to the above Rule 7, is charged commencing 30 days after the date of service of the itemized bill of costs on the client, demanding for such interest. Where the itemized bill seeks for interest and is not settled and the advocate files into court the bill of costs, the advocate must also include that item of interest claimed so that it forms part of the Bill of costs for taxation by the taxing master. 16.Absent the claim for interest in the served bill of costs and eventually in the filed and taxed bill of costs, this court cannot award the interest demanded, at whatever rate. This position finds support in various decisions of the High Court adopting the Court of Appeal’s binding decisions. 17.In other words, the advocate in his itemized bill of costs must explicitly demand for interest payable and if the advocate files or serves the client with a bill without raising the claim for interest in the bill itself, then they forfeit the statutory interest under Rule 7 of the Advocates Remuneration Order. This is what the court held in Tom Ojienda & Associates Vs Nairobi City County, JR Miscellaneous Application E114/2021 [2025] KEHC 5043 (KLR on 28th April 2025 – ruling) referring to Rule 7 of the Advocates Remuneration Order-:“16.The above provisions has been interpreted differently until the court of appeal recently settled the position. Needless to state that in the instant case, the advocate’s bill of costs dated 22nd July, 2022 was served upon the client on 2nd September, 2021 as shown by the receiving stamp appended on the bill of costs.17.I have perused the bill of costs and I have not seen any demand for interest. What then is the effect of not demanding for interest at the time of serving of the bill of costs upon the client”18.In Lubullellah & Associates Vs N.K Brother Ltd [2014] the High court held that-;“as this court held in the case of HC Misc. No. 486 and 487 of the 2012 E.W Njeru & Co Advocates (supra) if an advocate files his bill of costs without raising the issue of interest, then he forfeits interest as provided for under Rule 7 of the Advocates Remuneration Order...”19....20..21.From the above Lubulellah case, interest does not become automatically chargeable after the lapse of the one month from the ate when the bill was served, unless, as stipulated in Rule 7 of the advocates remuneration Order, such claim for interest was raised.22.The court of appeal, quite recently, discussed this issue of interest chargeable on costs, at length in the case of Otieno Regot & company advocates vs Kenindia Assurance Co. Ltd, (Civil appeal 165 of 2019) [2023] KECA 1443(KLR) 24 November, 2023 (Judgment) as follows, inter alia, that an advocate cannot charge the 14% per annum interest under Rule 7 of the Advocates Remuneration Order without notifying the client. The court emphasized that it was incumbent upon the advocate to put the client on notice that they intended to claim interest at the point at which the bill of costs was drawn. It follows that an advocate is barred from springing up a claim for 14% interest during taxation or judgment application if it was not demanded in the original bill served to the client. To hold otherwise would amount to procedural unfairness and violate the clear requirements of the Advocates Remuneration Order.23.The Court of Appeal further stated:“22.To reiterate, the rule of law announced in the companion case, Kisumu Civil Appeal No. 129 of 2018, to the effect that an advocate is not permitted to surcharge a client interest at the rate of 14% p.a. under Rule 7 of the Advocates Remuneration Order unless he notified the client of that charge in his fee note/bill to the client and in his Bill of Costs as lodged in Court has no application in this case. This is because, here, the advocate included the interest in the Bill of Costs and benefitted from a favourable award by the Taxing Master. It was incumbent upon the respondent, if dissatisfied with the award, to challenge it by invoking Rule 11 of the Advocates Remuneration Order; and it did not do so.”[emphasis added]24.The Court of Appeal did not stop there. It went further to clarify the position and to expunge any confusion on interest allowable on advocate / client costs and stated as follows, quite authoritatively:“I believe that this decision and its companion one in Kisumu Civil Appeal No. 129 of 2018 will remove the cobwebs of confusion reigning in this area. It comes down to a salutary advice for advocates: if one hopes to claim the 14% p.a. interest under Rule 7 of the Advocates Remuneration Order on a fee note or Bill of Costs, one must make the claim in the fee note and/or Bill of Costs. If the interest is not claimed in the fee note or Bill of Costs, an advocate loses his right to claim for it subsequently. Similarly, if the interest of 14% under Rule 7 of the Advocates Remuneration Order is not specifically awarded during the taxation proceedings, the advocate must invoke Rule 11 of the Advocates Remuneration Order and file a reference to protest the omission. The advocate cannot wait to introduce the interest during enforcement proceedings under section 51(2) of the Advocates Act. If the advocate demands interest at that late stage, he will likely suffer two potential perils: the court can only award interest at earliest from the date of lodging the Bill of Costs; and the interest is at the discretion of the court. However, where the interest of 14% p.a. under Rule 7 of the Advocates Remuneration Order is specifically claimed in the Bill of Costs and awarded during the taxation proceedings, the interest will apply to the taxed amount until it is fully paid. An application under 51(2) of the Advocates Act will not act to reduce the interest rate or otherwise create a reservoir of discretion for the judge to change the interest rate.”[emphasis added]” 18.Applying the principles as espoused in the Court of Appeal Ragot decision to this case, as well as the Lubulellah case, the advocate’s bill of cost is dated 14th March 2018 and filed in court on 25th April 2018. The advocate claimed for a sum of Kshs. 35,369,444 but the bill of costs does not contain any prayer item for interest and neither do the submissions dated 7/5/2018 in support ask for interest. 19.The certificate of taxation awarded the taxed amount being Kshs. 946,568. Nothing like interest is mentioned. The applicant/advocate has introduced the claim for interest in the application for entry of Judgment on the taxed costs. 20.In Lubulellah & Associates Advocates v N K Brothers Ltd [supra], the Court of Appeal held that: “Where an advocate seeks to recover interest on his fees, he must have demanded for the same in the bill served on the client.” 21.In Musyoka & Wambua Advocates v Rustam Hira Advocate [2006] eKLR, the court struck out a claim for interest not previously demanded in the bill, holding it was an afterthought and not compliant with Rule 7 of the Advocates Remuneration Order. 22.Recently, the Court of Appeal addressed this issue of whether an advocate can claim interest on taxed costs when no prior demand was made before filing the bill of costs, in the above cited case of Otieno, Ragot & Company Advocates v. Kenindia Assurance Co. Ltd (Civil Appeal 129 of 2019), [2023] KECA 1398 (KLR) (24 November 2023) (Judgment) and held that an advocate cannot charge the 14% per annum interest under Rule 7 of the Advocates Remuneration Order without notifying the client. The court emphasized that it was incumbent upon the advocate to put the client on notice that they intended to claim interest at the point at which the bill of costs was drawn. It follows that an advocate is barred from springing up a claim for 14% interest during taxation or judgment application if it was not demanded in the original bill served to the client. To hold otherwise would amount to procedural unfairness and violate the clear requirements of the Advocates Remuneration Order. 23.In Amondi & Company Advocates v. County Government of Kisumu (Miscellaneous Application 73 of 2020), the Court reiterated that Rule 7 of the Advocates Remuneration Rules is clear that interest is chargeable at 14% per annum from the expiration of one month from the delivery of the bill to the client. However, the court also noted that interest does not become automatically chargeable after the lapse of one month; it is only chargeable provided that such claim for interest was raised before the amount of the bill has been paid or tendered in full. 24.As stated above decisions, interest must be introduced in the drawn itemized bill of costs and served upon the client before filing the bill into court for taxation, and it starts accruing 30 days after such service of the itemized bill such that when the bill of costs is filed into court, the respondent/client is put on notice that interest started accruing 30 days after service of the bill of costs demanding settlement. Absent evidence of served itemized bill of costs demanding for interest, this court cannot allow introduction of interest at this state. 25.This court is only bound by the award in the certificate of costs as taxed and where there is no apparent irregularity. To do otherwise will be to overturn the provisions of Rule 7 of the Advocate Remuneration Order as interpreted by the Court of Appeal in the above Otieno Ragot decision. 26.Accordingly, I find the prayer for interest to be devoid of merit and the same is dismissed. 27.On whether this court should grant the prayer permitting execution of the taxed costs as per the judgment entered, again, this is a prayer that is not available at this juncture. It is premature because judgment or decree against the County Government is governed by the Government Proceeding Act, Cap 40 Laws of Kenya which prohibits execution against the Government including the County Government. Section 25 of the Government Proceedings Act expressly prohibits execution against the Government and provides -;25.Exclusion of proceedings in rem against the Government(1)Nothing in this Act shall authorize proceedings in rem in respect of any claim against the Government, or the arrest, detention or sale of any Government ship or aircraft, or of any cargo or other property belonging to the Government, or give to any person any lien on any such ship, aircraft, cargo or other property.(2)Where proceedings in rem have been instituted in the High Court or in a subordinate court against any such ship, aircraft, cargo or other property, the court may, if satisfied, either on an application by the plaintiff for an order under this subsection or an application by the Government to set aside the proceedings, that the proceedings were so instituted by the plaintiff in the reasonable belief that the ship, aircraft, cargo or other property did not belong to the Government, order that the proceedings shall be treated as if they were in personam duly instituted against the Government in accordance with the provisions of this Act, or duly instituted against any other person whom the court regards as the proper person to be sued in the circumstances, and that the proceedings shall continue accordingly.(3)Any order made in accordance with the provisions of subsection (2) may be upon such terms, if any, as the court thinks just; and, where the court makes any such order, it may make such consequential orders as it thinks expedient. 28.The procedure for recovery of or enforcement of decrees against the Government is governed by Section 21 of the Government Proceedings Act which applies to both the National and County Governments. The section provides:21.Satisfaction of orders against the Government(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.(2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.(3)If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.(4)Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.(5)This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party. 29.Until and unless the above provisions of the law as read with Order 29 of the Civil Procedure Rules are adhered to, execution cannot issue against the Government. 30.Accordingly, the prayer for execution against the respondent is found to be incapable of being granted in these proceedings, is premature and is therefore declined and dismissed. 31.On costs, I find that litigation must come to an end, after entry of judgment, a decree will issue as well as a certificate of order against the Government in forms 22 and 23 of Appendix of the Civil Procedure Rules as prescribed under Order 29 Rule 3 of the Civil Procedure Rules with such variations as circumstances may require. This application is procedural to allow the applicant recover taxed costs. Accordingly, I order that each party bear their own costs of the application, the applicant having succeeded partially. 32.This file is closed as any other proceedings in respect of the decree issued and certificate of order against the Government can only be before the Judicial Review division seeking mandamus to compel settlement. 33.The Deputy Registrar to issue Decree and Certificate of Costs Against the Government upon which the applicant advocate shall effect service of the same upon the Respondent County Government of Meru, giving them notice to settle the decree and certificate of order against the Government as stipulated in section 21 of the Government proceedings Act. 34.Accordingly, this file is closed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JUNE, 2026R.E ABURILIJUDGE