[2009] KEHC 3985 (KLR)
The court found that the applicant had established that the retainer was not disputed, the Bills of Costs had been taxed, and Certificates of Costs issued. The respondent, despite service, failed to oppose the application. Section 51(2) of the Advocates Act empowers the court to enter judgment for the sum certified...
Source-derived case information.
- Citation
- [2009] KEHC 3985 (KLR)
- Parties
- Applicant: Rajni K. Somaia; Respondent: Delphis Bank Ltd
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- ? 52 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Entry of Judgment on Taxed Costs
- Outcome
- Application allowed in part; judgment entered for the certified sum, but execution stayed.
- Legal Topics
- Taxation of Costs, Entry of Judgment, Advocate Remuneration, Unopposed Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rajni K. Somaia
Applicant
Delphis Bank Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Entry of Judgment on Taxed Costs
Legal Issues
- 1 Whether judgment should be entered for the sum certified in the certificate of costs where the retainer is not disputed and the application is unopposed.
- 2 Whether the existence of an order staying execution affects the grant of all prayers sought.
Ratio Decidendi
The court found that the applicant had established that the retainer was not disputed, the Bills of Costs had been taxed, and Certificates of Costs issued. The respondent, despite service, failed to oppose the application. Section 51(2) of the Advocates Act empowers the court to enter judgment for the sum certified in the certificate of costs where the retainer is not disputed. The court was satisfied that the application met the legal requirements and granted the primary prayer for entry of judgment. However, due to the existence of an order staying execution in such matters, the court declined to grant the prayer for execution at this stage.
Court Disposition
Application allowed in part; judgment entered for the certified sum, but execution stayed.
Orders
- Prayer (a) for entry of judgment for the sum certified in the certificate of costs is granted.
- Prayer (c) is granted.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
Misc. Appli. 52 of 2008
RAJNI K. SOMAIA …………………...........…………………..……….. APPLICANT
VERSUS
DELPHIS BANK LTD ……………………………………………… RESPONDENT
RULING:
S. 51(2) of the Advocates Act provides that:-
“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 therein 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.”
The present application dated 21st April 2008, is for the entry of judgment for the sum of KShs.479,362/10cts on the basis of the certificates of costs annexed to the applicant’s supporting affidavit (i.e. Annexure marked KShs.1 a, b & c). It is indicated by the applicant that the retainer is not disputed. He deponed that he was instructed to defend the respondent in the material suits and thereafter raised fee notes which were not honoured. He then presented Bills of Costs for taxation and this was done on 23rd May 2004. Thereafter, on the 11th April 2008, the deputy registrar issued, the appropriate Certificates of Costs. The respondent despite being served with the application failed and/or neglected to file any response and/or objection thereto.
Consequently, the application is unopposed and satisfactory for the grant of the basic order sought i.e. entry of judgment.
Prayer (a) of the application is granted along with prayer (c).
However this Court having earlier on 27th November 2008, being notified of the existence of an order staying execution in such matters, prayer (b) may not be granted at this juncture.
Dated and Signed at Kisumu this 26th day of January 2009.
J. R. KARANJA
JUDGE
J.R.K./mo