[2020] KEHC 806 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

MISC. CIVIL APPLICATION NO. 55 OF 2018

SHERMAN NYONGESA & MTUBIA ADVOCATES......APPLICANT

VERSUS

MICRO-CITY COMPUTERS LIMITED........................DEFENDANT

RULING

1. By a Notice of Motion application dated 1st February, 2019 brought under Sections 1Aand1Bof theCivil Procedure Act, Cap 21, Section 51(2)of theAdvocates Act, Cap 16 Laws of Kenyaand Order 51 rule 1of theCivil Procedure Rules, the Applicant prays for the following Orders:-

a. This Court be pleased to issue an Order of entry of Judgment in favour of the Applicant M/S Sherman Nyongesa & Mutubia Company Advocates against the Respondent, Micro-City Computers Limited in the sum of Kshs.146,575/= on the basis of the Certificate of Costs dated 16th August, 2018 together with interest at court’s rate from 18th July, 2018 until payment in full;

b. That this Honourable Court be pleased to adopt and endorse the Certificate of Costs dated 16th August, 2018 as the Decree of the Court for purposes of execution;

c. That the Costs of this application be provided for.

2. The Motion is premised on the ground that pursuant to a Letter of Offer by the Respondent’s Landlord, the Applicant prepares and lodged for registration a Lease document in favour of the Respondent sometimes in November 2015 to which services and retainer are undisputed. That the Respondent reneged its obligation to pay the legal costs which prompted the filing of Advocate-Client Bill of Costs dated 15th February, 2018. The said bill was taxed at Kshs.146,575/= and a Certificate of Cost issued to that effect on 16th August, 2018.

3. The application is further supported by an Affidavit of Winnie Owiti, an Advocate of the High court of Kenya and sworn on 1st February 2019, to which is annexed the Certificate of Costs marked “NW-1”.

4. The application is opposed on the grounds set out in a Replying Affidavit sworn on 17th May, 2019 and a Supplementary Affidavit sworn on 6th November 2020, both by the Respondent’s Managing Director, Paul Okolo Ananga. He deposed that the Respondent has never been served with any Bill of Costs nor any Notice of Taxation as required by law. Further that the Respondent only came to know of these proceedings after having been served with the present application hence the application cannot stand, having been filed unprocedurally and ought to be dismissed with costs.

5. In the Supplementary Affidavit, Mr. Paul Okolo Ananga deposed that the Respondent has made part payment of Kshs.92,000/= and is making arrangements to settle the outstanding balance thereof, a fact which has not been disclosed to court.

6. At the hearing of the application on 18th November, 2020, M/SNaliaka, Counsel for the Applicant conceded that the Respondent had made part payment of Kshs.92,000/=. She submitted that the Applicant now seeks Judgment to be entered in its favour for the outstanding sum of Kshs.54,575/= pursuant to the Certificate of Costs dated 16th August, 2018. The Learned Counsel further sought for costs and interest in the matter.

Analysis and Determination

7. I have considered the application and the grounds in support and opposition thereof as set in the parties’ respective Affidavits. I have also considered oral submissions by parties’ Counsels. I find the facts of this matter straight forward.

8. The Advocates filed their Advocate-Client Bill of Costs dated 15th February, 2018for taxation and determination of their fees. The Bill of Costswas taxed on18th July, 2018 by the Taxing Officer of this court and allowed in the sum of Kshs.146,575/=. A Certificate of Costs was issued and is dated 16th August, 2018. It is worth noting that the said Certificate has not been set aside thus the issue of the Advocate’s cost is conclusive and overrules the assertion by the Respondent that they were never served with the Bill of Costs.

9. Now, the Applicant’s Advocates are seeking to have the Certificate of Costs adopted as Judgment through the present application, save for the part payments that have been made by the Respondent. In the case of Musyoka & Wambua Advocates…Vs…Rustam Hira Advocate (2006)eKLR, it was held:-.

“Section 51 of the Act makes general provisions as to taxation, as the marginal note indicates. One of those provisions is that the court has discretion to enter Judgment on a Certificate of Taxation which has not been set aside or alter4ed, where there is no dispute as to retainer. This in my view is a mode of recovery of taxed costs provided by law, in addition to filing of suit….””

10. Further, Paragraph 11 of the Advocates Remuneration Order provides that:-:

“Where a party is aggrieved by the decision of a taxing officer, he is required to object in writing by requesting the taxing officer to give reasons for the items of taxation that he is objecting to and thereafter file reference to this court.”

11. Despite the allegations by the respondent that it was never served with the Bill of Costs or any Notification of Taxation, the Respondent has not filed a Reference to this court to challenge the decision of the Taxing Officer. The bill cannot therefore be challenged by way of a Replying Affidavit, and as it stands now, the Certificate of Taxation has not been set aside or altered. In the circumstances, I see no reason as to why this court should deny the Applicant’s Advocates the Judgement as sought.

12. The upshot of this is that the Notice of Motion application dated 1st February, 2019 succeeds and is hence allowed in the following terms:-

a. Judgment be and is hereby entered for the Applicant’sadvocates against the Respondent for the sum of Kshs.54,575/=.

b. The Applicant will also have the costs of this application.

It is so ordered.

DATED, SIGNEDandDELIVEREDatMOMBASAon this26thday ofNovember, 2020.

D. O. CHEPKWONY

JUDGE

In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consent. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all Judgments and Rulings be pronounced in open Court.

D. O. CHEPKWONY

JUDGE