[2018] KEHC 8148 (KLR)
The court found that the applicant's bill of costs had been taxed and certified by the taxing officer, and the respondent did not dispute the retainer or oppose the application. Although the applicant cited the wrong statutory provision, the court held that the substance of the application was clear and predicated...
Source-derived case information.
- Citation
- [2018] KEHC 8148 (KLR)
- Parties
- Applicant: Sophie Chirchir t/a Cherono Chirchir & Co Advocates; Respondent: Africa Merchant Assurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 41 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Unopposed Application for Judgment on Taxed Advocate Client Bill of Costs
- Outcome
- application granted as prayed; judgment entered for applicant for taxed costs plus interest
- Judges
- NA Matheka
- Legal Topics
- Advocate Client Costs, Taxation of Costs, Judgment Entry, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sophie Chirchir t/a Cherono Chirchir & Co Advocates
Applicant
Africa Merchant Assurance Co. Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Unopposed Application for Judgment on Taxed Advocate Client Bill of Costs
Legal Issues
- 1 Whether judgment should be entered for the applicant on the taxed advocate-client bill of costs.
- 2 Whether the miscitation of the relevant statutory provision invalidates the application.
Ratio Decidendi
The court found that the applicant's bill of costs had been taxed and certified by the taxing officer, and the respondent did not dispute the retainer or oppose the application. Although the applicant cited the wrong statutory provision, the court held that the substance of the application was clear and predicated on the correct provision, Section 51(2) of the Advocates Act. Applying Article 159 of the Constitution and the overriding objectives of the Civil Procedure Act, the court disregarded the technical error and granted the application as prayed, entering judgment for the applicant for the taxed sum plus interest.
Court Disposition
application granted as prayed; judgment entered for applicant for taxed costs plus interest
Orders
- Judgment is entered for the applicant against the respondent for Ksh. 139,931.16 plus interest at 9% per annum from 3rd February 2017 until payment in full.
- No order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
MISC. APPL. NO. 41 OF 2016
IN THE MATTER OF THE ADVOCATES ACT
AND
IN THE MATTER OF ADVOCATE – CLIENT BILL OF COSTS
BETWEEN
SOPHIE CHIRCHIR t/a CHERONO CHIRCHIR& CO
ADVOCATES…………………………………........………………......APPLICANTS
VS
AFRICA MERCHANT ASSURANCE CO. LTD……..........………RESPONDENT
RULING
The application before me is the Notice of Motion dated 29th March 2017 and headed as brought under section 55(2) of the Advocates Act and Order 51 of the Civil Procedure Rules.
It is supported by the affidavit sworn by Sophie Chirchir on 29th March 017.
The applicant Sophie Chirchir T/A Cherono Chirchir & Co. Advocates acted for Africa Merchant Assurance Co. in Nyeri CMCC No. 544/2012.
The firm filed a bill of costs which was taxed. They now seek orders that: -
Judgment be entered for the applicant against the respondent for the sum of Ksh. 139,931/16 plus interest thereon at 9% p.a. from 3rd February 2017 until payment to the full, and that the costs be provided for.
The application was duly served on the respondent. There is no replying affidavit/grounds of opposition filed.
The application is supported by the written submissions of counsel, the applicant, which reiterate the contents of the application.
I have considered the application, the supporting affidavit and the submissions by counsel. The application is not opposed.
However, the wrong section of the law appears to have been cited.
It ought to be section 51(2) which provides ;
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.
The section 55 cited deals with issues unrelated to taxation.
However, the substance of the application clearly shows it is predicated on s.51(2) of the Advocates Act Cap 16. Under Article 159 of the Constitution, and sections 1A, 1B and 3A of the of the Civil Procedure Rules, I will consider it as having been brought under the proper provisions of the law.
Since it is not opposed the same is granted as prayed. There are no orders. as to costs.
Teresia M Matheka
Judge
Dated, delivered and signed at Nyeri this 22nd day of January 2018
Court Assistant: Hariet