[2016] KEHC 528 (KLR)
The court found that the applicant's claim was supported by a valid Certificate of Taxation, that there was no challenge to the advocate's retainer or the taxed costs, and that the respondents had not filed any response or reference to contest the certificate. Under Section 51(2) of the Advocates Act, the court is...
Source-derived case information.
- Citation
- [2016] KEHC 528 (KLR)
- Parties
- Applicant: Prof. Tom Ojienda & Associates; Respondent: Isiolo County Assembly Service Board; Respondent: The Clerk, County Assembly of Isiolo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 49 of 2015
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- judgment for applicant in the sum of KES 5,324,281.90 with interest at court rates from date of filing until payment in full; leave to execute declined; each party to bear own costs.
- Legal Topics
- Taxation of Costs, Advocate Client Costs, Certificate of Taxation, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Prof. Tom Ojienda & Associates
Applicant
Isiolo County Assembly Service Board
Respondent
The Clerk, County Assembly of Isiolo
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the applicant is entitled to judgment for the taxed costs as per the Certificate of Taxation.
- 2 Whether there is any valid challenge to the advocate's retainer or the Certificate of Taxation.
- 3 Whether the applicant is entitled to leave to execute judgment against the respondents.
Ratio Decidendi
The court found that the applicant's claim was supported by a valid Certificate of Taxation, that there was no challenge to the advocate's retainer or the taxed costs, and that the respondents had not filed any response or reference to contest the certificate. Under Section 51(2) of the Advocates Act, the court is empowered to enter judgment for the sum certified as due where the retainer is not disputed and costs have been taxed. Accordingly, the court entered judgment for the applicant in the sum of KES 5,324,281.90 as per the Certificate of Taxation dated 7th June 2016, with interest at court rates from the date of filing until payment in full. The court declined to grant leave to...
Court Disposition
judgment for applicant in the sum of KES 5,324,281.90 with interest at court rates from date of filing until payment in full; leave to execute declined; each party to bear own costs.
Orders
- Judgment entered for the applicant in the sum of KES 5,324,281.90 as per the Certificate of Taxation dated 7th June 2016.
- The judgment sum shall attract interest at court rates from the date of filing of the application until payment in full.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
JUDICIAL REVIEW
MISCELLANEOUS APPLICATION NO. 49 OF 2015
IN THE MATER OF AN: APPLICATION BY PROF. TOM OJIENDA ASSOCIATES ADVOCATES FOR LEAVE TO APPLY FOR AN ORDER OF MANDAMUS
AND
IN THE MATTER OF: THE HIGH COURT MISC APPLICATION No. 49 OF 2015
PROF. TOM OJIENDA & ASSOCIATES.....................................APPLICANT
VERSUS
ISIOLO COUNTY ASSEMBLY SERVICE BOARD.........1ST RESPONDENT
THE CLERK, COUNTY ASSEMBLY OF ISIOLO...........2ND RESPONDENT
JUDGMENT
1. The notice of motion dated 7th November 2016 is brought under the provisions of Section 51 (2) of the Advocates Act Cap 16 Laws of Kenya. The application seeks for judgment against the respondent for shs 5, 324 281. 90 as per the Certificate of Taxation dated 7th June 2016. It also seeks for interest from the date of filing of the application until payment in full. The applicant Prof Tom Ojienda &Associates Advocates also seek for leave to execute judgment against the respondent and costs.
2. The grounds in support of the notice of motion are on the face of the motion and as supported by the annexed affidavit sworn by Professor Tom Ojienda and the annextures thereto.
3. Among the annextures is the certificate of taxation dated 7th June 2016 for shs 5, 314, 281. 90 as taxed on 24th October 2015. There is also copy of the bill as taxed.
4. The respondents were served on 7th December 2016 but there is no appearance or response to the application. There is also no reference filed to challenge the Certificate of Taxation issued by the Taxing Officer.
5. Under Section 51(2) of the Advocates Act, where retainer is not disputed and costs are taxed, an order that judgment be entered for the sum certified to be due with costs may issue, on application.
6. The taxed costs are between advocate and client. There is no challenge to the advocate’s retainer.
7. Accordingly, I find prayer No. 1 of the notice of motion dated 7th November 2016 merited.
8. I enter judgment for the applicant in the sum of shs 5,324,281. 90 as per the Certificate of Taxation of costs dated 7th June 2016. The said sums of money shall attract interest at court rates from date of filing of the application until payment in full.
9. A decree shall issue for the judgment sum with interest at court rates as decreed above.
10. I decline to grant prayer No. 2 as execution process has to be followed after Decree and Certificate of Order Against the Government are issued and demand for settlement made.
11. I further order that each party do bear their own costs of this application.
Dated, signed and delivered at Nairobi this 14th day of December 2016.
R.E.ABURILI
JUDGE
In the presence of:
Miss Awuor h/b for Prof Tom Ojienda-Applicant
N/A for the Respondent
CA: Lorna