[2022] KEHC 86 (KLR)

Tom Ojienda & Associates v Nairobi City County (Miscellaneous Application E620 of 2019) [2022] KEHC 86 (KLR) (Commercial and Tax) (4 February 2022) (Ruling)

Neutral citation number: [2022] KEHC 86 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Miscellaneous Application E620 of 2019

A Mshila, J

February 4, 2022

Between

Tom Ojienda & Associates

Applicant

and

Nairobi City County

Respondent

Ruling

1. The Notice of Motion Application dated 16th July 2020 is brought under Section 51(2) of the Advocates Act and Rule 7 of the Advocates (Remuneration) Order, the Applicant seeks the following orders;a.The Court enters judgment for the Applicant against the Respondent for the sum of Kshs.10, 804,514 as appears on the Certificate of Taxation dated 9th June 2020 with interest from the date of filing this Application until payment in full.b.The Applicant be allowed to execute the judgment herein against the Respondent, Nairobi City County.

2. The Application is premised on the grounds on the face of the application and on the Supporting Affidavit made on the same date by Prof. Tom Ojienda SC who deponed that the Taxing Officer taxed the Bill of Costs dated 29th November 2019 at Kshs.10, 804,514 in a Ruling delivered on 26th May 2020. The Taxing Officer issued a Certificate of Taxation dated 9th June 2020 in favour of the Applicant for the sum of Kshs.10, 804,514/-.

3. The Applicant also stated that he is entitled to charge interest at 14% per annum as per the Advocates (Remuneration) Order from 8th February 2020 one month from the date the Applicant tendered his Bill of Costs to the Client until payment in full.

4. As the application and the retainer were uncontested and no appeals had been filed or the Certificate of Costs set aside the applicant prayed that judgment be entered as prayed.

Issues For Determination 5. After reading the supporting affidavit filed herein this court finds only one issue for determination which is whether the conditions of Section 51(2) of the Advocates Act have been satisfied.

Analysis 6. The Applicant filed an Affidavit of Service dated 21st October 2021 by Kyalo Kamina proving that the Respondent was served with the hearing Notice of the Application herein. The Respondent, although served, did not attend or send a representative for the hearing of the motion. The Application is therefore not opposed.

7. The applicable law is found at Section 51(2) of the Advocates Act which reads as follows;“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.”

8. The above mentioned provision was reiterated in the case of Musyoka &Wambua Advocates versus Rustam Hira Advocate (2006) eKLRwhere 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 altered, 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......

9. The procedure provided in Section 51(2) of the Advocates Act aids expeditious disposal of cases relating to recovery of advocate-client costs as long as:a.the costs have been taxed by and certified under the hand of the taxing master by a Certificate of Costs;b.the Certificate of Costs has not been set aside or stayed or appealed against on a reference filed upon it; andc.there is no dispute on retainer. In such case, judgment is ordinarily entered in the sum in the Certificate of Costs upon application by the advocate.

10. The Court takes into consideration that the Certificate of Taxation dated 9th June 2020 has not been set aside or impugned by this court.

11. This position was reiterated in Lubulellah & Associates Advocates versus N K Brothers Limited [2014] eKLRwhere the court observed that;“The law is very clear that once a taxing master has taxed the costs, issued a Certificate of costs and there is no reference against his ruling or there has been a ruling and a determination made and not set aside and/or altered, no other action would be required from the court save to enter judgment. An applicant is not required to file suit for the recovery of costs. The certificate of costs is final as to the amounts of the costs and the court would be quite in order to enter judgment in favour of the Applicant against the Respondent herein for the taxed sum indicated in the Certificate of Taxation that was issued on 25th November 2012. ”

12. From the material placed before it this court finds that this is a suitable case for it to exercise its discretion in favour of the Applicant and therefore proceeds to enter judgment against the Respondent for the certified sum;

13. On the issue of interests on the taxed costs; even though the application is uncontested the Applicant has not tendered any evidence that it raised the issue of interest with its client when tendering the Bill of Costs and is therefore found to have failed to have satisfied the conditions as set out in Rule 7 of the Advocates (Remuneration) Order which stipulates that:“An advocate may charge interest at 14% per annum on his disbursements and costs, whether by scale or otherwise, from the expiry to one month from the delivery of his bill to the client, providing such claim for interest is raised before the amount has been paid or tendered in full.”

14. In any event the Rule clearly stipulates that such claim for interest is limited to costs and disbursements; it does not provide for interest on the full taxed amount as prayed for by the applicant in its application.

15. For those reasons, the claim for interest at 14% on the sum of Kshs.10, 804,514/- from 9/06/2020 until payment in full is hereby disallowed. The Applicant is awarded interest at court rates only on the costs and disbursements from the date of taxation.

16. Needless to state that, execution or attachment enforcing the decree can only be in accordance with the provisions Section 21(4) of the Government Proceedings Act Cap 40 Laws of Kenya. Therefore, this prayer is found to be premature and improper.

Findings And Determination 17. In the light of the foregoing this court makes the following findings and determinations;i.The application is found to be partially meritorious;ii.The Taxation Order made on 9th June, 2020 for the sum of Kshs.10,804,514/- be and is hereby adopted as a judgment and decree of the Court.iii.The claim for interest shall be only on the disbursement and costs and shall be at court rates from the date of taxation till payment in full.iv.The prayer for execution of the decree is found to be premature and improper and it is hereby disallowed.v.There shall be no order as to costs.Orders Accordingly.

DATED SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 4THDAY OF FEBRUARY, 2022. HON. A. MSHILAJUDGEIn the presence of;Mr. Ochieng holding brief for Prof. Ojienda for the ApplicantNo appearance for the RespondentLucy-------------------Court Assistant