[2017] KEHC 2114 (KLR)
The court found that there was no dispute as to the advocate's retainer and that the certificate of taxation had not been set aside or altered. In accordance with Section 51 of the Advocates Act and the cited case law, the court held that judgment should be entered for the advocate for the taxed costs. The court...
Source-derived case information.
- Citation
- [2017] KEHC 2114 (KLR)
- Parties
- Applicant: Otieno Yogo & Company Advocates; Respondent: UAP Provisional Insurance Company Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 210 of 2016
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Judges
- TW Cherere
- Legal Topics
- Advocate Remuneration, Taxation of Costs, Certificate of Taxation, Interest on Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Otieno Yogo & Company Advocates
Applicant
UAP Provisional Insurance Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the certificate of costs should be adopted as a judgment and decree of the court.
- 2 Whether the applicant is entitled to interest at 14% per annum from 17.2.17 until payment in full.
- 3 Whether the costs of the application should be borne by the client.
Ratio Decidendi
The court found that there was no dispute as to the advocate's retainer and that the certificate of taxation had not been set aside or altered. In accordance with Section 51 of the Advocates Act and the cited case law, the court held that judgment should be entered for the advocate for the taxed costs. The court further held that interest at 14% per annum was applicable from 30 days after the bill was delivered to the client, as provided by Rule 7 of the Advocates Remuneration Order. Since the bill was received by the respondent on 17.1.17, interest accrues from 17.2.17 until payment in full. The application was unopposed, and the applicant was also awarded the costs of the application.
Court Disposition
application allowed
Orders
- Judgment entered for the advocate against the respondent for Kshs. 128,232.30.
- Interest to accrue on the taxed costs at 14% per annum from 17.2.17 until payment in full.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. CIVIL APPLICATION NO 210 OF 2016
OTIENO YOGO & COMPANY ADVOCATES.....................APPLICANT/ADVOCATE
VERSUS
UAP PROVISIONAL INSURANCE COMPANY LIMITED.....RESPONDENT/CLIENT
JUDGMENT
By a notice of motion dated 23. 10. 17, brought under Section 51 of the Advocates Act Cap 16 Laws of Kenya; the applicant prays for orders:-
1. THAT the certificate of costs dated 3. 3.17 in respect of taxation order made on 23. 2.17 for the sum of Kshs. 128,232. 30 be adopted as judgment and decree of this Honourable Court
2. Applicant be awarded interest accrued on the costs at 14% p.a from 17. 2.17 until payment in full
3. THAT the costs of this application be borne by the client
The motion is premised on the grounds on the body of the application and the supporting affidavit of Erick Ojuro, Advocate of the High Court of Kenya, sworn on 23. 10. 17. He avers that the client instructed the advocate to act for it in Nyando SRMCC No. 248 Of 2003 Elly B. OwitiNdege V United Millers Ltd. That the bill of costs in respect of services rendered was taxed on 23. 2.17 for the sum of Kshs. 128,232. 30and a certificate of taxation was issued for the said sum. That the client has not paid the said amount and the applicant requests for judgment for the entire sum.
When the application came for hearing on 15. 11. 17, the respondent, though served, did not send a representative. The application is therefore not opposed.
In the case of Musyoka&Wambua Advocates VsRustamHira 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 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......
In the present case, there is no allegation that the Advocate had no instructions to act for the client in Nyando SRMCC No. 248 Of 2003 Elly B. OwitiNdege V United Millers Ltdfor which costs were taxed and so, there is not, and there cannot be, a dispute as to retainer. As it stands now the Certificate of Taxation has not been set aside or altered. In the circumstances, I see no reason to deny the Advocate, judgment as sought.
I have considered the provisions of Rule 7 of the Advocates Remuneration Order which provides: -
“An advocate may charge interest at 14% per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, providing such claim for interest is raised before the amount of the bill has been paid or tendered in full.”
The rate of interest awardable is 14% per annum applicable from 30 days after the date of service of either the Bill of Costs. There is evidence that the bill of costs was received by the respondent on 17. 1.17 and thirty (30) days from the delivery of the bill to the client expired on 17. 2.17.
The upshot of this is that the notice of motion dated 23. 10. 17succeeds and is allowed in the following terms:
a)Judgment is hereby entered for the advocate against the Respondent forKshs. 128,232. 30
b)Interest shall accrue on the taxed costs at 14% per annum from 17. 2.17until payment in full
c)The Advocate will also have the costs of this application.
DATED AND DELIVERED ON THIS16thDAY OFNovember, 2017
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
Applicant -N/A
Respondent -N/A