[2018] KEHC 4805 (KLR)
The court held that under Section 51(2) of the Advocates Act, once a certificate of taxation has been issued and there is no dispute as to the retainer or the amount certified, the advocate is entitled to judgment for the taxed costs in the same miscellaneous application file. The court found that the applicant had...
Source-derived case information.
- Citation
- [2018] KEHC 4805 (KLR)
- Parties
- Applicant: V. Chokaa & Co. Advocates; Respondent: County Government of Mombasa as successor of Municipal Council of Mombasa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 223 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Entry of Judgment After Taxation of Costs
- Outcome
- applications allowed; judgment entered for applicant in both consolidated matters
- Judges
- AW Mwangi
- Legal Topics
- Advocate Costs Taxation, Entry of Judgment, Certificate of Taxation, Retainer Dispute, Execution of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
V. Chokaa & Co. Advocates
Applicant
County Government of Mombasa as successor of Municipal Council of Mombasa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Entry of Judgment After Taxation of Costs
Legal Issues
- 1 Whether the applicant is entitled to entry of judgment for taxed costs under Section 51(2) of the Advocates Act.
- 2 Whether a fresh suit is required for enforcement of a certificate of taxation or judgment can be entered in the same miscellaneous application file.
- 3 Whether there is any dispute as to the retainer or the amount certified in the certificate of taxation.
Ratio Decidendi
The court held that under Section 51(2) of the Advocates Act, once a certificate of taxation has been issued and there is no dispute as to the retainer or the amount certified, the advocate is entitled to judgment for the taxed costs in the same miscellaneous application file. The court found that the applicant had properly moved for entry of judgment, as there was no dispute as to the retainer, no reference had been filed, and the certificates of taxation had not been set aside. The court rejected the respondent's argument that a fresh suit was required, finding that the cited authority was not binding and that the statutory framework and persuasive authorities supported the applicant's...
Court Disposition
applications allowed; judgment entered for applicant in both consolidated matters
Orders
- Judgment entered in favour of the applicant against the respondent in Mombasa High Court Miscellaneous Application No. 223 of 2014 for Kshs. 291,292.00 with interest at 14% per annum and costs.
- Judgment entered in favour of the applicant against the respondent in Mombasa High Court Miscellaneous Application No. 230 of 2014 for Kshs. 420,877.00 with interest at 14% per annum and costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISCELLANEOUS APPLICATION NO. 223 OF 2014 CONSOLIDATED
WITH MOMBASA HIGH COURT MISCELLANEOUS
APPLICATION NO. 230 OF 2014
V. CHOKAA & CO. ADVOCATES .....................................APPLICANT
VERSUS
COUNTY GOVERNMENT OF MOMBASA as a successor of
MUNICIPAL COUNCIL OF MOMBASA.....................RESPONDENT
RULING
1. Mombasa High Court Miscellaneous Application No. 223 of 2014 was consolidated with Mombasa High Court Miscellaneous Application No. 230 of 2014 on 9thOctober, 2017, with the lead file being the one for Mombasa High Court Miscellaneous Application No. 223 of 2014.
2. The two applications are dated 23rd January, 2017. Ms. Kimuli, Learned Counsel for the applicant submitted that in Mombasa High Court Miscellaneous Application No. 223 of 2014, the applicant was seeking orders for Judgment to be entered against the respondent for the sum of Kshs. 291,292. 00 with interest at 14% per annum and costs. She stated that a certificate of taxation dated 18th August, 2016 was attached to the applicant's supporting affidavit sworn on 23rd January, 2017.
3. In Mombasa High Court Miscellaneous Application No. 230 of 2014, Counsel for the applicant indicated that she was seeking entry of Judgment in the sum of Kshs. 420,877. 00 with interest at 14% per annum and costs. She relied on the certificate of taxation dated 18th August, 2016 attached to the applicant's supporting affidavit sworn on 23rd January, 2017.
4. Mr. Kiti, Learned Counsel for the respondent opposed the applications and relied on the grounds of opposition dated 9th October, 2017 contained in each of the two files. In his view, there was no legal basis for the present applications as fresh causes should have been filed. He submitted that the applications herein should not have been filed in the same files which the Deputy Registrar dealt with when taxing the bills of cost. This was for the reason that the applications that she dealt with are spent and cannot be converted into suits from which Judgments can be obtained.
5. Mr. Kiti cited Kisii Environment and Land Miscellaneous Application No. 247 of 2012, Cyrus Minda t/a Minda & Co. Advocates vs Yunes Kerubo Oruta, where the Judge held on page 2, that a Miscellaneous Application upon which a Deputy Registrar taxed the bill of costs became spent and could not form the basis of a suit.
6. In response to the foregoing submissions, Ms. Kimuli submitted that the decision relied upon by Counsel for the respondent was not binding to this court. She urged the court to look at the merits of the applications and make a decision guided by the law. She prayed for the applications to be allowed.
7. I have perused the proceedings before the Deputy Registrar and noted that the bills of cost were taxed on 15th of August, 2016 by consent of the parties hereto.
8. Sections 48 and 49 of the Advocates Act require that a suit be filed and a decree issued before an Advocate can execute for his costs. Section 51(2) of the said Act provides that 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 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 a Judgment be entered for the sum certified to be due with costs.
9. The present applications are anchored on the provisions of Section 51(2) of the Advocates Act. It is therefore my finding that the applicant has properly moved this court for entry of Judgment in the same files wherein the Deputy Registrar taxed the bills of cost. There is no dispute as to the retainer herein and no reference has been filed and none of the two bills of cost have been set aside. I am persuaded by the decisions in Gachiri Kariuki and Company Advocates vs Invesco Assurance Company Limited [2014] eKLR and Lubullelah and Associates Advocates vs N.K. Brothers Ltd. [2014] eKLR.
10. I am not persuaded by the authority cited by Counsel for the respondent that the applicant should have filed fresh suits to recover his costs on applications that are clearly grounded on the provisions of Section 51(2) of the Advocates Act.
11. The sum total of the foregoing is that I allow the said applications and make the following orders:-
(i) In Mombasa High Court Miscellaneous Application No. 223 of 2014, I enter Judgment in favour of the applicant as against the respondent in the sum of Kshs. 291,292. 00, with interest at 14%. Costs are awarded to the applicant; and
(ii) In Mombasa High Court Miscellaneous Application No. 230 of 2014, I enter Judgment in favour of the applicant as against the respondent in the sum of Kshs. 420,877. 00, with interest at 14%. I also award costs to the applicant.
It is so ordered.
DELIVERED, DATED and SIGNED at MOMBASA on this 6th day of April, 2018.
NJOKI MWANGI
JUDGE
In the presence of:-
Mr. P. Magolo holding brief for the applicant
Mr. Masila holding brief for Mr. Mwangunya for the respondent
Mr. Musundi - Court Assistant