[2007] KEHC 725 (KLR)
The court found that the Advocate had established the issuance of a certificate of taxation, that the certificate had not been set aside or altered, and that there was no dispute as to retainer. The client did not attend the taxation or contest the application. The court held that under Section 51(2) of the...
Source-derived case information.
- Citation
- [2007] KEHC 725 (KLR)
- Parties
- Applicant: Wakini Kiarie & Co. Advocates; Respondent: Invesco Assurance Company Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 468 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
- Outcome
- Judgment entered for the Advocate as prayed.
- Legal Topics
- Advocate Remuneration, Taxation of Costs, Certificate of Taxation, Judgment on Taxed Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wakini Kiarie & Co. Advocates
Applicant
Invesco Assurance Company Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
Legal Issues
- 1 Whether the Advocate is entitled to judgment on the taxed costs as per the certificate of taxation.
- 2 Whether there is any dispute as to retainer between the Advocate and the client.
- 3 Whether the certificate of taxation has been set aside or altered by the court.
Ratio Decidendi
The court found that the Advocate had established the issuance of a certificate of taxation, that the certificate had not been set aside or altered, and that there was no dispute as to retainer. The client did not attend the taxation or contest the application. The court held that under Section 51(2) of the Advocates Act, the certificate of taxation is final as to the costs due to the Advocate. Consequently, judgment was entered for the Advocate in the sum certified, with interest at court rates and costs of the application.
Court Disposition
Judgment entered for the Advocate as prayed.
Orders
- Judgment is entered for the Advocate against the client in the sum of KShs.44,976.40 with interest at court rates.
- The client shall pay the costs of the application.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI (MILIMANI COMMERCIAL COURTS)
MISC APPL468 OF 2007
WAKINI KIARIE & CO. ADVOCATES……………....…………………... APPLICANT/APPLICANT
VERSUS
INVESCO ASSURANCE COMPANY LTD………………..……..……….CLIENT/RESPONDENT
RULING
The application has been brought by WAKINI KIARIE & COMPANY ADVOCATES, hereinafter referred to as Advocate, against the INVESCO ASSURANCE CO. LTD hereinafter referred to as the client. It is a Notice of Motion brought under the provisions of Order L rule 1 of Civil Procedure Rules and Section 51 (2) of the Advocates Act and Rules of the Advocates (Remuneration) order. It seeks Judgment for the Advocate against the client in the sum of KShs.44,976. 40/= with interest at court rates and costs of the application. Three grounds are cited on the face of the application which are that there is no stay of execution in place, the Advocates Bill has not been paid and the certificate of taxation has not been set aside.
There is a supporting affidavit in which the Advocate depones that on the 10th September, 2003 the client instructed the Advocates’ firm to act for them in CMCC NO.9045/03 NAIROBI JUSTUS NYAMWEYA MOSOTI VS PETER WAIYALE SIMIYU. The Advocates continues to depone that in November 2005, the client declined to pay the fee note presented to it by the Advocate following which they presented it for taxation. The Advocate continues to depone that the bill was taxed on 18th May, 2007 at KShs.44,976. 40/= and the certificate of taxation issued. It is annexed as “JWLI9”. The Advocate depones that there is no dispute as to retainer.
Mrs. Ngugi urged the application on behalf of the Advocate. The client was unrepresented and it filed no papers despite being served with notice of the hearing.
I have considered the application. Under Section 51 (2) of Advocates Act, the Advocate should establish that a certificate of the Taxing Officer by whom then bill was taxed has been issued, that the said certificate of taxation has not been set aside or altered by the court; and that the retainer is not in dispute.
The Advocate has annexed the certificate of taxation. It has not been shown to have been set aside, varied or altered by the court. I note from the file that the client did not attend the taxation before the Taxing Officer. The Taxing Officer satisfied himself that there was no dispute as to retainer when he called for the proceedings of the case in which the Advocate represented the client. There is therefore no dispute as to retainer. The Certificate of taxation is therefore final as to the costs due to the Advocate. Having come to this conclusion I enter Judgment for the Advocate as prayed for in the Notice of Motion dated 6th August, 2007 in the sum of Kshs.44,976. 40/= with interest at court rates and costs of the application.
Dated at Nairobi this 2nd day of November, 2007.
LESIIT
JUDGE
Read, signed and delivered in the presence of:
LESIIT
JUDGE