Alex Otieno Omaya t/a Omaya & Co. Advocate v Mumias Sugar Company Ltd [2017] KEHC 3652 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

MISC. CIVIL APPLICATION NO 151 OF 2016

ALEX OTIENO OMAYA t/a OMAYA & Co. ADVOCATE….................... APPLICANT

VERSUS

MUMIAS SUGAR COMPANY LTD..................................................RESPONDENT

JUDGMENT

By a notice of motion dated 16. 5.17 brought under Section 50(1) of the Civil Procedure Rules, the applicant prays for orders:-

1) THAT judgment be entered for the applicant against the respondent for Kshs. 414,363/-

2) Interest be charged at court rates from 25. 4.17 to the date of payment in full

3) THAT the costs of this application be provided for

The motion is premised on the grounds on the body of the application and the supporting affidavit of Alex Otieno Omaya, advocate sworn on 16. 5.17. He avers that the Advocate-Client Bill of Costs was taxed at Kshs. 414,363/-and a certificate of taxation marked AOO 1 was issued for the said sum. The application was served but was not opposed since the respondent was not represented on the hearing date.

In the case of Musyoka & Wambua Advocates Vs Rustam Hira 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 the matter 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.

An Advocate is entitled to interest on the amount taxed on an Advocate/client Bill of Costs. The rate of interest awardable is 14% per annum applicable from 30 days after the date of service of either the Block Fee Note or the Bill of Costs. This is clearly set out in 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 no evidence to show when the bill of costs in this matter was served. The applicant prays for interest at court rates from 25. 4.17 when the bill of costs was taxed to the date of payment in full.  As stated herein above, the notice of motion dated 16. 5.17 is not opposed and it is allowed in the following terms:

a) Judgment is hereby entered for the advocate against the Respondent for Kshs. 414,363/-

b) Interest shall accrue on the taxed costs at 14% per annum from25. 4.17until payment in full

c) The Advocate will also have the costs of this application.

DATED AND DELIVERED ON THIS27thDAY OFJuly2017

T.W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant Felix

Applicant N/A

Respondent N/A