B.M Mung’Ata & Co. Advocates v Kyambi [2022] KEHC 2976 (KLR)

B.M Mung’Ata & Co. Advocates v Kyambi (Miscellaneous Civil Application 414 of 2017) [2022] KEHC 2976 (KLR) (6 June 2022) (Judgment)

Neutral citation: [2022] KEHC 2976 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Civil Application 414 of 2017

GV Odunga, J

June 6, 2022

IN THE MATTER OF ADVOCATES ACT AND IN THE MATTER OF ADVOCATE & CLIENT BILL OF COSTS BETWEEN

Between

B.M Mung’Ata & Co. Advocates

Applicant

and

John Wambua Kyambi

Respondent

Judgment

1. By a Motion on Notice dated 21st October, 2021, the applicant herein seeks an order that judgement be entered for him, and a decree do issue for the taxed costs of Kshs 211,315/=. He also seeks that provision be made for the costs of the application.

2. In a rather brief affidavit sworn by Douglas Muumbi, an advocate of the High Court practicing in the applicant’s firm, an affidavit which did not set out the background of the matter, upon the conclusion of the matter, a Bill of Cost was filed, taxed and Certificate of Taxation given on 24th July, 2018 and the said certificate was exhibited.

3. According to the deponent, the respondent has refused to honour or settle the taxed amount hence the application. He therefore prayed for judgement to be entered against the Respondent and a decree be issued in the sum claimed with costs.

4. The application was however opposed by an affidavit sworn by John Wambua Kyambi who deposed that his father engaged the applicant firm o represent him at an agreed fees of Kshs 100,000/-. According to him, his said father paid a sum of Kshs 65,000/- and receipts were duly issued with the mode of payment for the balance being agreed between his said father and the applicant and which amount was duly paid as agreed.

5. By a further affidavit, the deponent of the supporting affidavit declined that there was an agreement on fees at Kshs 100,000/= or that there was an arrangement to recover fees as alleged. He averred that the matter proceeded for taxation and any sums paid were taken into account by the taxing officer hence the matter cannot be raised at this point again. According to the deponent, the taxation is not under challenge, there is no reference and the issues the respondent is raising were raised and/or should have been raised before the taxing officer. It was therefore his view that this court is devoid of jurisdiction to consider the issues the respondent is raising now since this is not a reference.

6. Section 51(2) of the Advocates Act stipulates 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 recovered thereby; and the court may make such order in relation thereto as it thinks fit, including where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.

7. In my view there are conditions set down under the said provision for the entry of judgement. In order for the same to be entered, the Applicant/Advocate ought to satisfy the court that there is in existence a certificate of the taxing officer by whom any bill has been taxed which certificate has not been set aside or altered by the court. Secondly, the advocate ought to satisfy the court that retainer is not disputed. Where, therefore, retainer is disputed judgement may not be entered until such time as the issue of retainer is determined since the absence of a retainer is a defence in such proceedings. That defence however must be bona fide if the court is to disentitle the advocate from enjoying his costs duly taxed.

8. It is therefore my view that the affidavit in support of the application for judgement to be entered in terms of the certificate of costs ought to aver that there is a certificate of costs and that retainer is not in dispute. It was therefore held in Oruko and Associates vs. Brollo Kenya Ltd [2003] 1 EA 234 that:“Whereas under section 51(2) of the Advocates Act (Chapter 16) a certificate of the taxing master is final, it is only final as to the amount of the costs and judgement under the said section can only be entered where there is proof of a retainer and the retainer is not disputed. The subsection does not entitle an applicant to a Judgement in any other situation.”

9. In this case, as stated hereinabove, the affidavit in support of the application was rather economical. Apart from an averment that there exists the said certificate, it was silent as to the aspect of retainer. However, in the replying affidavit the Respondent admitted that his father instructed the applicant to represent him in the matter though he says that the agreed fees was Kshs 100,000/- which the Respondent’s father duly paid.

10. In the absence of evidence of any payment made and in light of the admission of the existence of advocate/client relationship and as there is a certificate of costs duly issued by the taxing officer, on the authority of Mbai & Kibuthu Advocates vs. Mbo-I-Kamiti Farmers Company Limited Nairobi (Milimani) HCMA No. 659 of 2004, I allow this application and enter judgement in the sum of Kshs 211,315/=.

11. I however hold that each party bears own cost of the application.

12. It is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 6THDAY OF JUNE, 2022. G V ODUNGAJUDGEDelivered in the presence of:Mr Muumbi for the ApplicantThe Respondent present in personCA Susan