Cicilio Murango Mwenda t/a Murango Mwenda & Co. Advocates v County Government of Isiolo [2017] KEHC 7164 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

MISCELLANEIOUS APPLICATION CAUSE NO. 47 OF 2016

CICILIO MURANGO MWENDA

T/A MURANGO MWENDA & CO. ADVOCATES  ……… PLAINTIFF

VERSUS

COUNTY GOVERNMENT OF ISIOLO …….……………. DEFENDANT

JUDGMENT

1. Before me is a Motion on Notice dated 17th November, 2016 taken out by Cicilio Murango Mwenda t/a Murango Mwenda & Co. Advocates (hereinafter “the Applicant”).  The same is brought under Section 52 (2) of the Advocates Act and seeks judgment against Isiolo County Government (“The Respondent”) for KShs.2,149,975/= in terms of a Certificate of Taxation dated 22nd September, 2016.

2. The Motion is supported by the Affidavit of Cicilio Murango Mwenda sworn on 21st November, 2016.  The grounds for the Motion are that the Applicant is an Advocate of this Court who had filed a bill of costs dated 31st May, 2016 against the Respondent; that the said bill of costs was taxed on 15th September, 2016 in his favour at KShs.2,149,975/=.  A Certificate of Costs was subsequently issued on 22nd September, 2016 in respect thereof which was duly sent to the Respondent.  The said certificate of costs has neither been set aside nor altered. That despite as aforesaid, the Respondent has not settled the sum certified or any sum at all.  The Applicant therefore prays for judgment in terms of the said certificate of costs.  The Applicant did file submissions and relied on the cases of Kithi & Company Advocates v Menengai Downs Ltd [2015] eKLR and Nderitu & Partners Advocates v Mamuka Valuers (Management) Ltd [2006] e KLR which I have carefully considered.

3. Section 51 (2) of the Advocates Act provides:-

“(2)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 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 judgment be entered for the sum certified to be due with costs.”

4. It wouldseemthat from  the  said provision,  all  that  an Advocate has to show is that there is a bill of costs which has been  taxed  and a certificate of costs issued in respect thereof; that  the  said  certificate has  not been altered or set aside by the  court  and  that  there  is no  dispute  as to retainer.  On proving  the  foregoing,  an Advocate  is  entitled to judgment on the amount contained in the certificate plus costs.

5. In  the  present  case,  I have seen a Bill  of  Costs  dated  31st May, 2016. The  same  was taxed at KShs.2,149,975/= and a certificate  of  costs  in respect  thereof  issued  by  the taxing master  on  22nd  September,  2016. Vide  a  letter  dated 30th September,  2016,  the  Advocate  sent  a copy  of the saidcertificate  of  costs  to  Ms. Okubasu & Munene Advocates forthe Respondent and demanded settlement of the amount certified.  In his supporting Affidavit sworn on 21st November, 2016, Cicilio Murango swore that not only had the said certificate not been altered or set aside by the court, but that no payment in respect thereof had been received.

6. As  held  in  the  cases  of  Kithi  and Company Advocates v Menengai  Downs  Limited (Supra)andNderitu & Partners Advocates v Mamuka Valuers (Management) Ltd (Supra), if there  is  no  dispute  as  to retainer, once an Advocate proves that  costs  had  beencertified  and  the  certificate remained unaltered  or  was  yet  set to be aside, the Advocate is entitled to judgment.  Inthepresent  case,  the  certificate  of  costs remains intact  and unaltered.  There is nothing on record to show  that  retainer  is  disputed.To the contrary, there is on record  a  letter  from  the  Defendant  dated  21st  May, 2015 instructing  the  Advocate  to  proceed  acting  for  it. The avermentsofthe  Advocatein  his Supporting  Affidavit remain uncontroverted.

7. In  the  circumstances,  the  Advocate  has  proved that  he  is entitled to judgment on the amount certified in the Certificate ofCostsdated22nd  September,  2016. Accordingly,the application is allowed.Judgment  is  hereby entered for the Applicant  against  the  Respondent for KShs.2,149,975/=.  In terms  of  Rule  7  of  the Advocates Remuneration Order, I award  interestonthe  decretal  sum at the rate of 14% per annum.On recordisaletterdated29th March,  2016 delivering to the Respondent a block bill.  Under Rule 7 of the Advocates Rules,  therateof14%interest applies to the decretal  sum 30 days from  the  date  of  service of  the block  bill.  Inthis regard, decretal sum shall attract interest from 29th April, 2016 until payment in full.  The Advocate shall also have the costs of the suit.

It is so decreed.

DATED AND DELIVERED AT MERU THIS 15TH DAY OF MARCH, 2017.

ALFRED MABEYA

JUDGE