Francis N. Gacathi & Co. Advocates v Hezron Soi [2021] KEHC 8086 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BOMET

MISCELLANEOUS CIVIL CASE NO. 12 OF 2020

FRANCIS N. GACATHI & CO. ADVOCATES...............................................APPLICANT

VERSUS

HEZRON SOI....................................................................................................RESPONDENT

JUDGMENT

1. By Notice of Motion dated 27th January, 2021 the Applicant sought orders that:-

(i) This Honourable court be pleased to convert the certificate of costs issued on 11th November, 2020 into decree and judgment be entered for the Applicant together with costs and interest at 14% per annum from 11th November, 2020 until payment in full.

(ii) The costs of this application be awarded to the Applicant.

2. The application is brought on the grounds that:-

(i) That plaintiff’s bill of costs was taxed by the Deputy Registrar on 28th October, 2020 for the sum of Kshs.201,186/=.

(ii) That there is no valid or competent application or reference to challenge the ruling on the bill of costs.

(iii) That Rule 7 of the Advocates (Remuneration) Order allows an Advocate to charge interest rate up to 14% per annum, on his disbursements and costs.

(iv) That the court has the jurisdiction and inherent power to hear and determine this application.

3. The application is supported by the sworn affidavit of Antonina C. Rotich advocate in which she deposes that:-

(i) That the advocate seized with the matter thus competent and authorized to swear this affidavit.

(ii) That the plaintiff’s bill of costs was taxed by the Deputy Registrar on 28th October, 2020 for the sum of Kshs.201,186/= and a certificate of costs issued on 11th November, 2020.  Copy annexed and marked “ACR-1. ”

(iii) That there is no valid or competent application to challenge the certificate of costs.

(iv) That I pray that the Honourable court enter judgment on the said stated costs.

(v) That Rule 7 of the Advocates (Remuneration) Order allows an Advocate to charge interest rate up to 14% per annum, on his disbursements and costs.

(vi) That the court has the jurisdiction and inherent power to hear and determine the application.

(vii) That it is in the best interest of justice that judgment be entered as prayed.

(viii) That all which is deponed to herein is true to the best of my knowledge, information and belief sources of which have been disclosed.

4. The application came up for hearing on 3rd March, 2021. Mr. Koech who held brief for Mr. Gacathi (Applicant) told the court that the Respondent, who was not present had been served both the application and hearing date. The court, upon perusing the affidavit of service sworn by one Ngeno Geoffrey was satisfied that the Respondent had been served but failed to attend court.  The Applicant was consequently allowed to prosecute the application.

5. In his brief submissions, Mr. Koech reiterated the grounds on the application and the averments made in the supporting affidavit, which I have already reproduced above.

6. The application is brought under Section 51 (2) of the Advocates Act which provides:-

“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.”

7. There is ample authority to show that once the taxing officer has issued a certificate of taxation, which certificate has not been challenged or altered, the role of the court is limited to entering judgment for the amount on the certificate unless there was a dispute as to retainer or a reference challenging the taxation.  See Gordon Ogola, Kipkoech & Co. Advocates Vs. Gideon Kipkoech Ngetich (2020) eKLR & Winfred Nyakundi Konosi t/a Konosi & Co. advocates Vs. Invesco Assurance Company.

8. In this case, the court record shows that the Applicant represented the Respondent in Sotik Civil Suit No.107/2017, Hezron Soi (suing as administrator of the estate of Wesley Kiprono Korir Vs. Nancy Chebet.  Taxation was done by the taxing officer on 28th October, 2020 and the certificate of costs was issued on 11th November,2020 for the amount of Two hundred and one thousand, one hundred and eight six only (Kshs.201,186/-).

9. The record also shows that the Respondent has not filed any reference challenging the taxation or disputing the retainer and neither has he challenged the application in any way.  Consequently, the only order, which commends itself to this court, is to enter judgment in favour of the Applicant for the amount stated in the certificate of costs being Kshs.201,186/- The sum shall attract interest at court rates from the date of this judgement until payment in full.

10. Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 31ST DAY OF MARCH, 2021.

................................

R. LAGAT-KORIR

JUDGE

JUDGEMENT DELIVERED ELECTRONICALLY TO THE PARTIES AND IN THE PRESENCE OF KIPROTICH (COURT ASSISTANT).