Kinyanjui Njuguna & Company Advocates v Xplico Insurance Company Limited [2022] KEHC 16976 (KLR)

Kinyanjui Njuguna & Company Advocates v Xplico Insurance Company Limited (Miscellaneous Application 230, 228, 229, 232, 234 & 235 of 2019 (Consolidated)) [2022] KEHC 16976 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16976 (KLR)

Republic of Kenya

In the High Court at Naivasha

Miscellaneous Application 230, 228, 229, 232, 234 & 235 of 2019 (Consolidated)

GWN Macharia, J

December 15, 2022

Between

Kinyanjui Njuguna & Company Advocates

Applicant

and

Xplico Insurance Company Limited

Respondent

Ruling

The application 1. The application for consideration is the applicant’s notice of motion dated March 23, 2022 brought under section 51(2) of the Advocates Remuneration Order, order 51 rule 1 of the Civil Procedure Rules, 2010. The applicant seeks a consolidation of the various applications listed on the title with respect to the Advocate/Client Bills of Cost and to have judgment entered in its favour against the Respondent for various sums being the certified costs due to it as against the respondent. The applicant also seeks costs of the applications together with interests at 14% per annum from February 25, 2019 on the taxed sums.

2. The Applicant’s costs were taxed as follows:i.Miscellaneous Application number 230 of 2019…..Kshs. 77,717. 00ii.Miscellaneous Application number 232 of 2019…Kshs. 107,116. 00iii.Miscellaneous Application number 234 of 2019….Kshs. 181,376. 00iv.Miscellaneous Application number 235 of 2019….Kshs. 244,486. 00v.Miscellaneous Application number 228 of 2019…..Kshs. 183,435. 00vi.Miscellaneous Application number 229 of 2019….Kshs. 93. 293. 00Total ………………………………… Kshs. 887,423. 00

3. The respective applications are based on the grounds on their respective faces and affidavits of one Kinyanjui Theuri, sworn on March 23, 2021.

The Applicant’s case 4. It is the Applicant’s averment that it filed its various Advocate/Client Bills of Cost which bills were eventually taxed by the court on various dates. The Bills accrued pursuant to instructions given to the Applicant by the Respondent to represent it in various matters. Instruction letters in this regard were annexed to the applications. The respondent did not settle the instructions’ fees as a result of which the Applicant drew the Bills and had them taxed. The applicant was subsequently issued with Certificates of Taxation on diverse dates for which he prays that judgment be entered and decrees issued accordingly.

5. The Applicant avers that the respondent has not opposed the applications despite being served accordingly.

Analysis and determination 6. This court having considered the applications and the respective supporting affidavits is only tasked to determine whether the provisions of section 51(2) of the Advocates Act have been satisfied. I will however first address the issue of consolidation of the applications, which was the first prayer sought by the Applicant.

7. On the prayer for consolidation, I note that the parties involved are the same in all applications. The issues are similar and give rise to the same questions of law. The consolidation therefore, was only for purposes of this ruling. It shall enhance expeditious disposal of the various applications. The court has not deviated from the laid down principles for consolidation of suits. For instance, in Law Society of Kenya vs Center for Human Rights & Democracy & 12others[2014] eKLR, the Supreme Court of Kenya held: -“The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never intended to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party who opposes it.”

8. Further, in Nyati Security Guards & Services Ltd vs Municipal Councilk of Mombasa [2000] eKLR, the court held: -“The situations in which consolidation can be ordered include where there are two or more suits for matters pending in the same court where: -a.Some common questions of law or fact arises in both or all of them.b.The rights or reliefs claimed in them are in respect of the same transactions;c.For some other reasons, it is desirable to make an order for consolidating them.”

9. On the substance of the application, Section 51(2) of the Advocates Act reads 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 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.”

10. The foregoing provision gives the Court powers to enter judgment in the sums taxed by the taxing officer. No evidence has been placed before this Court to show that the respective Certificates of Taxation have been set aside or altered or that any reference objecting to the Bills has been filed to this Court. The applications have also not been opposed.

11. Consequently, I find that the Applicant has satisfied the prerequisites laid down in section 51(2) of the Advocates Act and I enter judgment in favour of the Applicant against the Responded to the certified sums. The case of KTK to Advocates v Baringo County Government [2018] eKLR provides a guide in this regard where it was held that:“The above section in my understanding, gives the court the jurisdiction to enter judgment for taxed costs where conditions are satisfied. The first condition is that there must be a certificate of the taxing officer by whom the bill has been taxed which certificate has not been set aside or varied by the court. Secondly there must be no dispute as to the retainer. If those two conditions are satisfied, the court has a discretion to enter judgment for the sum certified to be due with costs.The above position has been upheld in numerous decisions of this among them E.W. Njeru & Co Advocates vs Zakhem Construction (K) Limited [26]a position firmly grounded on the provisions of section 51 (2) of the Advocates Act[27]which I believe is the correct exposition of the law.I find, and hold that the above two conditions have been satisfied in this case, hence there is no reason at all for this court to decline the application to enter judgement as prayed.”

Disposition 12. For all the foregoing reasons, I am satisfied that the Applicant’s application is allowed with the following orders –a.That judgment be and is hereby entered in favour of the Applicant, Kinyanjui Njuguna & Company Advocates against the Respondent Xplico Insurance Company Limited in the sum of Kshs. 887,423. 00 plus interests at court rates from the date of taxation.b.That the Respondent herein shall bear the costs of the application.

13. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 15TH DECEMBER, 2022. G.W.NGENYE-MACHARIAJUDGEIn the presence of:1. Mr. Kinyanjui for the Applicants in the consolidated applications.2. No appearance for the Respondent.