Kinyua & Maingi & Co Advocates v Trident Insurance Co Limited [2024] KEHC 13756 (KLR)

Kinyua & Maingi & Co Advocates v Trident Insurance Co Limited (Miscellaneous Application E335 of 2023) [2024] KEHC 13756 (KLR) (6 November 2024) (Ruling)

Neutral citation: [2024] KEHC 13756 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Application E335 of 2023

PN Gichohi, J

November 6, 2024

Between

Kinyua & Maingi & Co Advocates

Applicant

and

Trident Insurance Co Limited

Respondent

Ruling

1. The Applicant herein has moved this Court by a Notice of Motion application dated 10th April 2024 and brought under Section 51 (2) of the Advocates Act Cap 16 Laws of Kenya seeking orders that:-1. Judgment be entered in favour of the Applicant against the Respondent the sum of Kshs. 133,050/= being the certified costs due to the Applicant as against the Respondent .2. The Respondent does pay to the Applicant the costs of the application together with interest on the taxed sum.

2. The grounds on the face of the application and supported by the Affidavit sworn by Njoki Kinyua Advocate on 10th April, 2024 are that the Respondent instructed the firm of Kinyua & Maingi & Co. Advocates to act for the Defendant in Nakuru CMCC No.1135 of 2021 Cyrus Muchemi Mwaniki vs Francis Githwa Thuku & Lawrence Muchemi Wanjiru but the Respondent failed to pay the legal fees. This necessitated the Applicant to file the Bill of Costs which was eventually taxed at Kshs. 133,050/= and a Certificate of Taxation issued to that effect.

3. It is deponed that despite being served with the copy of the ruling and the Certificate of Taxation, the Respondent refused, failed and/or neglected to settle the taxed costs .

4. The Applicant further states that the Certificate of Taxation has not been appealed against , set aside or altered by the Respondent and therefore, it is only fair that the application be allowed as prayed.

Determination 5. Though served with this application, the Respondent did not file any response leaving the application unopposed.

6. From the annextures herein, it is evident that indeed the Applicant herein was duly instructed by the Respondent to act for the Defendants and did act for them in the suit stated herein.

7. The Respondent was duly served with the Bill of Costs dated 5th September 2023 and also with the Taxation Notice dated 6th October 2023 but there was no response. The Bill of Costs was duly taxed at Kshs. 133,050/= vide the Taxing Officer’s ruling delivered on 6th February, 2024.

8. Section 51 (2) of the Advocates Act which provides that :-“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.”

9. There has been no dispute as to the retainer and no reference in regard to the ruling on taxation. The Certificate of Taxation herein has not been set aside or altered by this Court and therefore, the taxed costs are considered final.

10. As regards interest, paragraph 7 of the Advocates (Remuneration) Order provides that:-“An advocate may charge interest at 14 per cent 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, provided that such claim for interest is raised before the amount of the bill shall have been paid or tendered in full.”

11. In the circumstances, the application dated 10th April, 2024 is allowed as follows:-1. Judgment be and is hereby entered in favour of the Applicant as against the Respondent in the sum of Kshs. 133,050/=.2. The Applicant is awarded interest on the said sum at the rate of fourteen (14%) per cent per annum calculable after Thirty (30) days from the date the Respondent was served with the Bill of Costs until payment in full.3. Costs of the application are awarded to the Applicant.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 6TH DAY OF NOVEMBER, 2024. PATRICIA GICHOHIJUDGEIn the presence of:Ms. Kinyua for the ApplicantN/A for the RespondentRuto, Court Assistant