Kinyua & Maingi & Co Advocates v Trident Insurance Co. Limited [2024] KEHC 13757 (KLR)

Kinyua & Maingi & Co Advocates v Trident Insurance Co. Limited (Miscellaneous Application E336 of 2023) [2024] KEHC 13757 (KLR) (6 November 2024) (Ruling)

Neutral citation: [2024] KEHC 13757 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Application E336 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. 94,140/= 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.E1248 of 2021 Sammy Wainaina Ng’ang’a vs Car & General (Trading) Limited, Daniel Omeke and Patrick Mutuku Musyoki but the Respondent failed to pay the legal fees and that prompted that Applicant to file the Bill of Costs dated 21st September 2023.

3. That Bill was eventually taxed at Kshs. 94,140/= and a Certificate of Taxation dated 3rd April 2024 issued to that effect.

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

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

7. The annextures to the Affidavit reveal that indeed the Applicant herein was duly instructed by the Respondent to act for the Defendants and did act for them in the stated suit.

8. Despite being served with the Bill of Costs dated 21st September 2023 and also with the Taxation Notice dated 6th October 2023, the Respondent did not respond. The Bill of Costs was duly taxed at Kshs.94,140/= vide the Taxing Officer’s ruling delivered on 6th February, 2024.

9. 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.”

10. 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. The taxed costs are therefore considered as final.

11. The Applicant is entitled to interest as provided for under paragraph 7 of the Advocates (Remuneration) Order thus:-“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.”

12. 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. 94,140/=.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.3Costs of the application are awarded to the Applicant.

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