Lubulellah & Associates Advocates v Okemwa [2022] KEHC 14938 (KLR)

Lubulellah & Associates Advocates v Okemwa (Miscellaneous Civil Application 44 of 2017) [2022] KEHC 14938 (KLR) (Civ) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14938 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application 44 of 2017

JN Mulwa, J

November 8, 2022

Between

Lubulellah & Associates Advocates

Applicant

and

John Allan Okemwa

Respondent

Ruling

1. By a Notice of Motion dated May 12, 2021 brought under Section 51(2) of the Advocates Act, Sections 1A, 1B & 3A, and 63(e) of the Civil Procedure Act and Order 51 of the Civil Procedure Rules,the Applicant seeks the following orders:1. That the court be pleased to order that the amount certified on the certificate of taxation dated April 28, 2021 in the sum of Kshs. 100,433. 00/- be entered as a Judgment and decree of this Court in favour of the Applicant.

2. That the judgment on the taxed costs do attract interest at the rate of 14% per annum from the date of the Bill of costs being November 18, 2016 until payment in full.

3. That a Decree be issued in respect of the Judgment and accrued interest thereon at the rate of 14% per annum from the 18th day of November 2016 until payment in full and that the Applicant be at liberty to execute for recovery of the same in such manner as a Decree of this Honorable Court.

4. That the costs of this Application be provided for.

2. The application is supported by an Affidavit sworn by Eugene Lubale Lubulellah, an Advocate from the Applicant firm.

3. The application is not opposed.

4. Upon being served with the instant application, the Respondent filed an application dated June 16, 2021 in which it sought an extension of time to file a reference against the decision of the taxing officer. The said application was struck out by Justice Meoli J in a ruling delivered on April 28, 2022. To date, no response has been filed by the respondent.

5. Section 51(2) of the Advocates Act gives this court the mandate to enter judgment for taxed costs. It provides 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."

6. In Lubulellah & Associates Advocates v N K Brothers Limited [2014] eKLR the Court stated as follows-“The law is very clear that once a taxing master has taxed the costs, issued a Certificate of costs and there is no reference against his ruling or there has been a ruling and a determination made and not set aside and/or altered, no other action would be required from the court save to enter judgment. An applicant is not required to file suit for the recovery of costs. The certificate of costs is final as to the amounts of the costs and the court would be quite in order to enter judgment in favour of the Applicant against the Respondent herein for the taxed sum indicated in the Certificate of Taxation ...”

7. Since the Certificate of Taxation dated April 28, 2021 has not been set aside or altered by this court, the sums certified thereon are final and there is nothing to prevent the court from entering judgment for the Applicant on the taxed costs.

8. On the issue of interest, Rule 7 of the Advocates (Remuneration) Order stipulates that:-“An advocate may charge interests at 14% per annum on his disbursement and costs whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, provided such claim for interests is raised before the amount of the bill has been paid or tendered in full.”

9. In Muri Mwaniki & Wamiti Advocates v John Ngigi Nganga & another [2014] eKLR, Gikonyo J. stated as follows:“My understanding of Rule 7 of the Advocates Remuneration Order is that interest is chargeable from the expiration of one month from delivery of the bill of costs by the advocate to the client but before the amount of the bill has been paid or tendered in full. The reference point is delivery of the bill. Evidence of delivery is necessary. There are two inextricable conditions here; that the bill should have been delivered and not paid within one month thereof. That means that if the amount of the bill is paid before expiry of one month from its delivery, no interest shall be payable under the bill. To my mind, Rule 7 of the Advocates Remuneration Order does not refer to the Certificate of Costs but the bill of costs. However, each case should be decided on its merits and circumstances.”

10. There is on record an Affidavit of Service sworn by one Josephat Kutekha Katikwi filed in court on May 18, 2017 (See annexture “ELL2” to the Applicant’s Replying Affidavit in response to the Respondent’s application dated June 16, 2021). It was deponed that the Applicant’s Advocate-Client Bill of Costs dated November 21, 2016 was served on the Respondent herein on March 30, 2017 which was the date of delivery of the Bill to the client within the meaning of Rule 7 of the Advocates Remuneration Order. The one month envisaged in the said provision lapsed on 30th April 2017.

11. Accordingly, I enter judgment for the Applicant in the sum of Kshs. 100,433. 00/-, together with interest thereon at 14% per annum, calculable from April 30, 2017. The costs of the application dated May 12, 2021 are awarded to the Applicant.Orders accordingly.

DELIVERED DATED AND SIGNED AT NAIROBI THIS 8TH DAY OF NOVEMBER, 2022. J. N. MULWAJUDGE