Maina and Maina Advocates v Transpaper Kenya Limited [2022] KEHC 90 (KLR)

Maina and Maina Advocates v Transpaper Kenya Limited (Miscellaneous Application E185 of 2021) [2022] KEHC 90 (KLR) (Commercial and Tax) (4 February 2022) (Ruling)

Neutral citation number: [2022] KEHC 90 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Miscellaneous Application E185 of 2021

A Mshila, J

February 4, 2022

Between

Maina and Maina Advocates

Applicant

and

Transpaper Kenya Limited

Respondent

Ruling

1. The Applicant filed a Notice of Motion Application dated 13th August 2021 brought under Section 51(2) of the Advocates Act, Rule 7 of the Advocates (Remuneration) Order, Order 51 Rule 1 of the Civil Procedure Rules; the Applicant seeks the following orders;a.Judgment be entered against the Respondent for the sum of Kshs.180, 240 being the Advocate/Client costs as taxed on 12th July 2021 plus interest at 14% p.a from 2nd May 2021. b.The costs of this Application be borne by the Respondents.

2. The Application is premised on the grounds on the face of the application and on the Supporting Affidavit made on the same date by Gideon Mutai who deponed that the Respondent was served with the Advocate-Client Bill of Costs and Notice of Taxation dated 14th May 2021 on 14th May 2021 by way of personal email address but failed and/or ignored to file any response and/or object thereto.

3. The Advocate-Client Bill of Costs was taxed at Kshs.180, 240/- and a Certificate of Taxation issued. The said Certificate of Taxation was served upon the Respondent on 6th August 2021 and has not been set aside and/or altered.ISSUES FOR DETERMINATION

4. After reading the supporting affidavit filed herein this court finds only one issue for determination which is whether the conditions of Section 51(2) of the Advocates Act have been satisfied?ANALYSIS

5. The applicable law is found at Section 51(2) of the Advocates Act which 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.”

6. This section gives this court the jurisdiction to enter judgment provided the Bill of Costs has been taxed and the taxing master has issued a Certificate of Costs. In this instance, this has been done and the certificate has not been appealed against, set aside or altered. As noted from the court record that despite being duly served with the application, the Respondent had not filed any response stating that it disputed any retainer.

7. This position was reiterated in the case of Musyoka & Wambua Advocates Vs Rustam Hira Advocate(2006) eKLR where the court held: -“Section 51 of the Act makes general provisions as to taxation, as the marginal note indicates. One of those provisions is that the court has discretion to enter judgment on a Certificate of Taxation which has not been set aside or altered, where there is no dispute as to retainer. This in my view is a mode of recovery of taxed costs provided by law, in addition to filing of suit......”

8. All the conditions as set out in Section 51(2) of the Act have been satisfied; and the Court is satisfied that this a suitable case for it to exercise its discretion in favour of the Applicant and therefore proceeds to enter judgment against the Respondent for the sum of Kshs.180, 240/-.

9. As regards the interest rates, Rule 7 of the Advocates Remuneration Order provides as follows: -“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 such claim for interest is raised before the amount of the bill has been paid or tendered in full.”

10. The same position was reiterated in Kerongo & Company Advocates versus Africa Assurance Merchant Co. Limited[2019] eKLR where the Court held that;“An advocate who does not provide proof that he had raised the issue of interest before the amount in the Bill of Costs has been paid or tendered in full will not be paid the interest chargeable under Rule 7 of the Advocates Remuneration order. As the Advocates herein had not demonstrated that they had raised the issue of interest as aforesaid, they could not therefore be awarded interest at fourteen (14%) per cent per annum.”

11. This court has perused the email dated ‘Friday, August 6, 2021, addressed to the Respondent, at length and it is noteworthy that it has no notification of any claim for interest. Although the application is uncontested, the Applicant has not tendered any evidence that it raised the issue of interest with its client when it tendered its bill. In the absence of any notification, the Applicant is therefore found to have failed to have satisfied the conditions as set out hereinabove.

12. The claim for interest thereon at the rate of 14% from 2nd May 2021 until payment in full is not therefore not chargeable, nor is it payable and is hereby disallowed.FINDINGS AND DETERMINATION

13. In the light of the foregoing this court makes the following findings and determinations;i.The application is found to be partially meritoriousii.Judgment is hereby entered against the Respondent for the sum of Kshs.180, 240/-.iii.The claim for interest at 14% on the sum of Kshs.180, 240/- from 2nd May 2021 is hereby disallowed.iv.There shall be no order as to costs.

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 4THDAY OF FEBRUARY, 2022. HON. A. MSHILAJUDGEIn the presence of;Mr. Mwangi holding brief for Maina for the ApplicantNo appearance for the RespondentLucy-------------------------Court Assistant