Mercy Nduta Mwangi t/a Mwangi Kengara & Company Advocates v Mwai [2022] KEHC 190 (KLR)

Mercy Nduta Mwangi t/a Mwangi Kengara & Company Advocates v Mwai (Miscellaneous Civil Application E380 of 2021) [2022] KEHC 190 (KLR) (Civ) (11 March 2022) (Ruling)

Neutral citation: [2022] KEHC 190 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Miscellaneous Civil Application E380 of 2021

A Mshila, J

March 11, 2022

Between

Mercy Nduta Mwangi t/a Mwangi Kengara & Company Advocates

Applicant

and

Charles Kariuki Mwai

Respondent

Ruling

INTRODUCTION 1. The Applicant filed a Notice of Motion is dated 9th November, 2021 under Section 51(2) of the Advocates Act, Rule 7 of the Advocates (Remuneration) Order, Section 1A, 1B, 3and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules; the application is premised on the grounds on the face of the application and on the Supporting Affidavit made by MERCY NDUTA MWANGI and sought for the following orders that;a.Judgment be entered in favour of the Advocate/Applicant against the Client/Respondent in the sum of Kshs.909,225. 55 being the taxed costs as awarded in the Certificate of Taxation dated 14th October, 2021. b.The Advocate/Applicant be awarded interest on the above sum at the rate of 14% per annum from 20/02/2021 until payment in full.

THE APPLICANTS CASE 2. The Applicant deponed that the Respondent instructed the Applicant to act for him and he was served with a fee note wherein notice was duly given that any unpaid fees on the expiry of 30 days after the date of submitting the fee note would attract interest at the rate of 14% per annum until payment in full.

3. On 20th May, 2021 the Bill of Costs was taxed and allowed in the sum of Kshs.909,225. 55 and a Certificate of Taxation issued on 14th October, 2021;The Respondent neglected, failed and/or has declined to make good and to pay the demanded legal fees.

4. As the application and the retainer were uncontested and no appeal had been filed or the Certificate of Costs set aside the Applicant prayed that judgment be entered as prayed.

ISSUES FOR DETERMINATION 5. After reading the Supporting Affidavit filed herein this court finds two issues for determination which are;a.Whether the conditions of Section 51(2) of the Advocates Act have been satisfied;b.Whether the applicant be awarded interest accrued on the costs at 14% pa from 20/02/2021;

ANALYSISWhether the conditions of Section 51(2) of the Advocates Act have been satisfied; 6. Section 51(2) of the Advocates Act which gives this court the mandate to enter judgment for the costs recovered stipulates 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 recovered thereby; and the court may make such order in relation thereto as it thinks fit, including where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”

7. In arguing the application, the Applicant submitted that there is no Appeal and no application that had been filed by the Respondent to set aside or vary the Certificate of Taxation and there is no dispute as to retainer and therefore prayed for judgment in terms of the Certificate of Taxation.

8. The Applicant had filed an Affidavits of Service confirming that the Respondent had indeed been served with the application and relevant notices.

9. On the date set for hearing the Advocate/Applicant informed the court that the application should proceed unopposed as the Respondent had not filed any response to the Applicant’s application and the retainer was also not contested.

10. In Winfred Nyakundi Konosi t/a Konosi & Co. Advocates V. Invesco Assurance Company Ltd. (2018) eKLR, the court stated that: -“Once a certificate of costs is issued and has not been set aside or altered, no other action would be required from the court save to enter judgement upon application”

11. Consequently, the only order which commends itself to this court is to adopt the certificate of taxation as a judgment of this court made in favour of the applicant for the amount of Kshs.909,225. 55. Whether the applicant be awarded interest accrued on the costs at 14% pa from 20/02/2021;

12. The applicable law is found at Rule 7 of the Advocates Remuneration Order which provides as follows;‘An advocate may charge interest at 14% per annum on the disbursements and cost, whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, providing such claim for interest is raised before the amount of the bill has been paid or tendered in full.’

13. The Applicant stated that it had submitted a fee-note to the Respondent indicating that it would attract interest at the rate of 14% per annum, however the same was not availed in the bundle of documents or annexed to the supporting affidavit. Therefore, the Applicant is found to have failed to furnish proof that it had raised the claim for interest with the respondent.

14. In the case of; Kerongo & Company Advocates vs Africa Assurance Merchant Co. Limited [2019] eKLR the court held;‘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.’

FINDINGS AND DETERMINATION 15. In the light of the foregoing this court makes the following findings and determinations;(i)The application is found to be meritorious and it is hereby allowed;(ii)The Certificate of Taxation dated 14th October 2021 in the sum of Kshs. 909,225. 55 is hereby adopted as a Judgment of this court.(iii)There shall be no order as to interest and costs.(iv)The matter is hereby marked as closed.

Orders Accordingly.DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 11THDAY OF MARCH, 2022. HON. A. MSHILAJUDGEIn the presence of;Mr. Mwanig for the Advocate/ApplicantNo appearance for the RespondentLucy -------------------------------Court Assistant