Mereka & Company Advocates v Invesco Assurance Co. Ltd [2016] KEHC 8698 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & ADMIRALTY DIV ISION

MISC. CIVIL APPLICATION NO.1361 OF 2007

MEREKA & COMPANY ADVOCATES ......................APPLICANT

-VERSUS-

INVESCO ASSURANCE CO. LTD.........................RESPONDENT

RULING

[1]This Ruling is in respect of the Notice of Motion dated 15 September 2015. The application was filedby M/s Mereka& Company AdvocatesunderSection 51(2) of the Advocates Act, Chapter 16 of the Laws of Kenyafor orders that judgment be entered in their favour in the sum of Kshs. 43,532. 50 in terms of the Certificate of Taxation dated 10 January 2007 together with interest at 14% from the date of judgment till payment in full, and that a Decree be issued forthwith for execution.

[2] The application is supported by the Affidavit of David MukiiMerekaannexed thereto, sworn on 15 September 2015 in which it was averred that the Applicant filed a Bill of Costs herein dated 27 August2007 in the sum of Kshs. 70,985/=, and that the Bill of Costs was taxed on 1 November 2007 in favour of the Applicant in the sum of Kshs. 43,532. 50 as per the Certificate of Taxation marked DMM1. It was further averred that the Respondent has not filed any reference from the said taxation, and therefore that it is only just, fair and reasonable that judgment be entered in terms of the Certificate of Taxation dated 10 January 2007(which appears to have been a typographical error, granted that the taxation was done on 1 November 2007).

[3] In paragraph 5(a)-(g) of the Supporting Affidavit, the Applicant explained the apparent delay in seeking judgment on the basis of the Certificate of Taxation, contending that the same is attributable to the Respondent. To that end, the documents marked DMM2-DMM6 were exhibited as annexures to the Supporting Affidavit to demonstrate that the Applicant was vigilant in pursuing costs, and that the Respondent is in the circumstances estopped from pleading limitation.

[4] The application was fixed for hearing on 26 October 2016 and notice thereof duly given to the Respondent as demonstrated by the Affidavit of Service sworn by John GithinjiGachau on 25 October 2016. Accordingly, the application was urged ex parte by Ms. Abok for the Applicant, there being no justification for the Respondent's non-attendance.

[5] Section 51(2) of the Advocates Act 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 the retainer is not disputed, an order that  judgment be entered for the sum certified to be due with costs.”

In the premises, a Certificate of Taxation having been issued herein in the sum of Kshs.43,532. 50 by the Taxing Officer, and there being no indication that the said Certificate has been set aside or altered by the Court, the Applicant would be entitled to judgment pursuant to the aforestated provision.

[6]It is noted however that it is about 9 years since the Certificate of Taxation was issued, and the question is whether the matter is time barred by dint of Section 4 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya. The High Court in Nyeri had occasion to deal with a similar application and the Learned Judge, Wakiaga J, had the following to say in Gachiri Kariuki & Co. Advocates vs. Invesco Assurance Co. Ltd [2014] eKLR:

"...whereas it is true that the relationship between an advocate and client is contractual and that the limitation period of six years is applicable, this may be raised at the taxation level. Once the bill of costs has been taxed it becomes a judgment of  the court and therefore section 4 of the Limitation of ActionsAct which provides for 12 years is applicable."

[7] I would be of the same persuasion and hold that the Notice of Motion dated 15 September, 2015is competently before the Court. In any event, by its letter dated 22 November 2012, the Defendant unequivocally acknowledged that thefees were outstanding and due, and proceeded to make a proposal to pay the same by instalments. In the premises, the clock was re-set in terms of Section 23(3) of the Limitation of Actions Act. Clearly therefore, in either case, the application would be  timeous. In the premises, I would allow the same and grant the prayers sought in Paragraph 1, 2 and 3 thereof. Accordingly judgment is hereby entered in favour of the Applicant in the sum ofKshs.43,532. 50 together with interest and costs of the application.

It is hereby ordered.

SIGNED, DATED and DELIVERED at NAIROBI this 9th DAY OF NOVEMBER, 2016

OLGA SEWE

JUDGE