Mohamed & Samnakay v Chopstix Limited [2017] KEELRC 2010 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT

NAIROBI

MISC. NO.55 OF 2015

MOHAMED & SAMNAKAY ……………………………….. APPLICANT/ADVOCATE

AND

CHOPSTIX LIMITED ……………………………..………… RESPONDENT/CLIENT

AND

IN ELRC NO.311 OF 2012

ELIJAH KITONGA KAASYA VERSUS CHOPSTIX CHINESE RESTAURANT

RULING

The applicant by notice of Motion dated 25th April, 2016 is seeking for orders that judgement be entered for the sum of Kshs.299,857. 00 for costs certified on 30th March, 2016 and such judgement be entered with interest at 14% per annum from 7th August, 2015 one months after service of the Bill of Costs on the respondent. The application is supported by the affidavit of SJ Saenyo, advocate for the applicant.

The client and respondent filed Grounds of Opposition to the application on the grounds that the claimed amounts of Kshs.299,587. 00 are not reflective of actual amounts which ought to be paid as on 3rd February, 2016 the client paid Kshs.50,000. 00 towards partial settlement of the charges due and ought to be put into account.

Both parties made oral submissions.

In an application for the taxation of the bill of costs which is approved and is not challenged, set aside of altered, section 51 of the Advocates Act requires that the court to issue an Applicant with judgement for the sum certified stated as due in the Certificate of Costs. See Daly & Figgis Advocates versus Homelex Limited (2013) eKLRwhere in reference to section 51(2) of the Advocates Act the court held that;

… Section 51 (2) of the Advocates Act … the words of the said section were very clear that where a Certificate of Taxation had neither been set aside nor altered by the Court, and where there was no order of stay, the Certificate was final as to the amount of costs covered thereby and to allege a dispute at summary Judgement stage would amount to a contradiction of express and mandatory statutory provisions

The Deputy Registrar herein certified costs due on 30th March, 2016 upon judgement delivered on 7th August, 2015. The respondent client asserts that on 3rd February, 2016 there was a payment of Kshs.50,000. 00 tot eh advocate as part of the charges.

Where the Bill of Costs was taxed on 30th March, 2016 this was a date after the alleged payment of Kshs.50,000. 00. in any event the respondent opted to filed Grounds of Opposition and not an affidavit setting out how and the purpose of the alleged payment of Kshs.50,000. 00. such are matters which ought to have been addressed in a Replying Affidavit as to filed Grounds of Opposition is to deny the applicant the chance to interrogate the nature of matters addressed in the grounds of Opposition and which essentially are facts which should and ought to go into an affidavit as matters of fact.

I find no material sufficient challenging the application by the applicant. The application dated 25thApril, 2016 is hereby allowed with costs. Judgement is hereby entered for the sum of Kshs.299,857. 00 to be paid with interest from 7thAugust, 2015 and costs herein.

Delivered in open court at Nairobi this 26thday of September, 2017.

M. MBARU JUDGE

In the presence of:

David Muturi and Nancy Bor – Court Assistants

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