Mukabane Kagunza & Co.Advocates t/a Mukabane Kagunza & Co.Advocates v Kennedy Kavana Kamushu & Aggrey Sagwa [2020] KEELC 3011 (KLR)

REPUBLIC OF KENYA

IN THE ENVORONMENT AND LAND COURT AT ELDORET

ELC MISC. NO. 22 OF 2019

MUKABANE KAGUNZA & CO.ADVOCATES

T/A MUKABANE KAGUNZA & CO.ADVOCATES...................PLAINTIFF

VERSUS

KENNEDY KAVANA KAMUSHU.......................................1ST DEFENDANT

AGGREY SAGWA.................................................................2ND DEFENDANT

RULING

This ruling is in respect of an application dated 27th May 2019 by the 1st defendant/applicant seeking for the following orders:

a) That pending the hearing of this application inter partes an order of stay of execution of the order/decree issued herein and warrants of attachment and sale of properties of the 1st defendant applicant be granted.

b) That pending the hearing and determination of this application inter partes an order of stay of execution of the order/decree issued herein and warrants of attachment and sale of properties of the 1st defendant applicant be granted.

c) That the costs taxed herein in favour of the applicants/respondents herein be apportioned equally between the 1st defendant and the 2nd defendant respondents.

d) That the sum of Kshs. 33,000/ paid  to applicant/respondents be taken into account in calculating  the  balance   to be paid by the 1st defendant /applicant and thereafter the proper balance due from the 1st defendant/applicant be paid to the applicant respondent  herein.

e) That the applicant/respondents herein to bear the costs of the auctioneers and this application.

Parties agreed to canvass the application vide written submission which were duly filed.

APPLICANT’S CASE

Counsel submitted that the applicant should not be forced to solely bear the total amount of Kshs. 127,680/ being costs awarded. Further that the respondent has not taken into account Kshs. 33,000/ which was paid as deposit to the respondent advocates.

Mr. Amasakha counsel for the applicant submitted that costs were awarded to the respondent against the two defendants in ELC No 362 of 2016 jointly and severally and no justifiable reason has been given why the respondent is proceeding exclusively against the applicant for the entire amount awarded.

Counsel relied on section 51(2) of the Advocates Act which 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 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.

Counsel submitted that the respondent firm of Advocates did not comply with the above provision as they did not seek for judgment to be entered in terms of the certificate of costs and thereafter draw a decree and apply for execution as provided for under the law.

Counsel therefore urged the court to find that the application has merit and find that the execution set in motion is irregular and that the respondent should bear the auctioneers costs.

RESPONDENT’S SUBMISSIONS

Counsel opposed the application on the ground that is fatally defective hence should be dismissed with costs. Counsel sated that the amount of Kshs. 33,000/ claimed by the applicant to have been paid was received under protest as the same was for disbursements. Counsel further gave a background to the case leading to this application.

Counsel submitted that an Advocate can recover costs from either of the parties who are sued jointly and severally and that the applicant having not paid the costs in full necessitated execution.

Mr. Kagunza counsel for the respondent submitted that the application was not filed timeously and therefore should be dismissed with costs to the respondent.

ANALYSIS AND DETERMINATION

I have considered the application and the submissions by counsel find that the issues for determination are as to whether the respondent followed the right procedure in the execution process upon issuance of certificate of costs and whether the applicant is entitled to the stay of execution orders.

This is an Advocate/ client costs which were taxed and costs awarded against the Advocates’ clients who were two defendants in ELC No 362 of 2016. It is on record that the applicant had paid Kshs. 33,000/ as fee deposit to the respondent. It is also on record that the costs of Kshs. 127,680/ was awarded against the two clients jointly and severally.  It is also not in dispute that the applicant is ready and willing to pay the balance of the costs of Kshs. 30,840/.

Section 51(2) of the Advocates Act stipulates:

“ The  certificate  of a taxing officer by  whom it 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.”

In the case of Nyabena Alfed t/a Nyabena Nyakundi & Company Advocates v Tourism Promotion Limited t/a Serena hotel [2018] eKLRAburili J held that:

‘From the above provision, it is clear, and it a rule of practice for advocates to file applications by way of notice of motion moving the court to enter judgment   after taxation of their bills of costs and issuance of certificate of taxation.  This procedure  ensures  expedition  since the certificate  of costs once  issued is final  as to the amount  of the costs  covered and what then  remains  is for the court to pronounce itself, on an application for  judgment, where  there is no  dispute  as to retainer,  and order that  judgment be  entered  for the sum of as per the  certificate of  costs’.

There is no evidence that the respondent complied with the procedure of filing an application for the court to enter judgment after taxation of bill of costs and issuance of certificate of taxation. The respondent attempted to execute the decree by instructing auctioneers to proclaim the applicant’s properties.

It should also be noted that the respondent proceeded to demand the whole amount awarded against the applicant without taking into consideration of the amount that had already been paid by the applicant. Further that the respondent ignored the fact that the costs were against the two clients. This shows that the respondent found that the applicant was the soft target with low hanging fruits to pounce on.

Section 27 (1) of the Civil Procedure Act provides that:-

“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge  shall have full power to determine by whom and out of what property and to what extend such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers :

Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order”

Having said that I find that the respondent’s action was unprocedural and therefore I order that there be stay of execution of the decree and further order that the costs be apportioned equally between the two defendants who were the respondent’s clients.

The respondent should follow the proper procedure as stated above or in the alternative the   applicants’ offer of payment of Kshs. 30,840/ who is willing to pay his share of the awarded costs. The respondent to bear the auctioneers’ costs together with the costs of the application.

DATED and DELIVEREDatELDORETthis 23RD DAY OF APRIL, 2020

M. A. ODENY

JUDGE