Munene & Company Advocates v Mega Housing Co-operative Society Ltd [2017] KEHC 1284 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL MISC APPL.  NO. 570  OF 2016

MUNENE & COMPANY ADVOCATES...................ADVOCATES/APPLICANT

-V E R S U S –

MEGA HOUSING CO-OPERATIVE SOCIETY LTD.....CLIENT/RESPONDENT

RULING

1. Ng’ang’a Munene practising as Munene & Co. Advocates, the applicant  herein, took out the motion dated 27. 10. 2016 in which he sought for inter alia:

1. THAT judgement be entered for the applicant against the respondent for the sum of kshs.1,909,568. 00 together with interest thereon at 14% per annum from 26th May 2016 until payment in full.

2. THAT the applicant be at liberty to execute against the respondent.

3. THAT costs of this application be borne by the respondent.

2. The motion is supported by the affidavit of Ng’ang’a Munene sworn on 27th day of October 2016.  When served with the aforesaid motion, Mega Housing Cooperative Society Ltd, the respondent herein, filed the replying affidavit of Charley Ikenye Muiruri to oppose the motion.  When the motion came up for interpartes hearing, learned counsels recorded a consent order to have the motion disposed of by written submissions.

3. I have considered the grounds stated on the face of the motion plus the facts deponed in the affidavits filed in support and against the application.   I have also considered the rival written submissions.  Before considering the substance of the motion, let me first set out the brief background of this dispute.  The affidavit evidence presented to this court indicate that Ng’ang’a Munene had instructions from the respondent to act for it in several non litigious transactions involving the purchase and sale of several parcels of land in Kajiado County.  At the end of the aforesaid transactions, the applicant filed an advocate/client Bill of Costs against the respondent which Bill was taxed on 26th May 2016 at ksh.1,909,568/= vide Nairobi H. C. Misc. Appli. No. 236 of 2015 Munene & Co. Advocates =vs= Mega Housing Cooperative Society Ltd.  The applicant has now taken out the motion dated 27. 10. 2017 seeking for entry of judgement and for issuance of execution orders.

4. Having set out in brief the dispute at hand let me now consider the merits or otherwise of the aforesaid motion.  It is the submission of the advocate/applicant that the client/advocate Bill of Costs was taxed and a certificate of taxation was issued for the bill.  The applicant pointed out that the certificate of taxation has not been set aside or altered hence the respondent is liable to pay the sum of kshs.1,909,568/=.

5. The client/respondent opposed the motion arguing that it was not served with the Bill of Costs which gave rise to the taxed costs of ksh.1,909,568/= and only came to know of its existence when served with the current motion.  The respondent also claimed that the advocate/applicant did not represent it until the conclusion of the aforesaid transactions.  The respondent pointed out that the transactions were partly concluded by the firm of Kimani Kabucho Mbeneka Advocates.

6. Having considered the rival submissions and the material placed before this court, it is clear in my mind that there is no dispute that the firm  of Munene and Co. Advocates was instructed by the respondent  to carry out the sale and purchase of some parcels of land in Kajiado.  It is also not in dispute that the applicant advocate filed his Bill of Costs vide Nairobi H.C Misc. Application no. 236 of 2015.  The aforesaid Bill of Costs was heard and determined in favour of the advocate applicant.  It is further not in dispute that the client respondent has not shown to this court that it has filed a reference to challenge the decision on taxation.  Under the provision of Section 51 of the Advocates Act, the court is given power to enter judgement on a certificate of costs which has not been set aside or altered.

7. In the end, I find the motion dated 27. 10. 2016 to be meritorious.

It is allowed as prayed.

Dated, Signed and Delivered in open court this 10th  day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

................................................. for the Plaintiff

................................................ for the Defendant