Nduati & Co Advocates v Kenya Orient Insurance Company Ltd [2023] KEHC 24675 (KLR)

Nduati & Co Advocates v Kenya Orient Insurance Company Ltd (Miscellaneous Application E073 of 2022) [2023] KEHC 24675 (KLR) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24675 (KLR)

Republic of Kenya

In the High Court at Kiambu

Miscellaneous Application E073 of 2022

PM Mulwa, J

November 2, 2023

Between

Nduati & Co Advocates

Applicant

and

Kenya Orient Insurance Company Ltd

Respondent

Ruling

1. The application before me is a Notice of Motion dated 25th July 2022 brought under the provisions of Sections 51(2) of the Advocates Act, Cap 16 of the Laws of Kenya, Order 7 of the Advocates Remuneration Order, Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. The Advocate/Applicant seeks the following orders-i.That the Honourable Court be pleased to enter judgment for the Advocate/Applicant against the client/Respondent in the sum of Kshs. 219,206. 80/= as appears in the Certificate of Taxation, dated 22nd July, 2022 together with interest at 14% per annum computed 30 days from 23rd March 2017 until payment in full; andii.Costs be provided for.

2. The grounds are that the Applicant’s bill of costs dated 29th March 2022 was taxed at Kshs. 219,206. 80/= and a certificate of taxation issued on 22nd July 2022. That the Respondent has not shown any commitment towards the payment of the certified costs. The application is supported by the annexed affidavit of Stanley Nduati, advocate in the conduct of the matter. He reiterates the grounds of the application.

3. From the court record, the certificate of costs has not been set aside thus the issue of the advocate costs is conclusive. The application was served upon the Respondent who did not file a response.

4. Section 51 of the Advocates Act provides:(1)Every application for an order for the taxation of an advocate’s bill or for the delivery of such a bill and the delivering up of any deeds, documents and papers by an advocate shall be made in the matter of that advocate.(2)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.

5. The wording of the above section empowers the court to enter judgment on the taxed amount if the same is uncontested. In Lesinko Njororge & Gathogo Advocates v Invesco Assurance Co. Ltd [2021] eKLR the court held as hereunder: -“The Certificate of Costs provides the basis for exercise of jurisdiction by the court to enter judgment for the taxed costs in accordance with Section 51(2) of the Advocates Act…”

6. It is my considered view that since the certificate of costs has not been set aside the same will be adopted as the judgment of this court.

7. The Applicant herein has also sought interest at 14% to be computed 30 days from 23rd March 2017 until payment in full. Rule 7 of the Advocates Remuneration Order states thus: -“An advocate may charge interest at 14% per annum on his disbursements and costs, 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”.

8. In Kithi & Company Advocates vs Menengai Downs Limited, Misc. Application No. 1069 of 2013, Mabeya J. when giving effect to Rule 7 of the Advocates Remuneration Order held as follows: - “In view of the foregoing, once a judgement is entered on a certificate of costs, the decretal amount is liable to attract interest of 14% per annum from 30 days after the service of the bill and not the date of taxation. For the Advocate to be able to recover this, there must be evidence on record, on the date when the bill was served upon the client.”

9. The rate of interest awardable is 14% per annum applicable 30 days after the date of service of the Bill of costs. The evidence on record is that the Bill of Costs dated 29th March 2022 was served on the Respondents on 4th May 2022, if the issue of interest at 14% per annum is to apply, the same ought to apply 30 days from the date of service which is 4th June 2022 and not 23rd March 2017 as prayed by the Applicant.

10. The upshot is that judgment is hereby entered in favour of the Applicant as against the Respondent in the sum of Kshs. 219,206. 80/=, as per the Certificate of Taxation dated 22nd July 2022, together with interest at 14% per annum from 4th June 2022 until payment in full.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 2ND DAY OF NOVEMBER 2023. ...................................P. MULWAJUDGEIn the presence of:Ms. Nduati - for the ApplicantN/A - for the RespondentDuale – court assistant