P Ng'ang'a Mburu t/a Virmir Auctioneers v Nairobi Institute of Business Studies Limited [2022] KEHC 12920 (KLR)

P Ng'ang'a Mburu t/a Virmir Auctioneers v Nairobi Institute of Business Studies Limited (Miscellaneous Civil Application 870 of 2010) [2022] KEHC 12920 (KLR) (Commercial and Tax) (14 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12920 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Civil Application 870 of 2010

DAS Majanja, J

September 14, 2022

Between

P Ng'ang'a Mburu t/a Virmir Auctioneers

Applicant

and

Nairobi Institute of Business Studies Limited

Respondent

Ruling

1. By the notice of motion dated August 26, 2020, the auctioneer seeks judgment for Kshs 297,372. 00 being the taxed costs in accordance with the certificate of taxation dated November 5, 2019. In the supporting and further affidavit sworn on August 26, 2020 and June 23, 2022 respectively, the auctioneer depones that out of the total outstanding fee certified, the respondent owes him Kshs 147,372. 00 following payment of some instalments. He further states that to his knowledge, the respondent’s advocates, AN Ndambiri and Company Advocates, have received full payment from the respondent which they have not remitted to him.

2. The respondent opposes the application through the affidavit of its advocate, AN Ndambiri, sworn on May 30, 2022. He denies that he has received the full amount as alleged by the auctioneer. He further depones that since the certificate of taxation was issued, the circumstances have changed and that the auctioneer has admitted receiving Kshs 147,372. 00 which he now claims. He states that despite requests to the auctioneer to provide further particulars of any amount owed, he has refused to do so.

3. Since the certificate of taxation is not challenged and has not been set aside, the only issue for determination is whether the respondent has paid the sum so certified by the court. In the response to the application, the respondent’s advocate depones that the circumstances following the certification of fees changed but does not state how these circumstances have changed and if so, to what extent in respect of the fees. On the other hand, the auctioneer has produced correspondence and copies of cheques forwarded to him leaving the balance he now claims.

4. According to the uncontested and unassailable evidence, the respondent paid Kshs 150,000. 00 by three instalments of Kshs 50,000. 00 each through cheque Nos 303323 dated January 5, 2020, 303346 dated February 12, 2020 and 302428 dated March 13, 2020. From the evidence, the respondent has not discharged it burden of showing that it has made full payment. I therefore find and hold that the balance owed to the auctioneer is Kshs 147,372. 00.

5. Accordingly, the notice of motion dated August 26, 2020 is allowed on terms that judgment be and is hereby entered for the applicant against the respondent for the sum of Kshs 147,372. 00 together with costs of the application assessed at Kshs 30,000. 00 only to be paid by the respondent.

DATED and DELIVERED at NAIROBI this 14th day of SEPTEMBER 2022. DS MAJANJAJUDGECourt Assistant: Mr M OnyangoMr Gathemia instructed by Gatheru Gathemia and Company Advocates for the Applicant.Mr Ndambiri instructed by AN Ndambiri and Company Advocates for the Respondent.