1. I have considered the Applicants Notice of Motion dated 08/03/2024, the supporting Affidavit sworn on even date by Cecil Kouko and the enclosures thereto. I have also considered the Replying Affidavit sworn by Jack Omollo Odera on 22/05/2024 and the rival oral submissions of parties Advocates and the issue that emerge for determination is whether the Applicant has made out a case for the conversion of a certificate of costs issued on 22/03/2023 for a sum of Kshs 287,015 as a judgment of this Court.
2. It is common ground that the Applicant represented the Respondent in Tamu PMCC No. E015 of 2022: Elcom Engineer System Limited vrs Muhoroni Sugar Company Limited (in receivership) and that the advocate/client bill of costs was taxed at Kshs. 287,015/= as per the certificates of costs dated 22/03/2023 exhibited as the Applicants’ annexure CK3.
3. The client/ Respondent has put forth a defence that upon agreement between the parties on the mode of payment, he has been paying the Applicant by way of instalment in respect of four matters namely:
a) Misc. Application No. E172 of 2022 taxed at kshs. 92,930/=
b) Misc. Application No. E173 of 2022 taxed at kshs. 46,830/=
c) Misc. Application No. E174 of 2022 taxed at kshs. 59,733/=
d) Misc. Application No. E175 of 2022 taxed at kshs. 287,015/=
Total 486,508/=
4. The respondent maintains that he has so far paid a sum of kshs. 315,000/= leaving a balance of kshs. 171,508 and that in the absence of any denial by the Applicant by way of further affidavit then, there is a presumption that payment of kshs. 315,000/= is acknowledged by the applicant.
5. The issue that arises for determination in this application is whether the client /respondent owes the applicant/advocate the sum o Ksh 287,015/ as exhibited in the certificate of costs dated 22.3.2023.
6. The very act of taxing of the advocate/client bill of costs presupposes a disagreement on the amount due and payable to the advocate after the latter having rendered services to the client. It is trite Law that he who avers must prove. Whereas the respondent has taken the position that he has already settled the advocates costs, he has not adduced any agreement on payment by instalment nor any proof of the manner in which he allegedly paid the Applicant a sum kshs. 315,000/=. The respondent has therefore failed to discharge his burden and incident of proof as envisaged under sections 107 and 108 of the Evidence Act. In the absence of such proof, this Court will have to believe that the sum of kshs. 287,015/= as per the certificate of costs under reference is still outstanding.
7. Premised upon the reasons afore stated I do find that this application is well merited wherefore I allow it and I make the following orders:-
a) The certificate of costs dated 22/03/2023 for a sum of Ksh 287,015 is hereby adopted as a judgment of this Court.
b) The judgment sum shall attract interest at the rate of 14% as from 14th August 2021 until payment in full.
c) The Applicant is granted costs of this Application assessed at kshs. 25,000/=
d) This file is marked as closed.
Dated, signed and delivered at Kisumu this 30th day of September, 2024.
2. It is common ground that the Applicant represented the Respondent in Tamu PMCC No. E015 of 2022: Elcom Engineer System Limited vrs Muhoroni Sugar Company Limited (in receivership) and that the advocate/client bill of costs was taxed at Kshs. 287,015/= as per the certificates of costs dated 22/03/2023 exhibited as the Applicants’ annexure CK3.
3. The client/ Respondent has put forth a defence that upon agreement between the parties on the mode of payment, he has been paying the Applicant by way of instalment in respect of four matters namely:
a) Misc. Application No. E172 of 2022 taxed at kshs. 92,930/=
b) Misc. Application No. E173 of 2022 taxed at kshs. 46,830/=
c) Misc. Application No. E174 of 2022 taxed at kshs. 59,733/=
d) Misc. Application No. E175 of 2022 taxed at kshs. 287,015/=
Total 486,508/=
4. The respondent maintains that he has so far paid a sum of kshs. 315,000/= leaving a balance of kshs. 171,508 and that in the absence of any denial by the Applicant by way of further affidavit then, there is a presumption that payment of kshs. 315,000/= is acknowledged by the applicant.
5. The issue that arises for determination in this application is whether the client /respondent owes the applicant/advocate the sum o Ksh 287,015/ as exhibited in the certificate of costs dated 22.3.2023.
6. The very act of taxing of the advocate/client bill of costs presupposes a disagreement on the amount due and payable to the advocate after the latter having rendered services to the client. It is trite Law that he who avers must prove. Whereas the respondent has taken the position that he has already settled the advocates costs, he has not adduced any agreement on payment by instalment nor any proof of the manner in which he allegedly paid the Applicant a sum kshs. 315,000/=. The respondent has therefore failed to discharge his burden and incident of proof as envisaged under sections 107 and 108 of the Evidence Act. In the absence of such proof, this Court will have to believe that the sum of kshs. 287,015/= as per the certificate of costs under reference is still outstanding.
7. Premised upon the reasons afore stated I do find that this application is well merited wherefore I allow it and I make the following orders:-
a) The certificate of costs dated 22/03/2023 for a sum of Ksh 287,015 is hereby adopted as a judgment of this Court.
b) The judgment sum shall attract interest at the rate of 14% as from 14th August 2021 until payment in full.
c) The Applicant is granted costs of this Application assessed at kshs. 25,000/=
d) This file is marked as closed.
Dated, signed and delivered at Kisumu this 30th day of September, 2024.