Conrad Law Advocates Llp VS Kiwipay Kenya Limited

The Advocate/Applicant filed a Notice of Motion dated 28th
February 2023, supported by an affidavit sworn by Pascal
Musyoki Advocate sworn on the same date. The Application is
made under Order 23 Rule 1 and 2 of the Civil Procedure
Rules 2010, Sections 1A,1B, 3A of the Civil Procedure Act
and Section 51 of the Advocates Act and Rule 7 of the
Advocates Remuneration Order and seeks the following
orders:
“1) Spent
2) Spent
3) The resultant judgement and decree do attract an interest
of 12% per annum from the 19th of January 2023 until
payment in full.
4) This Honourable Court be pleased to issue an order for the
attachment of the Respondent/Client’s bank accounts
ACEC MISC. APPL. NO. E051 OF 2022 2
numbers 6682003378 and 6682003059 at Ecobank Kenya
Limited to answer and or satisfy the Certificate of Taxation
issued on 19th January 2023.
5) That the costs of this application be provided for.
2. The grounds for the Application are that: -
“1) The Applicant/Advocate's Bill of Costs was partially taxed on
the 19th of December 2022 and the Applicant/Advocate
awarded costs against the Respondent/Client in the sum of
Kenya Shillings Six Hundred and Twelve Thousand, Seven
Hundred Shillings and Sixty Cents (KES.612.700.60) for the
work undertaken in the High Court.
2) That a Certificate of Taxation was issued on 19th January
2023 and thereafter served on the Client/Respondent.
3) That the said Certificate of Taxation has not been
challenged, varied, set aside and/or altered and remains
unsatisfied to date.
4) That the Respondent/Client has bank accounts held at
Ecobank Kenya Limited, being the accounts numbered
6682003059 and 6682003378, which have the funds
sufficient to wholly satisfy the said Decree.
5) That it is in the interest of justice that the orders sought
herein be granted
3. The Advocate/Applicant relied further on its written
submissions and list and bundle of authorities filed on 29th May
2023 which the court has duly considered.
ACEC MISC. APPL. NO. E051 OF 2022 3
4. The Application was not opposed as the Client/Respondent did
not file any responses or submissions. However, at the hearing
of the Application on 24th April 2023, Mr. Kiprotich, Learned
Counsel for the Client/Respondent informed this court that
they were not opposed to the application except for prayers 3
and 4. Prayer 2 of the application was therefore allowed by the
court and what remains for determination are prayers 3 and 4.
5. The issues remaining for determination therefore are:
1) Whether the Certificate of Taxation adopted as a judgement
and decree of the court should attract interest at 12% p.a.
effective from 19th January 2023
2) Whether this court should issue a garnishee order in respect
of the costs.
Issue 1: Whether the Certificate of Taxation adopted as
judgement and decree of the court should attract interest
at 12% p.a. effective from 19th January 2023
6. Rule 7 of the Advocates Remuneration Order states plainly
that interest is chargeable at fourteen (14%) per cent per annum
from the expiration of one (1) month from the delivery of the bill
to the client.
ACEC MISC. APPL. NO. E051 OF 2022 4
7. Interest may be charged
An advocate may charge interest at 14 per cent 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,
provided that such claim for interest is raised
before the amount of the bill shall have been paid
or tendered in full.
7. I have perused the ruling of the taxing officer delivered on 19th
December 2022 and the Certificate of Taxation issued on the
same date. The taxed Bill of Costs was allowed against the
Client/Respondent for a sum of Kshs. 612,700.60/- only. No
orders were made in respect of interest.
8. This court notes from the proceedings before the Taxing Master
that the Client/Respondent was represented on 28th November
2022 and 13th December 2022 when the parties appeared before
the said Taxing Master. Both parties were also present during
the delivery of the Ruling of the Taxing Master on 19th December
2022. Accordingly, the Respondent/Client was fully aware of
the Bill of Costs and subsequently, the certified costs became
payable on the said 19th December 2022.
ACEC MISC. APPL. NO. E051 OF 2022 5
9. This court takes cognizance that the Respondent/Client
expressly conceded to the Certificate of Taxation to be adopted
as an order of this court and did not file any documents in
response to the Application. There is no reason to deny the
Advocate/Applicant interest on the taxed costs.
10. The rate of interest due to the advocate under Rule 7 ARO is
set at 14% per annum chargeable from the expiration of 1
month from delivery by the advocate of the bill to his client and
on the condition that the claim for interest must have been
raised before the amount of the bill is paid in full. However, in
the case the Advocate’s prayer is for interest at 12% per
annum.
11. I have considered the Bill of Costs filed in court and noted
there was no claim for interest, hence the taxed costs did not
include interest. No evidence was placed before the Court to
demonstrate that the Advocate/Applicant made a claim for
interest before the filing of the bill of costs or at all. However,
the Client/Respondent has not opposed the claim for interest.
ACEC MISC. APPL. NO. E051 OF 2022 6
12. Accordingly, I would allow interest on the taxed costs at the
rate of 12% from the date of the Certificate of Taxation, that is
19th December 2022.
Issue 2: Whether the Advocate/Advocate should issue a
garnishee order in respect of the costs.
13. The Advocate/Applicant seeks the garnishment of the
Client/Respondent bank accounts numbers 6682003378
and 6682003059 at Ecobank Kenya Limited to answer and
or satisfy the Certificate of Taxation issued on 19th January
2023. This court having granted prayer 2 of the Application
thereby adopting the Certificate of Costs as a judgment of the
court, the Advocate/Applicant it is left to the
Advocate/Applicant to enforce the orders granted to him
through the means provided in law and this court cannot at
this stage issue a garnishee order as sought.
14. The upshot is that the Advocate/Applicant partially succeeds.
The Advocate/Applicant is awarded interest on the taxed costs
of Kshs. 612,700.60 at 12% per annum from 19th December
ACEC MISC. APPL. NO. E051 OF 2022 7
2022 together with costs of the Application as prayed. He is
also awarded the costs of this application.
Signed, dated and delivered virtually on this 22nd day of June
2023.
E N MAINA
JUDGE