RULING
1. The applicant has filed a Notice of Motion dated 3rd June 2024 under order 11, rule 3 and order 50, rule 1 of the Civil Procedure Rules, sections 1A and 3A of the Civil Procedure Act and section 51 (2) of the Advocates Act. It prays for the following:
1. THAT judgment be entered in favor of the applicants (sic) against the respondents (sic) for the sum of Kshs. four million six hundred and fifty thousand five hundred and ninety only (Kshs. 4,650,590.00) being the certified costs due to the applicant as against the respondent;
2. THAT the respondent do pay the applicant the costs of this taxation, the application together with interests on the taxed sum be assessed by the Honorable Court.
2. The application is supported by the grounds on the body of the motion and the supporting affidavit sworn by Ben Musundi, an associate Advocate of the applicant’s firm. The applicant contended that following instructions to act for the respondent in Nairobi Milimani Commercial Court Winding up Cause No. 11 of 2013; In the matter of winding up of Buffet Park Limited and in the matter of a petition by minority shareholders, the applicant discharged its obligations. However, its legal fees were not paid, and as a result, the applicant filed its Bill of Costs dated 5th April 2022. In a ruling dated 11th October 2023, the Bill of Costs was taxed at Kshs. 4,650,590.00. The applicant was later issued with a certificate of costs for taxation dated 27th May 2024. It was submitted that despite the issuance and service of the certificate of costs, the respondent has neglected/failed to settle the outstanding fees. The applicant now intends to execute for the said sums hence the present application.
3. The court, upon perusing the affidavits of George Kinyanjui Njenga sworn on 4th November 2024 and 8th November 2024 is satisfied that the respondent was properly served with the application and the hearing notice. That notwithstanding, the respondent elected not to participate in the prosecution of this application. During the hearing of the application on 13th November 2024, the applicant adopted the application urging this court to allow the same as prayed.
4. Section 51 (2) of the Advocates Act provides:
“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. In the ruling dated 11th October 2024, the taxing master taxed the applicant’s advocate-client Bill of Costs dated 5th April 2022 at Kshs. 4,650,590.00. The applicant was issued with a certificate of costs for taxation dated 27th May 2024. The application is not opposed. More so, there is no evidence that the said decision has been challenged by way of reference or that the same has been varied or set aside.
6. Before issuing my final orders, it is necessary to address the applicant’s rather careless approach in citing incorrect legal provisions. It cited order 11 rule 3 which relates to case management and order 50 rule 1 which is on computing time. The relevance of those provisions to the present issues remains unclear and perhaps counsel referred to the previous versions of the Civil Procedure Rules. I wish to emphasize on the need for counsel to be diligent in drafting of pleadings and invoking the applicable provisions in approaching court. As a professional, such mundane processes are the cornerstone of the professional input for which a litigant seeks from an Advocate in issuing instructions. In the same vein, it is only just that an Advocate is remunerated for exercise of due skill and care while representing a client, and earn the fees as is being sought in the present application.
7. However, since the applicant made reference to section 1A and 3A of the Civil Procedure Act and section 51 (2) of the Advocates Act, I do find the application merited. Accordingly, judgment is entered in favor of the applicant in the sum of Kshs. 4,650,590.00 as against the respondent. The applicant shall also be awarded costs of this application and interest therein at the rate of 14% per annum being the court rate from the date of this judgment until payment in full.
Orders accordingly
Delivered, Dated and Signed this 24th day of January 2025
1. The applicant has filed a Notice of Motion dated 3rd June 2024 under order 11, rule 3 and order 50, rule 1 of the Civil Procedure Rules, sections 1A and 3A of the Civil Procedure Act and section 51 (2) of the Advocates Act. It prays for the following:
1. THAT judgment be entered in favor of the applicants (sic) against the respondents (sic) for the sum of Kshs. four million six hundred and fifty thousand five hundred and ninety only (Kshs. 4,650,590.00) being the certified costs due to the applicant as against the respondent;
2. THAT the respondent do pay the applicant the costs of this taxation, the application together with interests on the taxed sum be assessed by the Honorable Court.
2. The application is supported by the grounds on the body of the motion and the supporting affidavit sworn by Ben Musundi, an associate Advocate of the applicant’s firm. The applicant contended that following instructions to act for the respondent in Nairobi Milimani Commercial Court Winding up Cause No. 11 of 2013; In the matter of winding up of Buffet Park Limited and in the matter of a petition by minority shareholders, the applicant discharged its obligations. However, its legal fees were not paid, and as a result, the applicant filed its Bill of Costs dated 5th April 2022. In a ruling dated 11th October 2023, the Bill of Costs was taxed at Kshs. 4,650,590.00. The applicant was later issued with a certificate of costs for taxation dated 27th May 2024. It was submitted that despite the issuance and service of the certificate of costs, the respondent has neglected/failed to settle the outstanding fees. The applicant now intends to execute for the said sums hence the present application.
3. The court, upon perusing the affidavits of George Kinyanjui Njenga sworn on 4th November 2024 and 8th November 2024 is satisfied that the respondent was properly served with the application and the hearing notice. That notwithstanding, the respondent elected not to participate in the prosecution of this application. During the hearing of the application on 13th November 2024, the applicant adopted the application urging this court to allow the same as prayed.
4. Section 51 (2) of the Advocates Act provides:
“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. In the ruling dated 11th October 2024, the taxing master taxed the applicant’s advocate-client Bill of Costs dated 5th April 2022 at Kshs. 4,650,590.00. The applicant was issued with a certificate of costs for taxation dated 27th May 2024. The application is not opposed. More so, there is no evidence that the said decision has been challenged by way of reference or that the same has been varied or set aside.
6. Before issuing my final orders, it is necessary to address the applicant’s rather careless approach in citing incorrect legal provisions. It cited order 11 rule 3 which relates to case management and order 50 rule 1 which is on computing time. The relevance of those provisions to the present issues remains unclear and perhaps counsel referred to the previous versions of the Civil Procedure Rules. I wish to emphasize on the need for counsel to be diligent in drafting of pleadings and invoking the applicable provisions in approaching court. As a professional, such mundane processes are the cornerstone of the professional input for which a litigant seeks from an Advocate in issuing instructions. In the same vein, it is only just that an Advocate is remunerated for exercise of due skill and care while representing a client, and earn the fees as is being sought in the present application.
7. However, since the applicant made reference to section 1A and 3A of the Civil Procedure Act and section 51 (2) of the Advocates Act, I do find the application merited. Accordingly, judgment is entered in favor of the applicant in the sum of Kshs. 4,650,590.00 as against the respondent. The applicant shall also be awarded costs of this application and interest therein at the rate of 14% per annum being the court rate from the date of this judgment until payment in full.
Orders accordingly
Delivered, Dated and Signed this 24th day of January 2025