Introduction
1. This Ruling dispose of the Notice of Motion Application dated 9th August 2023 in which the Advocate is seeking the adoption of the Certificate of Costs herein as a Judgment of the Court.
2. In the affidavit of Herman Omiti Advocate, sworn on the 9th August 2023 in support of the application, the Advocate depones that the firm offered professional legal services to the Respondent in Insolvency Petition No. 3 of 2018, Wambugu Kariuki & Associates Advocates vs Invesco Assurance Company Limited, in which a Ruling was delivered on 14th May, 2019.
3. It is further deponed by the Advocate that the Applicant consequently filed an Advocate-Client Bill of Costs dated 18th February 2022 which was taxed at Kshs. Thirty-Nine Thousand and Ten (Kshs. 39,010/-) and a Certificate of Taxation dated 12th May 2023, issued in that regard.
4. That on 13th June 2023, the Applicant wrote to the Respondent to follow up on the payment of the costs as taxed but the Respondent has declined and/or neglected to settle the fees.
5. That it is due to the Respondent’s failure to settle the fees that has necessitated the instant application.
6. The Application was canvassed by way of written submissions. While the Applicant filed submissions dated 8th October 2024, the Respondent did not file any submissions.
Analysis and Determination
7. The Advocates relied on the provisions of Section 51(2) of the Advocates Act Cap 16 (Laws of Kenya) which empowers the court to enter judgment on taxed costs in favour of an advocate as against the Client/Respondent. In this regard, they placed reliance on the case of Amuga and Company Advocates v Kisumu Concrete Products Limited [2021] eKLR.
8. Section 51(2) of the Advocates Act provides as follows: -
“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.”
9. Rule 7 of the Advocates (Remuneration) Order provides that: -
“An advocate may charge interests at 14% per annum on his disbursement and costs whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, such claim for interests is raised before the amount of the bill has been paid or tendered in full.”
10. Further, Section 26 of the Civil Procedure Act, Cap. 21 (Laws of Kenya) stipulates as follows;
“(1) Where and in so far as a decree is for payment of money, the court may, in the decree, order interest at such rate as the court may deem reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.
(2) Where such a decree is silent with respect to payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.”
11. Having carefully considered the Applicant's Written Submissions, it is clear that the Certificate of Costs that was issued by the Taxing Officer has not been set aside and/or altered. Indeed, there is no pending reference under Paragraph 11 of the Advocates Remuneration Order challenging the decision of the said Taxing Master.
12. Further, it is also evident that the Client has not opposed the adoption of the taxed costs as a judgment sum.
13. In the premises, I find and hold that pursuant to the provisions of Section 51 (2) of the Advocates Act, the Advocate/Applicant herein is entitled to Judgment for that amount.
Disposition
14. The upshot of this court’s decision is that the Advocate’s Notice of Motion application dated 9th August 2023 is merited and the same be and is hereby allowed in the following terms: -
i. Judgment be and is hereby entered in favor of the Advocate in the sum of Kenya Shillings Thirty-Nine Thousand and Ten (Kshs. 39,010/-) together with interest thereon at fourteen (14%) per cent per annum calculable after thirty (30) days from 13th June 2023 when the Certificate of Costs was served upon the Client/Respondent.
ii. Costs of this application be awarded to the Advocate and is hereby assessed at Kshs. 5,000/-
iii. File closed
15. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
19TH DAY OF DECEMBER 2024
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
…….………...for Applicant
……….……...for Respondent