Introduction
1. Before this Court for determination is the Notice of Motion Application dated 5th August 2022, seeking to enforce a Certificate of Taxation issued in respect of a Bill of Costs dated 3rd December 2012, arising from HCCC No. 2293 of 1991 – National Bank Limited vs Morris Guchura Njage.
2. The Application is supported by the affidavit sworn on the of Andrew Loketo Kariu, an Advocate in the firm of Njeru Nyaga & Co. Advocates, the Applicant herein.
3. The Advocate deponed that the Applicant acted for the Respondent in HCCC No. 2293 of 1991. Thereafter, the Applicant filed a Bill of Costs dated 3rd December 2012, which was taxed by Hon. Elizabeth Tanui (Taxing Officer) on 11th October 2018 at Kshs. 188,713/=. Consequently, a Certificate of Taxation confirming this amount was issued on 21st July 2022.
4. The Advocate further deponed that the Respondent was duly served with the ruling and certificate of costs but has failed to settle the amount due, hence the instant application.
5. The matter proceeded by way of written submissions. the Advocate filed his submissions dated 28th June 2024. No submissions were filed on behalf of the Respondent. The court will in the circumstances proceed and determine the application solely on the basis of the Applicant’s submissions.
6. In his submissions, the Advocate
Analysis and Determination
7. Upon considering the pleadings, the Application and the submissions filed by the Advocate, the Court finds that the sole issue for determination is whether this court should enter judgment for the taxed amount as certified by the Taxing Master.
8. Section 51(2) of the Advocates Act is clear on the legal effect of a certificate of taxation: it is final as to the quantum of costs unless set aside or varied through reference proceedings. No such challenge has been brought before this court. The Section states that: -
"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. Further, the courts have consistently held that where a certificate of taxation remains unchallenged and the retainer is not in dispute, the court has the discretion to enter judgment for the sum certified, without requiring a separate suit. See the cases of Musyoka & Wambua Advocates vs Rustam Hira Advocate [2006] eKLR; and the case of Lubulellah & Associates Advocates vs N.K. Brothers Limited [2014] eKLR.
10. In view of the foregoing, this Court finds merit in the application dated 5th August 2022. The Respondent has not disputed the retainer, has not challenged the taxation, and has failed to pay the taxed costs.
11. Accordingly, the Court makes the following final orders:
i. Judgment is hereby entered in favour of the Applicant against the Respondent for the sum of Kshs. 188,713/=.
ii. The Respondent shall pay the costs of this application to the Applicant, which is hereby taxed at Kshs. 20,000/-
12. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
17TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Waweru………………………for Defendant
N/A…………………. ……..for Plaintiff
1. Before this Court for determination is the Notice of Motion Application dated 5th August 2022, seeking to enforce a Certificate of Taxation issued in respect of a Bill of Costs dated 3rd December 2012, arising from HCCC No. 2293 of 1991 – National Bank Limited vs Morris Guchura Njage.
2. The Application is supported by the affidavit sworn on the of Andrew Loketo Kariu, an Advocate in the firm of Njeru Nyaga & Co. Advocates, the Applicant herein.
3. The Advocate deponed that the Applicant acted for the Respondent in HCCC No. 2293 of 1991. Thereafter, the Applicant filed a Bill of Costs dated 3rd December 2012, which was taxed by Hon. Elizabeth Tanui (Taxing Officer) on 11th October 2018 at Kshs. 188,713/=. Consequently, a Certificate of Taxation confirming this amount was issued on 21st July 2022.
4. The Advocate further deponed that the Respondent was duly served with the ruling and certificate of costs but has failed to settle the amount due, hence the instant application.
5. The matter proceeded by way of written submissions. the Advocate filed his submissions dated 28th June 2024. No submissions were filed on behalf of the Respondent. The court will in the circumstances proceed and determine the application solely on the basis of the Applicant’s submissions.
6. In his submissions, the Advocate
Analysis and Determination
7. Upon considering the pleadings, the Application and the submissions filed by the Advocate, the Court finds that the sole issue for determination is whether this court should enter judgment for the taxed amount as certified by the Taxing Master.
8. Section 51(2) of the Advocates Act is clear on the legal effect of a certificate of taxation: it is final as to the quantum of costs unless set aside or varied through reference proceedings. No such challenge has been brought before this court. The Section states that: -
"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. Further, the courts have consistently held that where a certificate of taxation remains unchallenged and the retainer is not in dispute, the court has the discretion to enter judgment for the sum certified, without requiring a separate suit. See the cases of Musyoka & Wambua Advocates vs Rustam Hira Advocate [2006] eKLR; and the case of Lubulellah & Associates Advocates vs N.K. Brothers Limited [2014] eKLR.
10. In view of the foregoing, this Court finds merit in the application dated 5th August 2022. The Respondent has not disputed the retainer, has not challenged the taxation, and has failed to pay the taxed costs.
11. Accordingly, the Court makes the following final orders:
i. Judgment is hereby entered in favour of the Applicant against the Respondent for the sum of Kshs. 188,713/=.
ii. The Respondent shall pay the costs of this application to the Applicant, which is hereby taxed at Kshs. 20,000/-
12. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
17TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Waweru………………………for Defendant
N/A…………………. ……..for Plaintiff