1. The Notice of Motion herein dated 12/11/2024 seeks orders that the certificate of costs issued in respect of taxation order made on 28/8/2024 for KShs 2,268,615 (Two million, two hundred and sixty-eight thousand six hundred and fifteen only) be adopted as judgment and decree of this court together with interest at 14% per annum from the date of filing of the bill on 30/5/2024 till payment in full and that costs of the application be provided for.
2. The grounds in support of the application are that the costs were taxed and a certificate of costs issued accordingly and no reference challenging the taxed costs has been taken out nor application filed for setting aside and no orders issued altering the said certificate.
3. The application is supported by the affidavit of Francis Maina Njonjo, advocate, in which he deposes that his firm, the applicant herein was instructed and ably represented the respondent and finalized Insolvency Petition No. E047 of 2023. The advocate/client bill of costs has since been taxed and a certificate of costs issued and the same is annexed to the supporting affidavit. The certificate of costs has not been set aside to date but the taxed costs have not been settled by the respondent at all and the respondent remains liable.
4. The application is expressed to be filed under section 51(2) of the Advocates Act (Cap. 16) Laws of Kenya, Rule 7 of the Advocates Remuneration Order and all other enabling provisions of the law.
5. Learned counsel for the applicant informed the court on 13/5/2025 that the application was duly served and there is no response thereto. The applicant has filed an affidavit of service sworn by Mathew Mwanza, process server to that effect.
6. I have considered the application, the grounds in support and the supporting affidavit. The application is not opposed. The only issue for determination in this application is whether judgment should be entered against the respondent for the taxed costs due to the applicant.
7. Section 51(2) of the Advocates Act provides as 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.”
8. Rule 7 of the Advocates (Remuneration) Order provides that: -
“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.”
9. The applicant has annexed to the supporting affidavit the certificate of costs that was issued by the Taxing Officer. The same has not been set aside and/or altered and no reference under paragraph 11 of the Advocates Remuneration Order challenging the decision of the said Taxing Master has been made. The Court of Appeal in the case of Otieno, Ragot & Company Advocates v Kenya Airports Authority [2021] eKLR held that once a certificate of costs is issued and there is no reference against the decision of the taxing master, and the certificate of costs had not been set aside and/or altered, no other action was required save for entry of judgment by the court. The taxed bill of costs can therefore be entered as a judgment of this court.
10. On the issue of interest, the position in law is that the court has the discretion to determine when interest starts to run. For instance, in the case of Otieno Ragot & Company Advocates vs Kenya Ports Authority (Supra), it was held that under Rule 7 of the Advocates (Remuneration) Order, an advocate is entitled to claim interest but the time from when interest will run is not stipulated and is therefore left to the discretion of the court.
11. In the case of D. Njogu & Company Advocates v Kenya National Capital Corporation [2006] eKLR, the High Court held that interest ought to run from the date the correct fee note was sent to the client. The court held:
“… the date from when interest should be calculable should be pegged to the date when the advocate sends the correct fee note. And by the “correct fee note” I mean the bill which is in accordance with the terms upon which the advocate had contracted with the client, or the bill which the client does not dispute, or the bill which is in accordance with the sums awarded by either the taxing officer or by the deputy registrar in a certificate of costs.”
12. The applicant herein has not stated the time when the bill in the certificate of costs was submitted to the client for settlement as no document was annexed to the application to prove the same. In the case of Mercy Mwangi t/a Mwangi Kingera & Company Advocates vs Invesco Assurance Company Limited [2017] eKLR it was held that the discretion to be exercised by the court comes with the power to reduce the period in which the interest is payable or to extend or alter the rate at which interest is payable or to withhold the entire interest payable in the interests of justice.
13. In the absence of such evidence, I will therefore take that time to be from when the present application was served upon the respondent which unfortunately I do not find an affidavit of service filed herein. But I believe it was served as was stated before court by the applicant’s advocate.
14. Rule 7 of the Advocates Remuneration Order provides for interest on the said costs at 14% per annum until payment in full. In the case of Makhecha and Company Advocates v Central Bank of Kenya [2020] eKLR the court held that Rule 7 of the Advocates Remuneration Order entitles an advocate to charge interest above the normal or applicable rate of twelve (12%) per cent provided that the claim for interest was raised before payment or settlement of the advocate’s bill of costs.
15. The claim for interest herein was raised before settlement of the applicant’s bill of costs.
Determination
16. From the foregoing analysis, I find that the applicant’s notice of motion application dated 12/11/2024 has merit and is hereby allowed in the following terms: -
i. a. Judgment be and is hereby entered for of the applicant for KShs 2,268,615 (Two million, two hundred and sixty-eight thousand six hundred and fifteen only) together with interest thereon at fourteen per cent (14%) per annum calculated from the date when this application was served upon the respondent until payment in full.
ii. There shall be no orders for costs.
17. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 19th day of June 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Njonjo for the Applicant.
N/A for the Respondent.
Carlos: Court Assistant.
2. The grounds in support of the application are that the costs were taxed and a certificate of costs issued accordingly and no reference challenging the taxed costs has been taken out nor application filed for setting aside and no orders issued altering the said certificate.
3. The application is supported by the affidavit of Francis Maina Njonjo, advocate, in which he deposes that his firm, the applicant herein was instructed and ably represented the respondent and finalized Insolvency Petition No. E047 of 2023. The advocate/client bill of costs has since been taxed and a certificate of costs issued and the same is annexed to the supporting affidavit. The certificate of costs has not been set aside to date but the taxed costs have not been settled by the respondent at all and the respondent remains liable.
4. The application is expressed to be filed under section 51(2) of the Advocates Act (Cap. 16) Laws of Kenya, Rule 7 of the Advocates Remuneration Order and all other enabling provisions of the law.
5. Learned counsel for the applicant informed the court on 13/5/2025 that the application was duly served and there is no response thereto. The applicant has filed an affidavit of service sworn by Mathew Mwanza, process server to that effect.
6. I have considered the application, the grounds in support and the supporting affidavit. The application is not opposed. The only issue for determination in this application is whether judgment should be entered against the respondent for the taxed costs due to the applicant.
7. Section 51(2) of the Advocates Act provides as 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.”
8. Rule 7 of the Advocates (Remuneration) Order provides that: -
“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.”
9. The applicant has annexed to the supporting affidavit the certificate of costs that was issued by the Taxing Officer. The same has not been set aside and/or altered and no reference under paragraph 11 of the Advocates Remuneration Order challenging the decision of the said Taxing Master has been made. The Court of Appeal in the case of Otieno, Ragot & Company Advocates v Kenya Airports Authority [2021] eKLR held that once a certificate of costs is issued and there is no reference against the decision of the taxing master, and the certificate of costs had not been set aside and/or altered, no other action was required save for entry of judgment by the court. The taxed bill of costs can therefore be entered as a judgment of this court.
10. On the issue of interest, the position in law is that the court has the discretion to determine when interest starts to run. For instance, in the case of Otieno Ragot & Company Advocates vs Kenya Ports Authority (Supra), it was held that under Rule 7 of the Advocates (Remuneration) Order, an advocate is entitled to claim interest but the time from when interest will run is not stipulated and is therefore left to the discretion of the court.
11. In the case of D. Njogu & Company Advocates v Kenya National Capital Corporation [2006] eKLR, the High Court held that interest ought to run from the date the correct fee note was sent to the client. The court held:
“… the date from when interest should be calculable should be pegged to the date when the advocate sends the correct fee note. And by the “correct fee note” I mean the bill which is in accordance with the terms upon which the advocate had contracted with the client, or the bill which the client does not dispute, or the bill which is in accordance with the sums awarded by either the taxing officer or by the deputy registrar in a certificate of costs.”
12. The applicant herein has not stated the time when the bill in the certificate of costs was submitted to the client for settlement as no document was annexed to the application to prove the same. In the case of Mercy Mwangi t/a Mwangi Kingera & Company Advocates vs Invesco Assurance Company Limited [2017] eKLR it was held that the discretion to be exercised by the court comes with the power to reduce the period in which the interest is payable or to extend or alter the rate at which interest is payable or to withhold the entire interest payable in the interests of justice.
13. In the absence of such evidence, I will therefore take that time to be from when the present application was served upon the respondent which unfortunately I do not find an affidavit of service filed herein. But I believe it was served as was stated before court by the applicant’s advocate.
14. Rule 7 of the Advocates Remuneration Order provides for interest on the said costs at 14% per annum until payment in full. In the case of Makhecha and Company Advocates v Central Bank of Kenya [2020] eKLR the court held that Rule 7 of the Advocates Remuneration Order entitles an advocate to charge interest above the normal or applicable rate of twelve (12%) per cent provided that the claim for interest was raised before payment or settlement of the advocate’s bill of costs.
15. The claim for interest herein was raised before settlement of the applicant’s bill of costs.
Determination
16. From the foregoing analysis, I find that the applicant’s notice of motion application dated 12/11/2024 has merit and is hereby allowed in the following terms: -
i. a. Judgment be and is hereby entered for of the applicant for KShs 2,268,615 (Two million, two hundred and sixty-eight thousand six hundred and fifteen only) together with interest thereon at fourteen per cent (14%) per annum calculated from the date when this application was served upon the respondent until payment in full.
ii. There shall be no orders for costs.
17. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 19th day of June 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Njonjo for the Applicant.
N/A for the Respondent.
Carlos: Court Assistant.