1. By an application dated 8.11.25, the Applicant seeks that judgment be entered in its favour against the Respondents in the sum of Kshs. 365,400/= as per the certificate of taxation dated 30.9.25. The Applicant also seeks costs and interest on the taxed sum.
2. The certificate of costs was issued pursuant to the taxation of an advocate/client bill of costs dated 29.7.25. The Applicant avers that it acted for the Respondents in the purchase of a parcel of land. Following the Respondents’ failure to pay the legal fees, the Applicant filed the bill of costs which was taxed. The certificate of costs that was issued has not been appealed against or set aside. The Applicant thus urged that judgment be entered for the taxed amount as prayed.
3. The Application was opposed vide a replying affidavit sworn on 23.3.26 by the 1st Respondent. He averred that he was not aware of HCCOMMISC/E011/2025 as he was never served and did not participate in the same. He further denied receiving the purported demand letter dated 13.10.25. He asserted that the present Application is in bad faith and an afterthought as the Application and lower court matter were resolved in 2022. Further that they never purchased the property and that because of this, parties agreed that the same be shelved and that the only offered to pay consultation fee.
4. In a further affidavit sworn on 8.4.26, Ruttoh Jelimo Erica averred that the Respondents were duly served the bill of costs and notice of taxation on 11.8.25 at their residence in Sultan Villa at Mtangani Road; that the process server made a return of service indicating that the Respondents had declined to sign receipt; that she also effected service via email; that the Respondents were also served with the letter dated 13.10.25 and they have not told the Court how they came to know of the said letter; that the Respondents approached the Applicant with a request for mode of payment which the Applicant declined in a letter.
5. There is on record, an affidavit of service sworn by Kahindi Heri Mathias a process server, indicating that the Respondents were served with the bill of costs and notice of taxation on 11.8.25 at their home, Sultan Villa along Mtangani Road, but that they declined to sign the same. There is also an affidavit of service by Rutto Jelimo Erica indicating that she served the said bill of costs and notice of taxation upon the Respondents via their email address. The Respondents have not denied that they live in Sultan Villa or that the email address used belongs to them.
6. It is settled that there is a presumption of service as stated in an affidavit of service. Where a party denies service, the burden is placed upon such party, to demonstrate that there was no service.
7. In the present case, the Respondents have disputed service. They have however not discharged the burden laid upon them to prove that service was not duly effected. On this point I am guided by the holding in Shadrack Arap Baiywo v Bodi Bach [1987] KECA 69 (KLR), where the Court of Appeal stated:
There is a qualified presumption in favour of the process server recognized in M B Automobile v Kampala Bus Service, [1966] EA 480 at page 484 as having been the view taken by the Indian Courts in construing similar legislation. On Chitaley and Annaji Rao; The Code of Civil Procedure Volume II page 1670, the learned commentators say:
“3. Presumption as to service – There is a presumption of services as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross examination given to those who deny the service.”
8. Having disputed service, the Respondents could have applied for cross examination of the deponents of the affidavits of service, which they did not. I am therefore satisfied that service of the bill of costs and notice of taxation were duly served upon the Respondents. They just chose not to participate in the taxation proceedings.
9. The jurisdiction of this Court to enter judgment for the sum certified to be due to an advocate upon taxation of a bill of costs is contained in the Advocates Act and the Advocates Remuneration Order. 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.
10. The certificate of taxation dated 30.9.25 that was issued by the taxing officer in favour of the Applicant has neither been set aside nor altered by the Court. As per the foregoing provision, the certificate of costs is final as to the amount contained therein. Section 51(2) empowers the Court to make such order as it thinks fit, including an order that judgment be entered for the sum certified to be due with costs.
11. Paragraph 7 of the Advocates Remuneration Order allows an advocate to charge interest on his costs and disbursements as follows:
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.
12. The rate of interest which an advocate may charge is set at 14% per annum. This interest is chargeable from the expiration of 1 month from delivery by the advocate of the bill to his client.
13. As indicated herein, the Respondents was served with the notice of taxation and bill of costs on 11.8.25. The Applicant is therefore entitled to charge interest from the expiration of one month from the delivery of its bill to the Respondents.
14. In view of the foregoing, the Court finds that the Application dated 8.11.25 is merited. Judgment is hereby entered in favour of the Applicant as against the Respondents in the sum of Kshs. 365,400/= as per the certificate of taxation together with interest at 14% per annum from 11.9.25. The Applicant shall have costs.
DATED, SIGNED and DELIVERED in MALINDI this 18th day of September 2026
2. The certificate of costs was issued pursuant to the taxation of an advocate/client bill of costs dated 29.7.25. The Applicant avers that it acted for the Respondents in the purchase of a parcel of land. Following the Respondents’ failure to pay the legal fees, the Applicant filed the bill of costs which was taxed. The certificate of costs that was issued has not been appealed against or set aside. The Applicant thus urged that judgment be entered for the taxed amount as prayed.
3. The Application was opposed vide a replying affidavit sworn on 23.3.26 by the 1st Respondent. He averred that he was not aware of HCCOMMISC/E011/2025 as he was never served and did not participate in the same. He further denied receiving the purported demand letter dated 13.10.25. He asserted that the present Application is in bad faith and an afterthought as the Application and lower court matter were resolved in 2022. Further that they never purchased the property and that because of this, parties agreed that the same be shelved and that the only offered to pay consultation fee.
4. In a further affidavit sworn on 8.4.26, Ruttoh Jelimo Erica averred that the Respondents were duly served the bill of costs and notice of taxation on 11.8.25 at their residence in Sultan Villa at Mtangani Road; that the process server made a return of service indicating that the Respondents had declined to sign receipt; that she also effected service via email; that the Respondents were also served with the letter dated 13.10.25 and they have not told the Court how they came to know of the said letter; that the Respondents approached the Applicant with a request for mode of payment which the Applicant declined in a letter.
5. There is on record, an affidavit of service sworn by Kahindi Heri Mathias a process server, indicating that the Respondents were served with the bill of costs and notice of taxation on 11.8.25 at their home, Sultan Villa along Mtangani Road, but that they declined to sign the same. There is also an affidavit of service by Rutto Jelimo Erica indicating that she served the said bill of costs and notice of taxation upon the Respondents via their email address. The Respondents have not denied that they live in Sultan Villa or that the email address used belongs to them.
6. It is settled that there is a presumption of service as stated in an affidavit of service. Where a party denies service, the burden is placed upon such party, to demonstrate that there was no service.
7. In the present case, the Respondents have disputed service. They have however not discharged the burden laid upon them to prove that service was not duly effected. On this point I am guided by the holding in Shadrack Arap Baiywo v Bodi Bach [1987] KECA 69 (KLR), where the Court of Appeal stated:
There is a qualified presumption in favour of the process server recognized in M B Automobile v Kampala Bus Service, [1966] EA 480 at page 484 as having been the view taken by the Indian Courts in construing similar legislation. On Chitaley and Annaji Rao; The Code of Civil Procedure Volume II page 1670, the learned commentators say:
“3. Presumption as to service – There is a presumption of services as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross examination given to those who deny the service.”
8. Having disputed service, the Respondents could have applied for cross examination of the deponents of the affidavits of service, which they did not. I am therefore satisfied that service of the bill of costs and notice of taxation were duly served upon the Respondents. They just chose not to participate in the taxation proceedings.
9. The jurisdiction of this Court to enter judgment for the sum certified to be due to an advocate upon taxation of a bill of costs is contained in the Advocates Act and the Advocates Remuneration Order. 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.
10. The certificate of taxation dated 30.9.25 that was issued by the taxing officer in favour of the Applicant has neither been set aside nor altered by the Court. As per the foregoing provision, the certificate of costs is final as to the amount contained therein. Section 51(2) empowers the Court to make such order as it thinks fit, including an order that judgment be entered for the sum certified to be due with costs.
11. Paragraph 7 of the Advocates Remuneration Order allows an advocate to charge interest on his costs and disbursements as follows:
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.
12. The rate of interest which an advocate may charge is set at 14% per annum. This interest is chargeable from the expiration of 1 month from delivery by the advocate of the bill to his client.
13. As indicated herein, the Respondents was served with the notice of taxation and bill of costs on 11.8.25. The Applicant is therefore entitled to charge interest from the expiration of one month from the delivery of its bill to the Respondents.
14. In view of the foregoing, the Court finds that the Application dated 8.11.25 is merited. Judgment is hereby entered in favour of the Applicant as against the Respondents in the sum of Kshs. 365,400/= as per the certificate of taxation together with interest at 14% per annum from 11.9.25. The Applicant shall have costs.
DATED, SIGNED and DELIVERED in MALINDI this 18th day of September 2026