1. Before me for determination are two applications, one by the Advocate/Applicant dated 22nd March 2023 seeking to have judgment entered in favour of the Applicant as against the Respondent in respect of the Certificate of Taxation dated 7th October 2022. The other application is by the Client/Respondent dated 17th October 2022 seeking, in the main, an order for the setting aside Certificate of Taxation of 7th October 2023 and to have the taxation be heard afresh.
2. The first in time was the Client’s/Respondent's application dated 17th October 2022 for the setting aside Certificate of Taxation of 7th October 2023 and to have the taxation be heard afresh. The application was supported by the affidavit sworn on 17th October 2022 by Herbert Gideon Omondi Otieno, the 1st Respondent herein.
3. In the affidavit, the Client/1st Respondent deponed that the taxation was heard in his absence due to the failure of the Applicant/Advocate to serve upon the Respondents the notice for the taxation. It was further deponed by the 1st Respondent that the Bill of Costs was null and void since the same had been filed by an incompetent person who did not have a practicing certificate at the time of the engagement.
4. In response to the Client’s/Respondent’s application, the Advocate/Applicant filed his replying sworn on 30th September 2024. The gist of the Applicant’s response is that the notice of Taxation of the Bill of Costs in question was duly served upon the Respondent to the satisfaction of the Taxing Master. The Advocate also deponed that contrary to the Client’s/Respondent’s allegations, he had a valid practicing certificate for the year in question.
5. No submission was filed by the Respondent in the matter but sought to rely on his affidavit of 17th October 2022 in support of his application as well as in opposition to the Advocate’s/Applicant’s application dated 22nd March 2023, seeking judgment against the Certificate of Costs dated 7th October 2022.
6. Regarding the Advocate’s/Applicant's application of 22nd March 2023 seeking judgment in respect of Certificate of Costs dated 7th October 2022, Mr.S. Gichuki Waigwa, an Advocate in the firm of the Applicant in his affidavit sworn on 22nd March 2023 in support of the application stated that the firm offered professional legal services to the Respondent “in the sale of all those piece of land known as NAIROBI/BLOCK/ 140/782/65 (UNIT NUMBER 65 AND 125 ONE THOUSANDTH SHARES IN THE COMMON PROPERTY THEREIN, owned jointly by the Respondents.
7. It was further deponed by the Advocate that the Respondents failed to pay the fees for the professional services rendered prompting the Applicant to file the Bill of Costs dated 13th April 2022, which Bill was on 7th October 2022, taxed at Kshs. 148,480/= by the Taxing Master and a Certificate of Costs accordingly issued.
8. That following the issuance of the Certificate of Taxation, the Applicant, vide his letter of 12th October 2022, the Applicant wrote to the Respondents asking them to settle the taxed costs, but that the Respondent failed, hence the instant application.
9. The Applicant filed his brief submissions dated 30th September 2024 and relied on the same as his arguments in support of his application.
Determination
10. I have carefully considered the two applications.
11. I note that the Clients’/Respondent’s Application dated 17th October 2022 which expressed to have been brought under Section 3A of the Civil Procedure Act seeks to have the Certificate of Costs of 7th October 2022 set aside on the basis that the no notice of taxation was served upon the Respondents by the Advocate/Applicant. It is further a ground for the application that the Bill of Costs was null and void since it was filed by a person who did not have a valid practicing certificate for the year in question. However, a perusal of the affidavit in support of the application reveals that no proof was provided by the Respondent that the Advocate did not have a practicing certificate for the year in question. Similarly, the Respondent simply stated that he was not served with the taxation notice for the Bill of Costs.
12. It is trite law that under Section 107 – Section 109 of the Evidence Act, Cap 80 (Laws of Kenya) the burden is on whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts to prove that those facts exist. The issue of the burden of proof has two facets. There is the legal burden of proof and the evidential burden of proof. This legal principle was discussed in Bungoma High Court Election Petition No. 2 of 2017 Suleiman Kasuti Murunga v IEBC & 2 Others [2018] eKLR where the Court stated as follows: -
“26. The Petitioner on whom the legal burden of proof lies may or may not adduce sufficient and admissible evidence in proof of any of the allegations in the Petition. On one hand, if no sufficient evidence is adduced to the required standard, then the allegation(s) fail and it all ends there. On the other hand, if the evidence is adduced to the satisfaction of the Court that an election ought to be impugned, then it becomes the burden of the Respondent(s) to adduce evidence rebutting the allegations and to demonstrate that the law was complied with and/or that the irregularities did not affect the result of the election. At that point, the burden is said to shift to the Respondents. That is the evidential burden of proof.”
13. It, therefore, follows that whereas the legal burden of proof is static and rests on the Claimant throughout the trial, the evidential burden of proof may shift to the other party(ies) depending on the nature and effect of evidence adduced by the Claimant. Where no sufficient evidence is adduced by the Claimant, then the inquiry ends there and the Claim fails.
14. In the instant case, the Client/Respondent, in his affidavit, simply claimed that the Advocate/Applicant did not have a valid practicing certificate for the year in question. While it was indicated in paragraph 4 of the affidavit that a letter from LSK was attached annexed and marked as HOI, no such letter was in fact attached. The same applies to the allegation that they were not served with the taxation notice for the Bill of Costs.
15. The Respondent/Client having failed to discharge the evidentiary burden placed on him by the law, this court is unable to grant the prayers sought in the Respondent/Client’s application dated 17th October 2022. Accordingly, the same is hereby dismissed with costs to the Advocate/Client.
16. Having dismissed the Client’s/Respondent’s application for setting aside the Certificate of Costs dated 7th October 2022 by the Taxing Master, I will therefore proceed and consider the Advocate’s/Applicant’s application dated 22nd March 2023 to have Judgment entered for the Applicant against the Respondents in respect of the Certificate of Costs.
17. 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 Ndung’u Githuka & Co. Advocates v. Geoffrey Moriaso Ole Mailoy [2019]eKLR.
18. 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.”
19. 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.”
(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.”
20. 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.”
21. 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.
22. Further, in view of the fact that the Client’s Application dated 17th October 2022 opposing the adoption of the taxed costs as a judgment has been dismissed as indicated above, there is currently no legal basis for not allowing the Advocate’s/Applicant’s application.
23. 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
24. The upshot of this court’s decision is that the Advocate’s Notice of Motion application dated 22nd March 2022 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 One Hundred and Forty-Three Thousand Four Hundred and Eighty Only (Kshs. 143,480/=) together with interest thereon at fourteen (14%) per cent per annum calculable after thirty (30) days from 7th October 2022 when the Certificate of Costs was issued.
ii. Costs of this application be awarded to the Advocate and is hereby assessed at Kshs. 20,000/-
iii. File closed
25. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
16TH DAY OF DECEMBER 2024
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Waigwa…….………...for Applicant/Advocate
Okach……….……...for Respondent/Client