1. For determination is the Applicant’s Notice of Motion application dated 13th August 2024, filed pursuant to section 51 (1) (2) of the Advocates Act, order 51 of the Civil Procedure Rules.
2. The application seeks for orders that: -
i. This Honourable Court be pleased to enter judgement in favour of the Applicant herein for Kenya Shillings Five Hundred and Twenty-Seven Thousand, Five Hundred and Ninety-Seven Only (Kshs.527 597.00) being the Sum of Costs taxed by the Taxing Officer (Hon. C. L. Adisa).
ii. This Honourable Court be pleased to Order that the taxed sum of Kenya Shillings Five Hundred and Twenty-Seven Thousand, Five Hundred and Ninety-Seven Only (Kshs.527, 597.00) do attract interest at Fourteen Per cent (14%) from the date of taxation until payment in full.
iii. The costs of this Application be provided for.
3. The application is based on the grounds on the face of the application and is further supported by the affidavit of Brian Nthei, Advocate, sworn on 13th August 2024.
4. In his affidavit, the Advocate depones that his firm offered professional legal services to the Respondent in the Milimani Chief Magistrate's Commercial Cause No. E10487 of 2021: Garun Investments Limited-versus-Mustafa Mwalimu Musa, until such a time when the Respondent appoints another firm of Advocates to take over the conduct of the matter in place of the Applicant.
5. The Advocate further deponed that the firm consequently filed an Advocate-Client Bill of Costs dated 4th December 2023, which was taxed at Kenya Shillings Five Hundred and Twenty-Seven Thousand, Five Hundred and Ninety-Seven Only (Kshs.527, 597.00) and a Certificate of Taxation dated 19th July 2024 issued in that regard.
6. That it is due to the Respondent’s failure to settle the fees that necessitated the instant application. It is further the Advocate’s position that there is no dispute as to retainer, and that no Reference has been filed against the Taxing master’s Ruling and the Certificate of Costs dated 19th July 2024.
7. The Application was canvassed by way of written submissions. The Advocate/Applicant filed submissions dated 21st January 2025, while no submissions were filed on behalf of the Respondent, who did not oppose the application.
Analysis and determination:
8. This is an application seeking to have the Court enter judgment in respect of a Certificate of Costs dated 19th July 2024, whereby the taxing master taxed the applicant’s Bill of Costs Five Hundred and Twenty-Seven Thousand, Five Hundred and Ninety-Seven Only (Kshs.527, 597.00). The Application is brought under Section 51(2) of the Advocates Act, which states:-
“ 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. 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, no pending reference under Paragraph 11 of the Advocates Remuneration Order challenging the decision of the said Taxing Master has been brought to the attention of the Court.
10. Further, it is also evident that the Client has not opposed the adoption of the taxed costs as a judgment sum.
11. 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 the taxed amount.
12. On interest, 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.”
13. In the case of Amondi & Co Advocates v County Government of Kisumu [2021] eKLR, the Court held as follows:-
“In my considered opinion, when the provisions of the Advocates Act specify how interest may be awarded on the disbursements and costs, whether by scale or otherwise, it must be deemed that the said provisions oust the more general provisions of the Civil Procedure Act. I so hold because it is a cardinal rule of interpretation that when a statute specifies something as being applicable to matters which the statute applies, the said specification ousts other more generalized statutory provisions. I hold that the provisions of the Civil Procedure Act cannot oust the more specific provisions of the Advocates Act which were enacted to address the issues of Advocates’ costs. It therefore follows that under the Advocates Act, the Court does not have discretion to award any rate of interest, even if the Court deems such a rate as reasonable in the circumstances. Whilst Section 26 of the Civil Procedure Act authorizes the Court to award any reasonable rate of interest; the Advocates Act specifies the rate as 14% per annum. And whilst under the Civil Procedure Act the Court has discretion to award interest at 3 different levels, the Court lacks such discretion under the Advocates Act. Under the Advocates Act, the interest may be awarded from the expiration of one month from the date when the Bill was delivered by the Advocate to the Client. When the discretion of the Court has already been so constrained, I hold the considered view that it would be unjust to the Advocate to either withhold interest altogether or to reduce it on account of the consideration that the Client was a public entity. However, the Advocate is not entitled to interest from the date when he filed the Bill of Costs in Court. I so hold because the quantum sought in the Bill of Costs was much more than the sum which the learned Taxing Officer finally awarded. In my considered view, the Client became aware of the “Bill” on the date when the Ruling on Taxation was delivered Rule 7 of the Advocates Remuneration Order appears to have been designed to allow a client a period of 30 days from the date when the Advocate delivered his bill. In my considered opinion, justice would be served by allowing the Client 30 days from the date when the Ruling on Taxation was delivered. Accordingly, I order that Judgment be entered in favour of the Advocate/Applicant for the taxed costs, together with interest thereon at 14% per annum, from the expiration of 30 days from the date when the Ruling was delivered.”
14. I concur with the authority above and grant interest at the rate of 14% per annum, from the expiration of 30 days from the date of the Certificate of Costs, being 19th July 2024, until payment in full.
Disposition
15. The upshot of this court’s decision is that the Advocate’s Notice of Motion application dated 13th August 2024 is merited and the same is hereby allowed in the following terms: -
i. Judgment be and is hereby entered in favor of the Advocate as against the Respondent in the sum of Kenya Five Hundred and Twenty-Seven Thousand, Five Hundred and Ninety-Seven Only (Kshs.527, 597.00) as per Certificate of Taxation dated 19th July 2024, with interest thereon at 14% per annum, from the expiration of 30 days from 19th July 2024, until payment in full.
ii. Costs of this application are awarded to the Advocate and is hereby assessed at Kshs. 20,000/-
iii. File closed
16. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
19TH DAY OF JUNE 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Nthei………………………..for Advocate/Applicant
N/A….……………………...for Respondent
2. The application seeks for orders that: -
i. This Honourable Court be pleased to enter judgement in favour of the Applicant herein for Kenya Shillings Five Hundred and Twenty-Seven Thousand, Five Hundred and Ninety-Seven Only (Kshs.527 597.00) being the Sum of Costs taxed by the Taxing Officer (Hon. C. L. Adisa).
ii. This Honourable Court be pleased to Order that the taxed sum of Kenya Shillings Five Hundred and Twenty-Seven Thousand, Five Hundred and Ninety-Seven Only (Kshs.527, 597.00) do attract interest at Fourteen Per cent (14%) from the date of taxation until payment in full.
iii. The costs of this Application be provided for.
3. The application is based on the grounds on the face of the application and is further supported by the affidavit of Brian Nthei, Advocate, sworn on 13th August 2024.
4. In his affidavit, the Advocate depones that his firm offered professional legal services to the Respondent in the Milimani Chief Magistrate's Commercial Cause No. E10487 of 2021: Garun Investments Limited-versus-Mustafa Mwalimu Musa, until such a time when the Respondent appoints another firm of Advocates to take over the conduct of the matter in place of the Applicant.
5. The Advocate further deponed that the firm consequently filed an Advocate-Client Bill of Costs dated 4th December 2023, which was taxed at Kenya Shillings Five Hundred and Twenty-Seven Thousand, Five Hundred and Ninety-Seven Only (Kshs.527, 597.00) and a Certificate of Taxation dated 19th July 2024 issued in that regard.
6. That it is due to the Respondent’s failure to settle the fees that necessitated the instant application. It is further the Advocate’s position that there is no dispute as to retainer, and that no Reference has been filed against the Taxing master’s Ruling and the Certificate of Costs dated 19th July 2024.
7. The Application was canvassed by way of written submissions. The Advocate/Applicant filed submissions dated 21st January 2025, while no submissions were filed on behalf of the Respondent, who did not oppose the application.
Analysis and determination:
8. This is an application seeking to have the Court enter judgment in respect of a Certificate of Costs dated 19th July 2024, whereby the taxing master taxed the applicant’s Bill of Costs Five Hundred and Twenty-Seven Thousand, Five Hundred and Ninety-Seven Only (Kshs.527, 597.00). The Application is brought under Section 51(2) of the Advocates Act, which states:-
“ 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. 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, no pending reference under Paragraph 11 of the Advocates Remuneration Order challenging the decision of the said Taxing Master has been brought to the attention of the Court.
10. Further, it is also evident that the Client has not opposed the adoption of the taxed costs as a judgment sum.
11. 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 the taxed amount.
12. On interest, 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.”
13. In the case of Amondi & Co Advocates v County Government of Kisumu [2021] eKLR, the Court held as follows:-
“In my considered opinion, when the provisions of the Advocates Act specify how interest may be awarded on the disbursements and costs, whether by scale or otherwise, it must be deemed that the said provisions oust the more general provisions of the Civil Procedure Act. I so hold because it is a cardinal rule of interpretation that when a statute specifies something as being applicable to matters which the statute applies, the said specification ousts other more generalized statutory provisions. I hold that the provisions of the Civil Procedure Act cannot oust the more specific provisions of the Advocates Act which were enacted to address the issues of Advocates’ costs. It therefore follows that under the Advocates Act, the Court does not have discretion to award any rate of interest, even if the Court deems such a rate as reasonable in the circumstances. Whilst Section 26 of the Civil Procedure Act authorizes the Court to award any reasonable rate of interest; the Advocates Act specifies the rate as 14% per annum. And whilst under the Civil Procedure Act the Court has discretion to award interest at 3 different levels, the Court lacks such discretion under the Advocates Act. Under the Advocates Act, the interest may be awarded from the expiration of one month from the date when the Bill was delivered by the Advocate to the Client. When the discretion of the Court has already been so constrained, I hold the considered view that it would be unjust to the Advocate to either withhold interest altogether or to reduce it on account of the consideration that the Client was a public entity. However, the Advocate is not entitled to interest from the date when he filed the Bill of Costs in Court. I so hold because the quantum sought in the Bill of Costs was much more than the sum which the learned Taxing Officer finally awarded. In my considered view, the Client became aware of the “Bill” on the date when the Ruling on Taxation was delivered Rule 7 of the Advocates Remuneration Order appears to have been designed to allow a client a period of 30 days from the date when the Advocate delivered his bill. In my considered opinion, justice would be served by allowing the Client 30 days from the date when the Ruling on Taxation was delivered. Accordingly, I order that Judgment be entered in favour of the Advocate/Applicant for the taxed costs, together with interest thereon at 14% per annum, from the expiration of 30 days from the date when the Ruling was delivered.”
14. I concur with the authority above and grant interest at the rate of 14% per annum, from the expiration of 30 days from the date of the Certificate of Costs, being 19th July 2024, until payment in full.
Disposition
15. The upshot of this court’s decision is that the Advocate’s Notice of Motion application dated 13th August 2024 is merited and the same is hereby allowed in the following terms: -
i. Judgment be and is hereby entered in favor of the Advocate as against the Respondent in the sum of Kenya Five Hundred and Twenty-Seven Thousand, Five Hundred and Ninety-Seven Only (Kshs.527, 597.00) as per Certificate of Taxation dated 19th July 2024, with interest thereon at 14% per annum, from the expiration of 30 days from 19th July 2024, until payment in full.
ii. Costs of this application are awarded to the Advocate and is hereby assessed at Kshs. 20,000/-
iii. File closed
16. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
19TH DAY OF JUNE 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Nthei………………………..for Advocate/Applicant
N/A….……………………...for Respondent