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Court of AppealAllowedNakuru High Court Miscellaneous Application (Notice of Motion dated 13th July, 2006)· [2010] KECA 184 (KLR)

MUTHOGA GATURU & CO. ADVOCATE v GABRIEL WAWERU WANJOHI T/A MOUNTAIN ROCK HOTEL [2010] KECA 184 (KLR)

High Court of Kenya
7 May 2010
392 words in judgment
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The bottom line

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A Kenyan advocate whose bill was taxed and unchallenged can convert the Certificate of Taxation directly into a court judgment for the unpaid fees.

What this practically means

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Executive summary

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The applicants, a firm of advocates, were instructed by the respondent on 6th February 1997 to act in Nakuru C.M.C.C. No. 1558 of 1996 and performed their brief until the respondent withdrew instructions on 13th February 1998. Having been unpaid, the applicants filed a bill of costs which the Deputy Registrar taxed at Kshs. 89,126.85 and issued a Certificate of Taxation. The respondent did not settle the taxed costs, prompting the applicants' Notice of Motion dated 13th July 2006 seeking entry of judgment for the certified sum under section 51(2) of the Advocates Act, paragraph 7 of the Advocates (Remuneration) (Amendment) Order (L.N. 550 of 1997) and Order 50 rule 1 of the Civil Procedure Rules. The respondent filed a preliminary objection contending the application was incompetent, defective and premature, but neither he nor his counsel attended the hearing despite service. Ouko J held that the Certificate of Taxation is prima facie evidence that the bill was taxed at the sum shown and that the amount is final unless set aside or varied; no evidence showed the certificate had been disturbed. The retainer was not disputed. The court accordingly allowed the application in terms of prayer 1, entering judgment for Kshs. 89,126.85, with costs of the application to the applicants. Judgment was delivered at Nakuru on 7th May 2010.

Key legal issues

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01

Effect of an unchallenged Certificate of Taxation

Holding

The Taxation Certificate is prima facie evidence of the taxed amount and that amount is final unless the certificate is set aside or varied; judgment may then be entered under section 51(2).

Reasoning

The taxing officer's certificate stands as conclusive evidence of the sum due. No evidence was presented that the certificate had been set aside or varied by the court, and the respondent, though served, did not attend to oppose the application or pursue the preliminary objection.

p. 2
02

Entry of judgment for advocate's fees under section 51(2) of the Advocates Act

Holding

Where the retainer is not disputed and the costs remain unpaid, the court may order judgment to be entered for the sum certified, with costs.

Reasoning

The applicants were instructed on 6th February 1997 and performed their brief until instructions were withdrawn on 13th February 1998. The bill was taxed at Kshs. 89,126.85, the certificate was unchallenged, and the respondent failed to settle the taxed costs, satisfying the statutory conditions for entry of judgment.

p. 2

Legal principles established

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  • A Certificate of Taxation is final as to the amount of costs covered by it unless set aside or altered by the court, and where the retainer is not disputed the court may order judgment to be entered for the certified sum.

Court orders

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  1. 1.Judgment entered for the applicants against the respondent in the sum of Kshs. 89,126.85 as per prayer 1 of the Notice of Motion dated 13th July, 2006
  2. 2.The application allowed with costs

Authorities

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Legislation

  • Advocates Actsection 51(2)
  • Advocates (Remuneration) (Amendment) Orderparagraph 7 (L.N. 550 of 1997)
  • Civil Procedure RulesOrder 50 rule 1
On appeal from
Taxing Officer (Deputy Registrar, High Court, Nakuru)
Taxation of Bill of Costs; underlying suit Nakuru C.M.C.C. No. 1558 of 1996
Jurisdiction invoked
Section 51(2) of the Advocates Act; paragraph 7 of the Advocates (Remuneration) (Amendment) Order (L.N. 550 of 1997); Order 50 rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "MUTHOGA GATURU & CO. ADVOCATE v GABRIEL WAWERU WANJOHI T/A MOUNTAIN ROCK HOTEL [2010] KECA 184 (KLR)", Case Analysis (2010). Nakuru High Court Miscellaneous Application (Notice of Motion dated 13th July, 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/184/eng@2010-05-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.