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Court of AppealDismissedKisumu Civil Appeal (ruling of Ochieng, J in Kisumu High Court Misc Application No 63 of 2018)· [2023] KECA 1398 (KLR)

Otieno, Ragot & Company Advocates v Kenindia Assurance Co. Ltd

Court of Appeal
24 November 2023
JNJoel NgugiPKP. O. KiageMNMumbi Ngugi
4,593 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that advocates must claim 14% interest in their Bill of Costs itself, not later during enforcement proceedings.

What this practically means

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Executive summary

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This Court of Appeal judgment, delivered at Kisumu on November 24, 2023 by Ngugi, JA with concurring judgments by Kiage, JA and Mumbi Ngugi, JA, dealt with a single issue: whether an advocate may charge the 14% per annum interest allowable under rule 7 of the Advocates Remuneration Order on a taxed Bill of Costs when that interest was never included in the original bill served on the client and taxed. The appellant advocate had its bill of costs taxed at Kshs 57,161 and a certificate of costs issued; it then applied under section 51(2) of the Advocates Act for adoption of the certificate as judgment and, for the first time, sought 14% interest from one month after service of the bill. The High Court (Ochieng, J) adopted the certificate but awarded interest only at court rates from the date of its ruling. The Court of Appeal dismissed the appeal, holding that the Bill of Costs must contain the totality of the advocate's claims so the client has notice; once a bill is taxed and a certificate issued, the advocate cannot add claims, and the only recourse against an omission is a reference under rule 11. Kiage, JA emphasised the proviso in rule 7 requiring the interest claim to be raised before payment or tender in full, and suggested advocates place a cautionary notice on bills. The court affirmed the High Court decision, dismissed the appeal, and ordered each party to bear its own costs, noting conflicting High Court decisions on the topic. This binding rule now requires advocates to plead rule 7 interest in the bill itself.

Key legal issues

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01

Whether 14% interest under rule 7 can be claimed after taxation if not included in the Bill of Costs

Holding

No. The claim for interest must be included in the Bill of Costs and litigated before the Taxing Master; if omitted, it can only be pursued via a rule 11 reference, not in section 51(2) adoption proceedings.

Reasoning

The Bill of Costs serves to notify the client of the totality of the advocate's claims and is the only basis on which taxation proceeds. Once taxed and a Certificate of Costs issued, the certified sum is the totality of the client's indebtedness. Permitting piecemeal claims would remove the incentive for clients to pay promptly or object, and for advocates to avoid delaying bills to accrue interest. Policy requires full notice of all claims at the earliest stage.

p. 10
02

Whether the High Court judge misdirected himself by awarding interest at court rates from the date of the ruling

Holding

No. In the absence of a rule 7 claim in the bill, the court's award of interest at court rates under its general discretion was proper and not an abuse of discretion.

Reasoning

The advocate neither claimed 14% interest in the bill nor filed a rule 11 reference challenging its omission. The certificate of costs was final as to the amount; the only interest available was at court rates at the court's discretion under section 26 of the Civil Procedure Act. The learned judge therefore did not misapprehend the law or improperly exercise his discretion in disallowing the 14% claim and awarding interest at court rates.

p. 10

Legal principles established

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  • An advocate claiming 14% interest under rule 7 of the Advocates Remuneration Order must include the claim in the Bill of Costs served on the client and litigated before the Taxing Master; the claim cannot be raised for the first time in section 51(2) adoption/enforcement proceedings.
  • Once a Bill of Costs is taxed and a Certificate of Costs issued, the door is closed on the advocate to add further claims against the client based on the representation; dissatisfaction lies only in a reference under rule 11.
  • Where no reference under rule 11 is filed, the Certificate of Costs amount is final, subject only to interest at court rates in the discretion of the court adopting the certificate as judgment.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear its own costs
On appeal from
High Court
Kisumu HC Misc Application No 63 of 2018 (Kisumu HC Misc No 63 of 2017)
Jurisdiction invoked
First appellate appeal to the Court of Appeal against the High Court ruling; no specific constitutional or statutory invocation beyond the Advocates Act and the Advocates Remuneration Order is stated in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Otieno, Ragot & Company Advocates v Kenindia Assurance Co. Ltd", Case Analysis (2023). Kisumu Civil Appeal (ruling of Ochieng, J in Kisumu High Court Misc Application No 63 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1398/eng@2023-11-24

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