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ELCAllowedMiscellaneous Application (arising from High Court Miscellaneous Application Number 332 of 2016 (Nakuru))· [2019] KEELC 2466 (KLR)

D.N. Ikua & Mwangi F.N. t/a Ikua, Mwangi & Company Advocates v Gideon Moi [2019] KEELC 2466 (KLR)

High Court of Kenya
15 July 2019
DOD. O. Ohungo
915 words in judgment
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The bottom line

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Kenya's High Court confirmed that advocates can get judgment directly on a taxed costs certificate by Notice of Motion without filing a fresh lawsuit.

What this practically means

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Executive summary

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The applicant advocate filed a bill of costs dated 19th September 2016, originally filed as High Court Miscellaneous Application Number 332 of 2016 (Nakuru), which was taxed at KShs 1,557,646 on 22nd August 2017. To recover the taxed costs, the applicant moved the court by Notice of Motion dated 25th January 2018 seeking that the Certificate of Taxation be adopted as a decree of the court and that leave be granted to execute, with costs of the application. The respondent opposed through grounds of opposition, contending that he never instructed the applicant, that the certificate was not served on him in person, that there is no legal provision for judgment and decree by way of Notice of Motion, and that under sections 48 and 49 of the Advocates Act a plaint must be filed and a decree issued before execution. The matter had been transferred from Lady Justice J. Mulwa owing to jurisdictional concerns. Justice D. O. Ohungo found that both liability and quantum were not in dispute, noting a consent of 12th October 2017 in which the parties agreed the costs be retained at KShs 1,557,646 and paid within 30 days. Relying on section 51(2) of the Advocates Act, Evans Thiga Gaturu v Kenya Commercial Bank and Lubulellah & Associates v N K Brothers, and Article 159(2)(d) of the Constitution, the court entered judgment for the applicant for KShs 1,557,646, ordered issuance of a decree and execution under the Civil Procedure Rules, and awarded the applicant the costs of the motion.

Key legal issues

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Whether judgment for taxed costs may be entered by way of Notice of Motion under section 51(2) of the Advocates Act

Holding

Yes. The certificate of the taxing officer is final as to the amount of costs unless set aside or altered, and where the retainer and quantum are not in dispute the court may order judgment for the certified sum notwithstanding procedural objections.

Reasoning

The court held that the present application was properly brought under Section 51(2) of the Advocates Act, whose terms permit the court to make such order as it thinks fit, including judgment for the sum certified where the retainer is not disputed. Both liability and quantum were not in dispute, particularly given the consent of 12th October 2017 fixing costs at KShs 1,557,646. Entering judgment on a Motion aligned with Article 159(2)(d) of the Constitution on procedural technicalities, and supported by the authorities cited.

p. 1

Legal principles established

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  • Where liability and quantum of taxed costs are not in dispute, the court may enter judgment for the advocate on the certificate of taxation under section 51(2) of the Advocates Act.

Court orders

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  1. 1.Judgment entered for the applicant and against the respondent for KShs 1,557,646 being the amount stated in the Certificate of Taxation issued on 22nd August 2017
  2. 2.Decree in respect of the aforesaid sum to be issued in the usual manner provided within the Civil Procedure Rules and execution thereof to be equally done in the usual manner provided within the Civil Procedure Rules
  3. 3.Costs of Notice of Motion dated 25th January 2018 awarded to the applicant
Jurisdiction invoked
Section 51(2) of the Advocates Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "D.N. Ikua & Mwangi F.N. t/a Ikua, Mwangi & Company Advocates v Gideon Moi [2019] KEELC 2466 (KLR)", Case Analysis (2019). Miscellaneous Application (arising from High Court Miscellaneous Application Number 332 of 2016 (Nakuru)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2466/eng@2019-07-15

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