Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedMisc Application No 51 of 2015· [2019] KEELC 3150 (KLR)

Ondabu and Company Advocates v Julie Kisaka [2019] KEELC 3150 (KLR)

Environment and Land Court
30 May 2019
BOBoaz N. Olao
806 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Bungoma allowed an advocate to recover Kshs 316,419 in taxed legal fees without filing a fresh lawsuit.

What this practically means

#

Executive summary

#
This ruling by Boaz N. Olao, Judge of the Environment and Land Court at Bungoma, determines a Notice of Motion dated 20th March 2017 by John Ondabu Advocate seeking judgment against Julie Kisaka for Kshs. 316,419/=, being the sum certified in a Certificate of Costs taxed on 14th September 2016 by Deputy Registrar C. L. Yalwala. The Respondent had earlier applied to review and set aside the taxation; that application was dismissed in its entirety on 20th January 2017, although the Deputy Registrar inconsistently proceeded to set aside the execution process. The Respondent opposed the Motion, arguing that the taxation had been set aside, that the Applicant could only recover costs by filing a suit, and that she had fully paid and even over-paid the fees. The court held that Section 51(2) of the Advocates Act renders the Certificate of Costs final unless set aside or altered by the Court, and permits entry of judgment for the certified sum where the retainer is not disputed; the Respondent's assertion that a suit was necessary was rejected. Since the application to review the taxation was dismissed and no reference was filed under Rule 11 of the Advocates Remuneration Order, the complaint about over-payment came too late. The court allowed the application as prayed, paving the way for entry of judgment against the Respondent for the taxed sum. No costs order is stated. Written submissions had been agreed after the file suffered administrative delays documented in a letter by Deputy Registrar E. N. Mwenda.

Key legal issues

#
01

Effect of an undisturbed Certificate of Costs

Holding

The Certificate of Costs taxed on 14th September 2016 stands because the application to review it was dismissed in its entirety and no reference was filed; judgment may accordingly be entered for the certified sum.

Reasoning

Section 51(2) of the Advocates Act makes the taxing officer's certificate final unless set aside or altered by the Court. The Deputy Registrar's ruling of 20th January 2017 dismissed the entire application seeking review and setting aside of the taxation, so the certificate remains in force. Having dismissed the entire application, the Deputy Registrar could not then purport to set aside the execution process. With no reference under Rule 11, the Respondent's over-payment complaint came too late.

02

Procedure for recovery of taxed costs

Holding

An advocate is not restricted to filing a suit; judgment may be entered directly under Section 51(2) of the Advocates Act.

Reasoning

The Respondent argued that the Applicant could only recover his costs by filing a suit. The court held that Section 51(2) of the Advocates Act contains no such limitation; where the certificate is unchallenged and the retainer is not disputed, the Court may order judgment to be entered for the sum certified to be due, with costs.

p. 2
03

Whether the Respondent over-paid the advocate

Holding

That question is not open; with the review dismissed and no Rule 11 reference filed, the complaint of over-payment is raised too late.

Reasoning

The Respondent contended she had fully paid and even over-paid the fees and was owed a refund. The court held this was not a matter properly before it, since the application to review the taxed costs had been heard and dismissed and no reference against the Certificate was filed under Rule 11 of the Advocates Remuneration Order, making the complaint academic.

p. 2

Legal principles established

#
  • A Certificate of Costs, unless set aside or altered by the Court, is final as to the amount of costs covered thereby, and where the retainer is not disputed the Court may order judgment to be entered for the sum certified.
  • An advocate need not file a fresh suit to recover taxed costs; judgment may be entered under Section 51(2) of the Advocates Act.
  • Where an application to review taxed costs has been dismissed and no reference under Rule 11 of the Advocates Remuneration Order was filed, a party cannot later complain of over-payment.

Court orders

#
  1. 1.The Applicant's Notice of Motion dated 20th March 2017 is allowed as prayed, namely that judgment be entered against Julie Kisaka in the sum of Kshs. 316,419/=

Authorities

#

Legislation

  • Advocates ActSection 51(2)
  • Advocates Remuneration OrderRule 11
Jurisdiction invoked
Section 51(2) of the Advocates Act (Chapter 16, Laws of Kenya)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ondabu and Company Advocates v Julie Kisaka [2019] KEELC 3150 (KLR)", Case Analysis (2019). Misc Application No 51 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3150/eng@2019-05-30

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