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ELCPartially AllowedNotice of Motion dated 17th September 2021 (Advocates Act Section 51 application)· [2022] KEELC 1765 (KLR)

Akide and Company Advocates v Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme [2022] KEELC 1765 (KLR)

High Court of Kenya
3 February 2022
800 words in judgment
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The bottom line

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A Kenyan advocate won judgment for taxed fees of Ksh 1.74 million, but lost interest because he never expressly demanded it in writing.

What this practically means

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Executive summary

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This was a Notice of Motion dated 17th September 2021 by advocate Kenneth Wabwire Akide S.C, brought under Section 51 of the Advocates Act, seeking to have a Certificate of Taxation dated 14th June 2021 adopted as judgment of the Court against the Respondent, a former client, for Kshs. 1,744,326.80, with interest at 14% per annum under Rule 7 of the Advocates (Remuneration) Order. The taxed bill related to work done preparing documentation and attending hearings before the National Land Commission concerning a grant excised from L.R No. 209/6506. The application was served but unopposed; an Affidavit of Service by Jairus Nduru sworn 12th January 2022 confirmed service. The Court found the sole issue to be whether the application was merited. Applying Section 51(2) of the Advocates Act, the Court held the certificate of taxation final and, the Respondent not having disputed it, entered judgment for the certified sum of Kshs. 1,744,326.80. On interest, however, the Court held that Regulation 7 requires not only delivery of the bill but also a claim for interest raised before payment or tender in full; perusal of the demand annexures, including KWA-5, showed no such demand, and the claim for interest was declined. On costs, and given the Respondent's non-resistance, the Court exercised its discretion to direct each party to bear its own costs. The application thus succeeded partially: judgment entered on the taxed sum, interest refused, no costs awarded.

Key legal issues

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01

Whether judgment may be entered on the Certificate of Taxation under Section 51(2) of the Advocates Act

Holding

Judgment was entered for the taxed costs of Kshs. 1,744,326.80 because the Respondent was properly served, did not appear, and did not dispute the Certificate of Taxation

Reasoning

The Court invoked Section 51(2) of the Advocates Act, which makes a taxing officer's certificate final as to the amount of costs unless set aside or altered, and permits entry of judgment where the retainer is not disputed. The Affidavit of Service of Jairus Nduru sworn 12th January 2022 confirmed service of the application. The Respondent neither opposed the application nor disputed the Certificate of Taxation dated 14th June 2021, so judgment for the certified sum followed.

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02

Whether the Applicant was entitled to interest at 14% per annum under Regulation 7 of the Advocates (Remuneration) Order

Holding

The claim for interest was declined because there was no evidence that a claim for interest was raised before the bill was paid or tendered in full

Reasoning

Regulation 7 permits an advocate to charge interest at 14% per annum on disbursements and costs from the expiration of one month from delivery of the bill, provided the claim for interest was raised before the bill amount was paid or tendered in full. The Court held that the regulation requires not only service of the bill but also an express demand for interest. Perusal of annexure KWA-5, the demand for settlement of taxed costs, and other annexures disclosed no such demand, so interest could not be awarded.

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03

Costs of the application

Holding

Each party was directed to bear its own costs because the Respondent did not resist the application

Reasoning

The Court reaffirmed that costs are a matter of judicial discretion, to be exercised having regard to the outcome of the case and the circumstances of each case. Since the Respondent did not oppose the application, the Court directed each party to bear its own costs rather than awarding costs to the successful Applicant.

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Legal principles established

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  • Under Section 51(2) of the Advocates Act, a certificate of taxation is final as to the amount of costs unless set aside or altered by the Court, and judgment may be entered for the sum certified where the retainer is not disputed
  • Under Regulation 7 of the Advocates (Remuneration) Order, an advocate is entitled to interest at 14% per annum only where one month has lapsed from delivery of the bill to the client AND a claim for interest was raised before payment or tender in full

Court orders

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  1. 1.Judgment be entered in favour of the Applicant against the Respondent for Ksh 1,744,326.80
  2. 2.The claim for interest is declined
  3. 3.Each party to bear its own costs of the application

Authorities

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Legislation

  • Advocates ActSection 51(2)
  • Advocates (Remuneration) OrderRule 7
Jurisdiction invoked
Section 51(2) of the Advocates Act and Rule 7 of the Advocates (Remuneration) Order

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, "Akide and Company Advocates v Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme [2022] KEELC 1765 (KLR)", Case Analysis (2022). Notice of Motion dated 17th September 2021 (Advocates Act Section 51 application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1765/eng@2022-02-03

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