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ELCAllowed· [2024] KEELC 4281 (KLR)

C.M Thuku & Company Advocates v Kimani (Environment & Land Miscellaneous Case E216 of 2022) [2024] KEELC 4281 (KLR)

High Court of Kenya
23 May 2024
MOMogeni
1,247 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed that an advocate can turn a taxed Certificate of Costs directly into a judgment, plus 14% yearly interest, without filing a fresh lawsuit.

What this practically means

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Executive summary

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This was an application by an advocate seeking the adoption of a Certificate of Costs as a judgment of the Court under Section 51(2) of the Advocates Act. The advocate-client bill of costs had been taxed on 7/02/2023, and the applicant extracted a Certificate of Taxation dated 22/02/2024. The respondent client's reference dated 3/04/2023 seeking to set aside the taxation was dismissed by the court's ruling of 31/01/2024, leaving the certificate unchallenged. In the present application, the respondent opposed only the award of interest at 14%, contending interest was already factored into the decreed sum. She admitted the bill was taxed and that she had paid Kshs. 300,000, proposing to settle the balance of Kshs. 675,000 by a down payment and monthly instalments of Kshs. 50,000. The applicant submitted the receipts bore no relation to the claim, that interest had been dealt with by the Taxing Master, and that no evidence of hardship justified instalments. Applying Rule 7 of the Advocates Remuneration Order and Section 51(2) of the Advocates Act, and following Musyoka & Wambua Advocates, Lesinko Njororge & Gathogo Advocates and Lubulellah & Associates Advocates, the court held that an unaltered, unchallenged certificate is final as to the amount of costs and judgment follows as of course where retainer is undisputed. Judgment was entered for the advocate for Kshs. 975,000, with interest at 14% per annum from 9/06/2022 until payment in full, plus costs of the application.

Key legal issues

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01

Adoption of Certificate of Taxation as judgment under Section 51(2) of the Advocates Act

Holding

Judgment is entered on the Certificate of Taxation where it has not been set aside or altered and there is no dispute on retainer

Reasoning

The court set out three conditions: costs must have been taxed and certified, the Certificate must not have been set aside, stayed or appealed against, and retainer must be undisputed. Here the respondent's reference seeking to set aside the taxation was dismissed on 31/01/2024, and no dispute on retainer was raised, so the certificate stood final and judgment was properly enterable on application without filing suit.

p. 2
02

Entitlement to interest at 14% per annum on taxed costs

Holding

The advocate is entitled to 14% interest from one month after delivery of the bill, having raised the claim before payment

Reasoning

Rule 7 of the Advocates Remuneration Order permits interest at 14% per annum from expiration of one month from delivery of the bill, provided the claim for interest was raised before the bill was paid or tendered in full. The court found the provision clear and applied it, running interest from 9/06/2022 until payment in full.

p. 2

Legal principles established

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  • A Certificate of Taxation not set aside or altered is final as to the amount of costs and the court may enter judgment on it where retainer is not disputed
  • An advocate may charge interest at 14% per annum on costs if the claim for interest was raised before the bill was paid or tendered in full

Court orders

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  1. 1.Judgment entered for the advocate/applicant in the sum of Kshs. 975,000 in terms of Section 51(2) of the Advocates Act
  2. 2.Interest awarded at the rate of 14% per annum, payable from 9/06/2022 (one month after the bill was tendered) until payment in full
  3. 3.The advocate/applicant awarded the costs of the application

Authorities

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Legislation

  • Advocates ActSection 51(2)
  • Advocates Remuneration OrderRule 7

Cases cited (3)

  • Musyoka & Wambua Advocates vs Rustam Hira Advocate
    (2006) eKLR
  • Lesinko Njororge & Gathogo Advocates vs Invesco Assurance Co. Ltd
    (2021) eKLR
  • Lubulellah & Associates Advocates vs N K Brothers Limited
    (2014) eKLR
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, "C.M Thuku & Company Advocates v Kimani (Environment & Land Miscellaneous Case E216 of 2022) [2024] KEELC 4281 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4281/eng@2024-05-23

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