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ELRCPartially AllowedMisc. Application No 9 of 2018· [2021] KEELRC 160 (KLR)

Maina & Partners Advocates v Kwale International Sugar Co Ltd [2021] KEELRC 160 (KLR)

Employment and Labour Relations Court
9 December 2021
738 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court converted an advocate's taxed costs certificate into a judgment, but paused collection until a fee credit dispute is resolved.

What this practically means

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Executive summary

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The Applicant, Kenneth Maina, advocate for the Respondent, Kwale International Sugar Co. Ltd, moved the Court by Notice of Motion dated 12th October 2021 under Section 51(2) of the Advocates Act and Order 11(3) of the Civil Procedure Rules, seeking adoption of a Certificate of Costs dated 2nd October 2018 and issued on 3rd September 2021 into a judgment and decree, with interest at 14% per annum from 2nd October 2018, plus costs of the application. The Deputy Registrar had on 2nd October 2018 taxed the Advocate/Client Bill of Costs dated 7th March 2018 at ksh.126,483.90, while directing that the Respondent be given credit for fees of ksh.1,750,000 paid across a series of twenty-four files. The application was served on the Respondent; in-house counsel confirmed service and stated the Respondent was not opposing. No documents were filed in opposition. The Court found that the certificate had neither been altered nor set aside and was not disputed, and that the retainer was not in issue. Relying on Section 51(2) of the Advocates Act, the Court entered judgment for ksh.126,483.90. However, it declined to award interest at 14% from the 2018 taxation date, instead awarding interest at Court rates from the date of its Ruling. Execution of the decree was suspended until the credit due to the Respondent across the twenty-four files is resolved between the parties. The judgment was delivered at Mombasa on 9th December 2021 via Microsoft Teams owing to COVID-19 restrictions. The ruling is silent on costs of the application.

Key legal issues

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01

Adoption of the Certificate of Costs as a judgment of the Court

Holding

Judgment was entered for the certified sum of ksh.126,483.90 since the certificate had neither been altered nor set aside and the retainer was not disputed

Reasoning

Section 51(2) of the Advocates Act makes the taxing officer's certificate final as to the amount of costs unless set aside or altered by the Court. The Respondent did not oppose the application and did not file any documents in opposition. The Court therefore adopted the certificate and entered judgment for the certified sum.

p. 2
02

Effect of the taxing officer's direction on credit for fees paid in a series of 24 files

Holding

Execution of the decree was stayed pending resolution of the credit issue between the parties

Reasoning

Although the taxing officer gave the Respondent credit of ksh.1,750,000 for fees paid across twenty-four files in the series, the certificate was for ksh.126,483.90. To avoid injustice, the Court entered judgment but restrained execution until the credit issue is sorted out between the parties.

p. 2
03

Interest on the decretal sum

Holding

Interest was awarded at Court rates from the date of the Ruling, not at the 14% sought from the 2018 taxation date

Reasoning

The applicant sought interest at 14% from 2nd October 2018. The Court exercised its discretion and awarded interest at Court rates running only from the date of the Ruling until payment in full.

p. 2

Legal principles established

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  • Under Section 51(2) of the Advocates Act, a taxing officer's certificate of costs is final as to the amount of costs covered thereby unless set aside or altered by the Court, and the Court may enter judgment for the certified sum where the retainer is not disputed

Court orders

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  1. 1.Judgment entered in the sum of ksh.126,483.90 being the Applicant's costs certified by the taxing officer vide the Certificate of Costs dated 2nd October 2018 and issued on 3rd September 2021
  2. 2.The decree shall not be executed against the Respondent until the issue of the credit ordered by the taxing officer to be given to the Respondent in a series of twenty-four (24) files is sorted out between the Applicant and the Respondent
  3. 3.Interest on the decretal sum at Court rates calculated from the date of the Ruling until payment in full

Authorities

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Legislation

  • Advocates ActSection 51(2)
  • Civil Procedure RulesOrder 11(3)
Jurisdiction invoked
Section 51(2) of the Advocates Act and Order 11(3) of the Civil Procedure Rules

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, "Maina & Partners Advocates v Kwale International Sugar Co Ltd [2021] KEELRC 160 (KLR)", Case Analysis (2021). Misc. Application No 9 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/160/eng@2021-12-09

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