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ELRCPartially AllowedMisc. Application No 25 of 2018· [2021] KEELRC 191 (KLR)

Maina & Partners Advocates v Kwale International Sugar Co. Ltd [2021] KEELRC 191 (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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What this practically means

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Executive summary

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The Deputy Registrar taxed the Advocate/Client Bill of Costs dated 7th March 2018 at ksh.126,483.90 by a Ruling delivered on 2nd October 2018, in which the taxing officer also directed that the Respondent be given credit of ksh.1,750,000 against the total sum taxed on the bills, since the sum of ksh.1,725,000 paid as legal fees covered 24 matters in a series. A Certificate of Costs for the taxed sum was issued on 3rd September 2021 by Hon. A.S. Lesootia. The applicant, Kenneth Maina, filed a 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 the certificate into a judgment and decree with interest at 14% from 2nd October 2018 until payment in full. Although the applicant served the Respondent directly despite the Respondent having counsel on record, Mr. Mathenge, the Respondent's in-house counsel, confirmed service and stated that the Respondent was not opposing the application. No documents were filed in opposition. The Court found that the taxing officer's certificate had neither been altered nor set aside and was not shown to be disputed, and pursuant to Section 51(2) of the Advocates Act entered judgment for ksh.126,483.90. However, because the taxing officer had directed a credit to the Respondent across 24 files, the Court directed that execution of the decree be withheld until the applicant and respondent resolve that credit issue. Interest was awarded at Court rates from the date of the Ruling rather than at the 14% sought from the taxation date.

Key legal issues

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01

Adoption of a Certificate of Costs into a judgment under Section 51(2) of the Advocates Act

Holding

Judgment was entered for the certified sum of ksh.126,483.90 since the certificate had not been altered or set aside and was not shown to be disputed

Reasoning

Section 51(2) of the Advocates Act provides that a taxing officer's certificate is final as to the amount of costs covered unless set aside or altered by the Court. The Deputy Registrar's Ruling of 2nd October 2018 taxed the Advocate/Client Bill of Costs at ksh.126,483.90 and a Certificate of Costs was issued on 3rd September 2021. The certificate had not been altered, set aside or shown to be in dispute, so the Court entered judgment for the certified sum.

p. 2
02

Effect of the taxing officer's direction for a credit to the Respondent across 24 files

Holding

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

Reasoning

The taxing officer's Ruling indicated that the sum of ksh.1,725,000 paid as legal fees covered 24 matters in a series and that the Respondent should be given credit of ksh.1,750,000 against the total sum taxed on the bills. Because this credit had not been sorted out, the Court directed that execution of the decree be withheld until the applicant and respondent resolve the credit issue between themselves.

p. 2
03

Interest on the decretal sum

Holding

Interest was awarded at Court rates from the date of the Ruling rather than at 14% from the taxation date as sought

Reasoning

The applicant had sought interest at 14% from 2nd October 2018 until payment in full. The Court, in its discretion, awarded interest at Court rates to run from the date of the Ruling rather than from the date of taxation.

p. 2

Legal principles established

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  • A taxing officer's certificate that has not been set aside or altered by the Court is final as to the amount of costs, and judgment may be entered for the certified sum where the retainer is not disputed

Court orders

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  1. 1.Judgment entered for the applicant in the sum of ksh.126,483.90 as certified by the taxing officer
  2. 2.Decree not to be executed against the Respondent until the issue of the credit ordered by the taxing officer in a series of twenty four files is sorted out between the parties
  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 191 (KLR)", Case Analysis (2021). Misc. Application No 25 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/191/eng@2021-12-09

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