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ELRCPartially AllowedELRC Miscellaneous Application No. 26 of 2021· [2022] KEELRC 610 (KLR)

Andrew and Steve Advocates v Maureen Onsongo [2022] KEELRC 610 (KLR)

Employment and Labour Relations Court
24 February 2022
JGJacob Gakeri
1,551 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 confirmed that once legal fees are taxed, advocates can get judgment directly without filing a fresh suit, plus 14% interest.

What this practically means

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Executive summary

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The Applicant/Advocate moved the Employment and Labour Relations Court by notice of motion dated 12th October 2021 under, inter alia, Section 51(2) of the Advocates Act, seeking judgment against the Respondent/Client for Kshs.425,762/- as per a Certificate of Taxation dated 10th September 2021, with interest at 14% per annum from the date of taxation, and that the certificate be adopted as a decree. The bill of costs, arising from the advocate's representation of the client in ELRC No. 189 of 2020 (Maureen Onsongo v EOH Limited), was inadvertently filed in the High Court Commercial Division and later transferred to ELRC as Miscellaneous Application No. 26 of 2021. The Taxing Master taxed the bill at Kshs.425,762/- by ruling delivered on 13th July 2021. No reference or objection was filed against that decision, and the certificate had not been set aside or altered. Gakeri J framed a single issue: whether the application was merited. Relying on Section 51(2) of the Advocates Act and following Kamau J in Lubulellah & Associates Advocates v N K Brothers Limited, the Court held that a certificate of taxation not set aside or altered is final as to the amount of costs, and where no reference is filed the court need only enter judgment; the applicant need not file a fresh suit. Rule 7 of the Advocates Remuneration Order permits interest at 14% per annum on taxed costs. The Court allowed prayers (1) and (2) of the motion, entering judgment for Kshs.425,762/- with interest from taxation until payment in full and adopting the certificate as a decree, but made no orders as to costs.

Key legal issues

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01

Whether judgment may be entered on a certificate of taxation absent a reference or objection

Holding

Yes - where the certificate of taxation has not been set aside or altered and no reference has been filed, the court may enter judgment for the sum certified as due

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 filed no reference or objection to the Taxing Master's ruling of 13th July 2021 taxing the bill at Kshs.425,762/-. Following Lubulellah & Associates v N K Brothers, no further action is required of the court save to enter judgment; the applicant need not file a fresh suit.

p. 3
02

Whether interest at 14% per annum is chargeable on the taxed costs

Holding

Yes, pursuant to Rule 7 of the Advocates Remuneration Order, from the date of taxation until payment in full

Reasoning

Rule 7 of the Advocates Remuneration Order empowers 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 payment or tender in full. The Court distinguished this advocate's interest from interest awarded by the Court and granted the prayer for interest at court rate from taxation until payment.

p. 3

Legal principles established

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  • Under Section 51(2) of the Advocates Act, a certificate of taxation not set aside or altered by the Court is final as to the amount of costs, and the Court may enter judgment for the sum certified due where the retainer is not disputed
  • Once a bill has been taxed and a certificate issued with no reference filed, the court need only enter judgment; the applicant need not file a fresh suit
  • Rule 7 of the Advocates Remuneration Order 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 is raised before payment or tender in full

Court orders

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  1. 1.Judgment entered against the Respondent/Client in the sum of Kshs.425,762/- in terms of the Certificate of Taxation dated 10th September 2021 with interest thereon at Court rate of 14% per annum from the date of Taxation until payment in full
  2. 2.The Certificate of Taxation dated 10th September 2021 adopted as a Decree of the Court with liberty to the Advocate/Applicant to execute
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 1A, 1B
  • Advocates ActSection 51(2)
  • Advocates Remuneration OrderRule 7
  • Civil Procedure RulesOrder 51 Rule 1; Order 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (2)

  • Lubulellah & Associates Advocates v N K Brothers Limited
    [2014] eKLR
  • E. W. Njeru & Co v Zakhem Construction (K) Limited
    Miscellaneous Civil Application 487 of 2012
Jurisdiction invoked
Section 51(2) of the Advocates Act, Cap 16 Laws of Kenya

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, "Andrew and Steve Advocates v Maureen Onsongo [2022] KEELRC 610 (KLR)", Case Analysis (2022). ELRC Miscellaneous Application No. 26 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/610/eng@2022-02-24

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