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ELRCPartially AllowedMiscellaneous Application (notice of motion dated July 22, 2022; orders extended to Misc No E246, Misc No E247 and Misc No E218)· [2023] KEELRC 145 (KLR)

Union of Kenya Civil Servants v Kenya County Government Workers Union & another; Kenya County Government Workers Union (Client); Mbuvi t/a Katunga Mbuvi & Co Advocates (Advocate) (Miscellaneous Application E216 of 2021) [2023] KEELRC 145 (KLR)

High Court of Kenya
24 January 2023
JGJacob Gakeri
2,740 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court stopped an advocate from seizing a client's property because he never converted his taxed costs certificate into a court judgment first.

What this practically means

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Executive summary

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This was a notice of motion dated July 22, 2022 in which the client (applicant), through Roba Duba, sought stay of execution, setting aside and declaration of nullity in respect of a warrant of attachment dated July 20, 2022 and proclamation dated July 21, 2022 carried out on behalf of the advocate (respondent) following taxation of an advocate-client bill of costs at Kshs 6,938,875.56 on May 31, 2022. The applicant argued that a certificate of costs is not an executable instrument; that judgment had to be formally entered on the certificate before execution; and that a reference against the taxing decision filed on June 10, 2022 was pending. The advocate countered that conditional stay orders issued on June 27, 2022 entitled him to execute upon the applicant's default in depositing the decretal sum in a joint interest-earning account, that the application was an abuse of process and materially non-disclosive, and that the proclaimed goods were four-wheel-drive vehicles, not tools of trade. Justice Gakeri, relying on section 51 of the Advocates Act and the Rubo Kimngetich, Ndungu Githuka and Lubullellah authorities, held that the certificate of costs was not executable because it had never been adopted as a judgment of the court, and that the warrants and proclamation were premature, a reference being pending. The court allowed the motion, staying the attachment and proclamation pending determination of the reference, ordered each party to bear own costs, and extended the orders to Misc No E246, E247 and E218.

Key legal issues

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01

Executability of a certificate of costs

Holding

The certificate of costs was not executable as no judgment had been entered on it

Reasoning

Relying on Rubo Kimngetich Arap Cheruiyot, section 51 of the Advocates Act, Ndungu Githuka Advocates and Lubullellah & Associates, the court held that a certificate of costs is not an executable instrument; the advocate was obliged to have the certificate adopted as a judgment of the court before executing, and no such application was on record. The pending reference further made execution premature.

p. 6
02

Whether the warrants of attachment and proclamation were obtained prematurely

Holding

They were premature, having been obtained before adoption of the certificate as judgment and while a reference was pending

Reasoning

The warrants were issued in July 2022 before the certificate of costs of June 13, 2022 had been adopted as a judgment, and the applicant had a pending reference against the taxing decision. The advocate was aware of the reference yet proceeded with execution, which the court found unexplained and premature.

p. 6

Legal principles established

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  • A certificate of costs is not an executable legal instrument; warrants of attachment cannot issue on its basis without a decree first
  • A certificate of taxation must first be adopted as a judgment of the court before execution can proceed
  • Where a certificate of costs is not set aside or altered, the court need only enter judgment; no fresh suit is required

Court orders

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  1. 1.Stay of execution of the attachment dated July 20, 2022 and the proclamation dated July 21, 2022 pending determination of the reference dated June 10, 2022.
  2. 2.Each party to bear own costs.
  3. 3.These orders shall apply to Misc No E246, Misc No E247 and Misc No E218.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2); Article 159(2)(d); Article 48
  • Civil Procedure Act (Chapter 21)Sections 1A, 1B, 63(e)
  • Civil Procedure Rules, 2010Order 22 rule 22; Order 51 rule 1; Order 21 rule 1
  • Advocates ActSection 51(1) and 51(2)

Cases cited (9)

  • Rubo Kimngetich Arap Cheruiyot V Peter Kiprop Rotich
    Civil case 193 of 1993
  • Njuguna Matiri & Co. Advocates V National Bank of Kenya
    Misc 148 of 2014
  • Bahadurali Ebrahim Shamji V Al Noor Jamal & 2 others
    Civil Appeal No 210 of 1997
  • Kwacha Group Companies V Pindoria Holdings Ltd
    (2022) eKLR
  • Lavington Security Ltd
  • Hildegard Ndelut V Letkina Diaries Ltd & another
  • Elena Doudoladova Korir V Kenyatta University
    (2014) eKLR
  • Ndungu Githuka Advocates V Geoffrey Moriaso Ole Mailoy
    (2019) eKLR
  • Lubullellah & Associates Advocates V NK Brothers Ltd
    (2014) eKLR
Jurisdiction invoked
Article 159(2) of the Constitution of Kenya, 2010; sections 1A, 1B and 63(e) of the Civil Procedure Act; order 22 rule 22 and order 51 rule 1 of the Civil Procedure Rules, 2010; section 51(2) of the Advocates Act

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, "Union of Kenya Civil Servants v Kenya County Government Workers Union & another; Kenya County Government Workers Union (Client); Mbuvi t/a Katunga Mbuvi & Co Advocates (Advocate) (Miscellaneous Application E216 of 2021) [2023] KEELRC 145 (KLR)", Case Analysis (2023). Miscellaneous Application (notice of motion dated July 22, 2022; orders extended to Misc No E246, Misc No E247 and Misc No E218). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/145/eng@2023-01-24

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