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ELRCPartially AllowedNot stated in judgment· [2025] KEELRC 56 (KLR)

Otieno, Ragot & Co Advocates v Chemelil Sugar Co Ltd (Miscellaneous Case E019 of 2021) [2025] KEELRC 56 (KLR)

High Court of Kenya (sitting at Kisumu)
22 January 2025
1,956 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 ruled a pro forma invoice is not a proper bill of costs, so the advocate won the debt but interest only from taxation, not 2020.

What this practically means

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Executive summary

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This is a first-instance ruling on an Advocate's Notice of Motion dated 15th May 2024 expressed under Section 51(2) of the Advocates Act, seeking adoption of a Certificate of Costs dated 18th April 2023 as judgment and decree for Kshs.140,584.60 with interest at 14% per annum from 15th August 2020, plus costs. The advocate had acted for the client in Kisumu ELRC Appeal No. 11 of 2018 (Chemelil Sugar Co. Ltd v George Omondi Athembo) and presented a pro forma invoice dated 16th July 2020. The respondent opposed only the commencement date of interest, contending it should run from 18th April 2023 when taxation occurred. The court framed a single issue: whether interest should run from 15th August 2020 or from the date of the taxation ruling. Guided by Rule 7 of the Advocates Remuneration Order and a line of authorities including the Otieno Ragot decisions and Muri Mwaniki & Wamiti Advocates v John Ngigi Ng'ang'a, the court held that a pro forma invoice is neither a bill nor a fee note contemplated by Rule 7, and that the applicant failed to attach the forwarding letter or prove receipt of the fee note. The certificate of costs was adopted as judgment for the advocate, but interest was awarded only from the date of taxation, and each party was ordered to bear their own costs of the application. The outcome is partially allowed: the adoption of the certificate succeeded, the claim for interest from 2020 failed.

Key legal issues

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01

Whether interest under Rule 7 of the Advocates Remuneration Order runs from delivery of a pro forma invoice or from taxation

Holding

Interest runs from the date of taxation (18th April 2023) because the applicant failed to prove delivery of a compliant bill; a pro forma invoice is not a 'bill' under Rule 7

Reasoning

Rule 7 permits 14% interest from the expiration of one month from delivery of the bill to the client. The applicant relied on a pro forma invoice sent on 16th July 2020 but did not attach the forwarding letter or proof of receipt. Relying on Otieno Ragot and Muri Mwaniki authorities, the court held that a pro forma invoice is not a bill or fee note under Rule 7, so interest cannot run from the alleged delivery date and must run from taxation.

p. 4
02

Whether the unchallenged certificate of costs should be adopted as judgment

Holding

Yes; since the taxed sum was not challenged, varied or altered and no reference was pending, the certificate of costs dated 18th April 2023 was adopted as judgment for Kshs.140,584.60

Reasoning

Section 51(2) of the Advocates Act allows the certificate of costs to be adopted as a judgment and decree of the court where it has not been set aside or altered and no reference is pending. The respondent did not challenge the taxation, so judgment was entered for the applicant for the taxed amount, with the dispute confined to the commencement date of interest.

p. 4

Legal principles established

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  • A pro forma invoice is neither a Bill nor a fee note as contemplated by Rule 7 of the Advocates Remuneration Order and does not trigger the 14% interest.
  • An advocate must demonstrate delivery of a bill to the client in compliance with Rule 7 before interest can run from the date of delivery.

Court orders

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  1. 1.The certificate of costs dated 18th April, 2023 is adopted as a judgment of this court in favour of the Applicant/Advocates
  2. 2.Interest on the taxed Bill of Costs to run from 18th April 2023, the date of taxation, not from 15th August 2020
  3. 3.Each party to bear their own costs of the application dated 15th May 2024

Authorities

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Legislation

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

Cases cited (11)

  • Otieno, Ragot & Co. Advocates v Kenindia Assurance Co. Ltd
    [2016] eKLR
  • Otieno, Ragot & Co. Advocates v Kenindia Assurance Co. Ltd
    [2023] KECA KLR
  • Otieno Ragot & Co. Advocates v Kenindia Assurance Co. Ltd
    [2021] eKLR
  • Otieno Ragot & Co. Advocates v Kenindia Assurance Co. Ltd
    [2020] eKLR
  • Otieno Ragot & Co. Advocates v Winam Chemists Ltd, Civil Case No. 54 of 2019
  • Otieno, Ragot & Co. Advocates v National Bank of Kenya Ltd
    [2016] eKLR
  • Wainaina Ireri & Co. Advocates v Kenya Bus Services Ltd
    [2005] eKLR
  • A. M. Kimani & Co. Advocates v Kenindia Assurance Co. Ltd
    [2006] eKLR
  • Muri Mwaniki & Mamiti Advocates v Berbern Company Ltd.
    [2017] eKLR
  • Muri Mwaniki & Wamiti Advocates v John Ngigi Ng'ang'a & Another
    [2014] eKLR
  • D. Njogu & Co. Advocates v Kenya National Capital Corporation
    [2006] 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, "Otieno, Ragot & Co Advocates v Chemelil Sugar Co Ltd (Miscellaneous Case E019 of 2021) [2025] KEELRC 56 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/56/eng@2025-01-22

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