Mulwa & Mulwa Advocates v County Government of Machakos

comes to this Court asking that the certificate be converted into a judgment. 2. To that end, the Applicant has filed a Notice of Motion dated 14th January 2025, brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Section 51(1) of the Advocates Act, Order 51(1) of the Civil Procedure Rules, the Advocates Remuneration Order and all other enabling provisions of the law. The Applicant seeks the following orders: a. THAT judgment be and is hereby entered for the Applicant and Decree is hereby issued for the taxed costs of Kshs. 7,759,975/=. b. THAT the costs for this application be borne by the Respondent. 3. The Application is supported by the affidavit of Philip M. Mulwa and is premised on the grounds set out on its face. The Applicant’s case is that its Amended Bill of Costs dated 1st September 2020 was taxed at Kshs. 6,807,041/= on 3rd August 2022. Following a ruling of the Court delivered on ELCMISC. NO.02/2021-RULING 2

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17th May 2023, the Taxing Officer determined the VAT payable at Kshs. 952,933/=. The total amount due from the Respondent is therefore Kshs. 7,759,975/=. 4. The Applicant avers that despite demanding payment of the taxed amount from the Respondent, the Respondent has failed, refused and/or neglected to settle the same. The Applicant states that the Certificate of Taxation has neither been set aside, varied nor altered, and that no reference has been filed challenging the taxed amount. 5. When the Application came up for directions on 25 th June 2025, the Court directed that the Respondent be served and granted it time to file a Response to the Application. The parties were thereafter directed to file their respective submissions. 6. The Applicant filed its submissions dated 23 rd October 2025. The Respondent did not file a response or submissions in response to the Application. It subsequently appointed the ELCMISC. NO.02/2021-RULING 3

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firm of M/S Mutua Nyongesa Muthoka Advocates vide a Notice of Appointment dated 27th July 2026, but no response to the Application has been filed at the time of preparing this Ruling. The Application is therefore unopposed. Applicant’s Submissions 7. In his written submissions, the Applicant submitted that its Amended Bill of Costs dated 1 st September 2020 was taxed at Kshs. 6,807,041/= on 3rd August 2022. He further submitted that following a ruling of this Court delivered on 17th May 2023, the Taxing Officer determined the VAT payable at Kshs. 952,933/=, bringing the total sum due from the Respondent to Kshs. 7,759,975/=. He maintained that the Certificate of Taxation has neither been set aside, varied nor altered and that no reference has been filed challenging the taxed amount. 8. The Applicant relied on Section 51(2) of the Advocates Act, which he reproduced. He submitted that the circumstances in which the Court may decline to enter judgment on a ELCMISC. NO.02/2021-RULING 4

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Certificate of Taxation are limited to where the certificate has been set aside, varied or altered, or where the retainer is disputed. He contended that none of those circumstances obtains in the present case and that there is no evidence that the Respondent has settled the taxed amount. 9. In support of its submissions, the Applicant relied on Tom Ojienda & Associates v Nairobi City County [2025] KEHC 5043 (KLR) and on Nganga t/a Nganga & Co Advocates v Mburu & another [2025] KEHC 151 (KLR), where the courts entered judgment on unchallenged certificates of taxation. He also relied on Lubulellah & Associates Advocates v N.K. Brothers Limited (2014) eKLR, which was cited with approval in the Nganga case. He submitted that these authorities establish that once a certificate of costs has been issued and no reference has been filed, no other action is required of the court save to enter judgment. ELCMISC. NO.02/2021-RULING 5

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10. On that basis, the Applicant submitted that there was no impediment to the entry of judgment. It urged the Court to enter judgment in its favour for Kshs. 7,759,975/= together with the costs of the application. Issue for Determination 11. I have considered the Application, the supporting affidavit and the Applicant’s submissions. In my view, the sole for determination is whether the Court should enter judgment in favour of the Applicant on the Certificate of Taxation for the sum of Kshs. 7,759,975/=. 12. The Applicant's claim is founded on the Certificate of Taxation issued following the taxation of its Amended Bill of Costs dated 1st September 2020. The bill was taxed at Kshs. 6,807,041/= on 3rd August 2022. Following the ruling of the Court delivered on 17th May 2023, the Taxing Officer subsequently determined the VAT payable at Kshs. 952,933/=. The Applicant therefore claims the sum of Kshs. ELCMISC. NO.02/2021-RULING 6

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7,759,975/= as the total amount due and payable by the Respondent. 13. Section 51(2) of the Advocates Act provides: “The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.” 14. The provision establishes a summary procedure for the recovery of taxed costs. Where the certificate has not been set aside and the retainer is not disputed, the Court’s role is limited to entering judgment for the certified sum. The Court does not sit on appeal over the taxation unless a reference has been filed under Rule 11 of the Advocates Remuneration Order. ELCMISC. NO.02/2021-RULING 7

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15. In Lubulellah & Associates Advocates v N K Brothers Limited [2014] KEHC 8685 (KLR), the Court considering the effect of a the taxing master’s certificate following taxation, stated: “The law is very clear that once a taxing master has taxed the costs, issued a Certificate of Costs and there is no reference against his ruling or there has been a ruling and a determination made and not set aside and/or altered, no other action would be required from the court save to enter judgment. An Applicant is not required to file suit for the recovery of costs. The Certificate of Costs is final as to the amounts of the costs and the court would be quite in order to enter judgment in favour of the Applicant against the Respondent herein for the taxed sum indicated in the Certificate of Taxation.” ELCMISC. NO.02/2021-RULING 8

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16. The same reasoning was subsequently applied in Omwenga t/a Omwenga & Company Advocates v Kenya Orient Insurance Co. Ltd [2026] KEHC 13236 (KLR), the Court stated at paragraph 3: “A Certificate of Taxation has been issued and there is no suggestion that it has been set aside, varied or challenged. In those circumstances, Section 51(2) of the Advocates Act empowers the Court to enter judgment for the sum certified by the taxing officer. I find no legal impediment to granting the relief sought.” 17. In Mugo Githinji & Company Advocates v Ummoniner Sacco Society Limited [2026] KEHC 5610 (KLR), the Court stated at paragraph 14: “In the absence of a reference or any challenge to the Certificate of Taxation, this Court’s role is limited. The law is settled that where a certificate of costs has not been set aside or ELCMISC. NO.02/2021-RULING 9

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altered, the Court is entitled, enjoined, to enter judgment and in indeed the sum certified.” 18. In the present case, the Certificate of Taxation has not been set aside or altered. There is no reference challenging the taxation and there is no dispute as to the retainer. The Respondent has not placed before the Court any material challenging the amount certified or otherwise providing a basis upon which the Court may decline to give effect to the Certificate of Taxation. 19. The effect of section 51(2) of the Advocates Act is that the certificate is final as to the amount of costs covered thereby unless it is set aside or altered. The Court is therefore not called upon, at this stage, to reconsider the taxation or determine afresh the amount of costs payable. The amount payable is the amount certified by the Taxing Officer. ELCMISC. NO.02/2021-RULING 10

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20. In the circumstances, there is no impediment to the entry of judgment for the sum certified to be due. 21. In the premises, the Notice of Motion dated 14 th June 2025 is merited and is allowed in the following terms: a) Judgment is hereby entered in favour of the Advocate/Applicant against the Respondent for the sum of Kshs. 7,759,975/= (Kenya Shillings Seven Million Seven Hundred and Fifty-Nine Thousand Nine Hundred and Seventy-Five only) being the taxed costs as per the Certificate of Taxation. b) The costs of this Application are awarded to the Applicant. It is so ordered. Delivered and Dated at Machakos this 24th day of September, 2026. ELCMISC. NO.02/2021-RULING 11

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HON. J. N. KUYIONI JUDGE 24.09.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Catherine Court Assistant. Mr. Mutinda holding brief for Mr. Mulwa for Applicant. ELCMISC. NO.02/2021-RULING 12

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