Waiguru Njuguna & Co. Advocates v Uap Provincial Insurance Co. Ltd & 1 other

The Respondent stated that the application was/is fatally defective and devoid of merit because under Advocates Act legal justification must be given for the arrival of interest and operation date. Relying on the letter marked TWN4 dated 3rd January 2018 means that interest ought to take effect from the date of entry of judgment. In reply, the Applicant relied on Rule 7 of Advocates Remuneration Order on the application of interest. DETERMINATION The Court record confirms that the Bill of Costs was scheduled for taxation on 7 th June 2018. The Respondent was served but the Affidavit of Service was not filed. The matter was adjourned to 27 th June 2018 and Respondent was to be served. There was affidavit of service confirming service to Respondent on 11 th June 2018. Ruling was reserved for 24 th July 2018 and the same was delivered on the said date. Thereafter the present application was filed and heard interpartes. Counsel for Respondent stated that reasons ought to have been provided for the taxation especially with regard to interest. Section 11(1) & (2) of the Advocates Act provides; a) Should any party object to the decision of the Taxing Officer, he may within 14 days after the decision give notice in writing to the taxing officer of the items of the taxation he objects; b) The Taxing Master shall forthwith record and forward to the Objector the reasons for his decision on those terms and the Objector may within 14 days from receipt of reasons apply to a judge in Chamber summons, which shall be served on all parties concerning setting out the grounds for objection. The Respondent if aggrieved by the process and outcome of the Bill of Costs Taxation did not take up the prescribed avenue for redress as outlined above. Section 14 of Advocates Remuneration Order grants the Taxation Officer mandate to conduct exparte taxation proceedings in default who after due notice without reasonable excuse fails to appear on the date and time for taxation. The taxation proceedings proceeded exparte after the Taxing Master satisfied herself that the Respondent was duly served on 11 th June 2018. Counsel for the Applicant in his oral submissions relied on Section 51 (2) of the Advocates Act to seek entry of judgment for taxed costs. Section 51 (2) provides: “The certificate of 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.” On the question of interest, the Ruling by Taxing Master of 24 th July 2018 and Certificate of Taxation made no reference to interest. However, the Applicant by application filed on 10 th January 2019 sought inclusion of interest at 14% per annum on the sum from 23 rd April 2018 until payment in full. Counsel for the Applicant relied on Rule 7 of the Advocates Remuneration Order to seek for interest at 14% per annum on his disbursements and costs. Rule 7 provides as follows: “Interest may be charged An advocate may charge interest at 14 per cent per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from the delivery of his bill to the client, provided that such claim for interest is raised before the amount of the bill shall have been paid for or tendered in full.” The retainer was disputed and taxation proceedings and outcome are also not contested. The Applicant sought the certificate of taxation adopted as judgment of this Court and included interest as prescribed by Rule 7. The Applicant seeking interest at the appropriate time before the bill has been tendered in full, and there being no application by the Respondent to set aside the taxed costs, and on reliance on the aforesaid provisions, there is no reason why judgment should not be entered as prayed by the Applicant. DISPOSITION 1. Judgment is hereby entered in favour of Waiguru Njuguna & Co. Advocates as against UAP Provincial Insurance Company Limited for Kshs. 89,003/=; 2. The Applicant is awarded interest at the rate of 14% per annum on the said sum of Kshs. 89,003/= from the 23 rd April 2018 until payment in full; and 3. The Applicant is awarded costs of the Notice of Motion dated 10th January 2019. DELIVERED SIGNED & DATED IN OPEN COURT ON 27TH MAY 2019.

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M.W. MUIGAI JUDGE IN THE PRESENCE OF; NO APPEARANCE FOR APPLICANT MR. AWOUR HOLDING BRIEF MRS GITHAE FOR RESPONDENT COURT ASSISTANT -JASMINE

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