Ondaba & Partners Advocates v Sea Turtle Limited & 1 other

Analysis and Determination 4. Having considered the application, the supporting affidavit, the response and the submissions thereto, the issues for determination are; a. Whether the application is meritorious; b. What is the order as to costs? 5. On the first issue, taxation was done in this miscellaneous file. No reference was filed against the Certificate of Costs as it was as a result of a ruling by this court where costs were taxed at Kshs. 403,884.67. What is required of the court is to enter judgment, the Certificate of Costs having not been set aside. I find that the Applicant rightfully sought for entry of judgment in this file. 6. The application is brought under Section 51 (2) of the Advocates Act provides as follows: ‘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’. 7. The Certificate of Taxation has not been set aside. However, the Respondent submits that the Applicant ought to have filed a suit for recovery of costs and not by way of filing this application. This court has had different interpretations of section 48, 49 and 51 of the Advocates Act. 8. One school of thought holds that after a Certificate of Taxation is issued, the advocate should demand the taxed amount from the client, and if the client fails to pay, the advocated should proceed pursuant to section 49 of the Advocates Act. This is the school of thought applied I the case of John Mark Nyaga Kamunyori t/a Kamunyori & Co. Advocates v Development Bank of Kenya Ltd [2007] KEHC 1900 (KLR). 9. However, the latest jurisprudence in the matter is as submitted by the Applicant, and I do ascribe to the said school of thought. In the case of Lubulellah & Associates Advocates v Vinayak Builders Limited, which was relied on by the Applicant, reliance was made on the case of Lesionko Njoroge & Gathogo Advocates v Invesco Assurance Co. Ltd [2021] eKLR where it was held as follows; “ The procedure provided in section 51(2) of the Advocates Act aids expeditious disposal of cases relating to recovery of advocate-client costs as long as: (1) the costs have been taxed by and certified under the hand of the taxing master by a Certificate of Costs; (2) the Certificate of Costs has not been set aside or stayed or appealed against on a reference filed upon it; and (3) there is no dispute on retainer. In such case, judgment is ordinarily entered in the sum in the Certificate of Costs upon application by the advocate. The application may be commenced by way of a Notice of Motion which in law is potent tool for originating a suit.” 10. The Certificate of Costs having been issued, this court is to enter judgment as prayed. 11. On the issue of costs, it is settled that the same follows the event. That is the import of section 27 of the Civil Procedure Act. The court reserves its discretion on whether to award costs to either party. This was well enunciated by the Supreme Court in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others [2013] eKLR. In the present circumstances, costs are awarded to the Applicant. 12. Following the foregone discourse, the upshot is that the following orders do hereby issue: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12109/eng@2025-03-27 2

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a. That the Notice of Motion dated 22/04/2024 has merits and is allowed as prayed. b. Costs awarded to the Applicant DATED, SIGNED AND DELIVERED AT MOMBASA, THIS 27TH DAY OF MARCH, 2025. ……………………………….. F. WANGARI JUDGE In the presence of: N/A by the Applicant Muriithi Advocate for the Respondent M/S Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12109/eng@2025-03-27 3

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