Muriu Mungai & Company Advocates v China Civil Engineering Construction Corporation (k) Limited

b. Costs be provided for. 4. The Advocate filed Grounds of Opposition dated 03/06/2024 stated that there was no reason given for the appeal and that it has not been shown that the appeal raised arguable points that demand the input of the Court of Appeal. The Advocates would be denied their fees which has been pending since year 2016. 5. The court directed that both applications be disposed off by way of written submissions. Both parties complied by filing their consolidated rival submissions which I have perused and considered. Analysis and Determination 6. I will start with the Advocate’s application dated 03/06/2024. 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? 7. 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. 10,968,750/=. 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. 8. 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." 9. The Certificate of Costs having been issued, this court is to enter judgment as prayed. 10. In regard to the application dated 15/05/2024 by the Client/ Respondent, it has been submitted by the Client/ Respondent that the principal sum of Kshs 12,771,260/= had been paid to the Advocate and what remained was the issue of interest. It was submitted that that should leave to appeal be denied, the Client would suffer substantial loss as the taxed amount was manifestly excessive, so as to amount to an error in principle. 11. The Client relied on the case of Rhoda Wairimu Karanja & another v Mary Wangui Karanja & another [2014] eKLR inter alia in support of its case to be granted leave to appeal, as the denial of leave would be an impediment to access to justice. 12. The Advocate filed the Grounds of Opposition dated 03/06/2024 stating that here was no reason given to have the court exercise its discretion to grant leave of appeal, and that the intended appeal did not raise any arguable points as the Court of Appeal will hardly be drawn into disputes on quantum. It was prayed that the application be dismissed with costs. 13. The client’s main issue is the award of interest having settled the Principle amount. This court exercised its discretion by awarding interest as per Rule 7 of the Advocates Remuneration Order. The Client submits that the section is not in mandatory terms, hence computation of interest is discretionally. Reliance was made inter alia the case of Otieno, Ragot & Company Advocates v Kenya Airports Authority [2021] eKLR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12114/eng@2025-04-03 2

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14. Based on the above, I find that the Client has established a prima facie case that the appeal has arguable points and shouldn’t be locked out from further access to justice. I therefore allow that application but on conditions to be given hereunder. 15. 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, each party to bear its own costs. 16. Following the foregone discourse, the upshot is that the following orders do hereby issue: a. That the dated 03/06/2024 has merits and is allowed as prayed. b. The Principle amount of Kshs. 12,771,260/= having been paid, interest at 14% p.a with effect from 20/05/2016 remains as due to the Advocate. c. In respect to the application dated 15/05/2024, leave is granted as prayed but on condition that the interest payable in (b) above be deposited in an escrow account in the names of both counsels on record within the next 30 days. d. In default of (3) above, the Advocate is at liberty to execute for the interest due. e. Each arty to bear its own costs. f. Costs awarded to the Applicant DATED, SIGNED AND DELIVERED AT MOMBASA, THIS 3RD DAY OF APRIL, 2025. ……………………………….. F. WANGARI JUDGE In the presence of: Advocate the Applicant Advocate for the Respondent M/s Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12114/eng@2025-04-03 3

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