Commercial and Tax Division v Gibb (africa) Limited

HCCOMM MISC NO. E504 OF 2024 P. MULWA, J. and allowed in the sum of Kshs. 13,683,070/= and a certificate of costs issued for the same amount. 3. The application was supported by the annexed affidavit of Charles Kanjama, SC sworn on 5th June 2025. He avers that the Applicant was retained by the Respondent to offer subconsultancy services where the Applicant performed its duties as per the instructions and the Respondent failed to settle the Applicant’s fees thus necessitating the filing of the Advocate-Client Bill of Costs dated 18 th June 2024 which was taxed on 8th April 2025 and a certificate of taxation issued dated 21st May 2025. The ruling of the taxing master has not been challenged. 4. The Respondent opposes the application through the Replying Affidavit of Wambua E. Kimanzi sworn on 5 th March 2026. She avers that the Applicant and the Respondent entered into a sub- consultancy agreement dated 9 th April 2018 for the provision of legal services at an agreed legal fee of Kshs. 6 Million, where the Respondent paid a sum of Kshs. 4,872,000/=, leaving a balance of Kshs. 2,088,000/= The Respondent fell into financial constraints in 2020 and was unable to meet its financial obligations within the agreed timelines. 5. That the Applicant issued demand letters dated 17 th December 2021, 23rd October 2023 and 13th March 2024 demanding the balance of Kshs. 2,088,000/= plus interest. The Respondent has objected to the Ruling of the Taxing Master vide the notice of objection dated 21 st April 2025. That the entry of judgment against the Respondent will Page 2 of 8

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HCCOMM MISC NO. E504 OF 2024 jeopardise its P. MULWA, J. ongoing restructuring efforts as the Respondent is under financial constraints. 6. The application was argued orally. Mr. Khasogo, counsel for the Applicant, urged the court to strike out the Replying Affidavit as it consists of contested facts and was deposed by the advocate in the conduct of the matter. There is no reference before the court. A partially signed agreement was filed before the taxing master, where the Taxing Officer considered the agreement and gave her findings. The Respondent has now annexed the agreement, which has been signed by the parties. 7. Mr. Kimanzi insist there is a consultancy agreement that capped the legal fees to Kshs. 6 Million, which the Applicant failed to challenge the validity, and urged the court to dismiss the application for entry of judgment. Analysis and determination 8. I have considered the Notice of Motion, the affidavits filed by the parties, and the oral submissions by counsel. In my view, the issues falling for determination are: i. Whether judgment should be entered in terms of the Certificate of Taxation dated 21st May 2025. ii. Whether the Applicant is entitled to interest at the rate of 14% per annum from March 2018. Whether judgment should be entered on the Certificate of Taxation 9. It is trite that once a Taxing Master has taxed the Bill of Costs, issued a Certificate of Costs and there is no reference Page 3 of 8

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HCCOMM MISC NO. E504 OF 2024 P. MULWA, J. filed against his/her ruling, no other action would be required from the court save to enter judgment. The Certificate of Costs is final as to the amount of the costs and the court would be quite in order to enter judgment in favour of the applicant against the respondent. (See HC Misc 486 of 2012 E.W. Njeru & Co Advocates v Zakhem Construction (K) Limited (2013) KECH3376(KLR). 10. 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 recovered thereby; and the court may make such order in relation thereto as it thinks fit, including where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.” 11. In the present case, it is common ground that the Applicant's Advocate–Client Bill of Costs dated 18th June 2024 was taxed in the sum of Kshs. 13,683,070/=, and a Certificate of Taxation was issued on 21st May 2025.The Respondent’s main objection is rooted in the existence of a sub-consultancy agreement which, it claims, capped the fees at Kshs. 6 Million and left a balance of Kshs. 2,088,000/=. The Respondent contends that it filed a Notice of Objection dated 21st April 2025 against the taxing officer’s ruling. Page 4 of 8

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HCCOMM MISC NO. E504 OF 2024 12. P. MULWA, J. However, it is common ground that no reference has been filed to date. Under Paragraph 11(1) and (2) of the Advocates Remuneration Order, a party objecting to a decision of a taxing officer must, within fourteen days, give notice in writing of the items objected to, and subsequently file a reference to a judge. The filing of a notice of objection without prosecuting a reference does not operate to vitiate or stay the Certificate of Taxation. 13. The Respondent’s attempt to impugn the Certificate of Taxation by annexing a fully signed agreement at this stage is procedurally impermissible. The taxing master, in her ruling delivered on 8th April 2025, considered the partially signed agreement and made a determination on the fees payable. If the Respondent was aggrieved by that finding, the proper forum was a reference before this court under Paragraph 11 of the Remuneration Order. This court, sitting as an entry-of-judgment court under Section 51(2), cannot convert itself into an appellate court over the taxing master’s decision. 14. In Lubulellah & Associates Advocates vs N. K. Brothers Limited [2014] eKLR the court observed that; “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 Page 5 of 8

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HCCOMM MISC NO. E504 OF 2024 P. MULWA, J. enter judgment. An applicant is not required to file suit for the recovery of costs.” 15. During submissions, counsel for the Applicant urged the Court to strike out the Replying Affidavit on the ground that it had been sworn by counsel on contested matters. While it is true that advocates ought not to depone to contentious evidentiary matters in proceedings in which they appear. I do not find it necessary to determine that objection. Even after considering the Replying Affidavit in its entirety, it raises no defence capable of defeating an application under Section 51(2) of the Advocates Act. 16. I am therefore satisfied that the statutory conditions for entry of judgment have been met. Whether the Applicant is entitled to interest at 14% from March 2018 17. The Applicant further seeks interest at the rate of 14% per annum from March 2018, being the date of instruction. 18. This court also has jurisdiction under Section 51(2) of the Advocates Act to make any order that it deems fit. Entry of judgment and award of interest at court rates is within the ambit of what this court can do. 19. Paragraph 7 of the Advocates Remuneration Order provides as follows: “An advocate may charge interest at 14% 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, providing such claim for interest is raised before Page 6 of 8

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HCCOMM MISC NO. E504 OF 2024 P. MULWA, J. the amount of the bill has been paid or tendered in full.” 20. The effect of Paragraph 7 is that interest does not accrue from the date of instructions. Rather, it becomes payable only after the expiry of 30 days from the date the advocate delivers the fee note or bill to the client, provided that a claim for interest has been made before payment. 21. No agreement on interest from the date of instruction has been proved before me. The Applicant’s Bill of Costs was dated 18th June 2024 and served upon the Respondent, who participated in the taxation. I find no good cause to vary the commencement date from that provided by Rule 7. Accordingly, interest shall accrue at 14% per annum from 19th July 2024, being thirty-one days after the delivery of the Bill, until payment in full. 22. In the result, the Notice of Motion dated 5th June 2025 is meritorious. I make the following orders: i. Judgment is hereby entered in favour of the Applicant and against the Respondent in the sum of Kshs. 13,683,070.00 as certified in the Certificate of Taxation dated 21st May 2025. ii. The said sum shall attract interest at the rate of 14% per annum from 19th July 2024 until payment in full. iii. The costs of this application are awarded to the Applicant. RULING delivered virtually, dated and signed at NAIROBI This 31st day of July 2026. Page 7 of 8

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HCCOMM MISC NO. E504 OF 2024 P. MULWA, J. PETER M. MULWA JUDGE In the presence of: Mr. Khasogo for Applicant Mr. Kimanzi for Respondent Court Assistant: Lispa Page 8 of 8

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