Miyare t/a Miyare & Company Advocates v Kikambala Housing Estate Limited & another (Miscellaneous Application 76 of 2022) [2025] KEHC 12107 (KLR) (29 May 2025) (Ruling)
Neutral citation:
[2025] KEHC 12107 (KLR)
Republic of Kenya
Miscellaneous Application 76 of 2022
F Wangari, J
May 29, 2025
Between
George Miyare t/a Miyare & Company Advocates
Advocate
and
Kikambala Housing Estate Limited
1st Client
Osman Erdinc Elsek
2nd Client
Ruling
1.By a Notice of Motion Application dated 28/08/2024 brought under the provisions of Sections 51 (1) and (2) of the Advocates Act, Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law, the Advocate/Applicant sought for the following orders: -i.That the Honourable Court be pleased to enter judgement for the Advocate/Applicant against the Clients/Respondents in the sum of Kshs. 441,145/= as appears in the Certificate of Taxation dated 17.07.2024 together with interest at 14% per annum from 04.05.2022 until payment in full;ii.Costs.
2.The grounds in support of the application are that the on 10.06.2024, the Learned Taxing Officer (Hon. Noelyne Akee Reuben (DR)) delivered a ruling on the Applicant’s/Advocate’s – Client Bill of Costs dated 04.04.2022 and taxed the same at Kshs. 441,145/=. Consequently, a Certificate of Taxation dated 17.07.2024 was issued.
3.The decision of the Learned Taxing Officer and the Certificate of Taxation have not been set aside and or varied by the Honourable Court. The Clients/Respondents have failed and/or refused to settle the taxed costs and the same remain unpaid to date. Accordingly, it is the Applicant’s position that it is fair and just to have the application allowed as prayed.
4.The application is supported by an affidavit of even date sworn by Diana Achieng Advocate who is practicing as such in the Applicant’s Firm. The basis of taxation is Mombasa Magistrate’s Court Civil Case No. 2109 of 2016; Elkanah Gekonge Mang’era v Kikambala Housing Estate Limited & Another. Other than the annexures, the affidavit restates more or less the grounds in support of the application and I see no need to rehash the same.
5.The application is opposed. Through grounds of opposition dated 21.10.2024, the Respondents other than the 3rd aver that the application is bad in law and an abuse of process of law. That the application is brought on a provision of the law which is not applicable. That when the court delivered its ruling on 10.6.2024, it became functus officio on the matter.
6.That the court file before the court is for taxation of Advocate – Client Bill of Costs and Judgement can be entered on this file after taxation. That there is no provision provided for the prayers sought under the Advocate Remuneration Rules. Lastly that the ruling delivered on the Bill of Costs of the Advocate/Applicant on 10th June, 2024 was Kshs. 381,115/= by the Taxing Master and the Certificate of Costs dated 17th July, 2024 is Kshs. 441,145/= hence visible discrepancy.
7.Directions were taken to have the application canvassed by way of written submissions. Both parties duly complied with the directions. The Applicant’s submissions are dated 5th November, 2024. The Applicant has cited various authorities among them Musyoka Wambua Advocates v Rustam Hira Advocate [2006] eKLR.
8.On the part of the Respondents, their submissions are dated 8th November, 2024. They have equally cited various authorities among them Ahmednasir Abdikadir & Company Advocates v National Bank of Kenya Limited [2006] eKLR. The Applicant filed further submissions dated 17th December, 2024 which in essence sought to respond to the issues raised by the Respondents in their submissions. Other than the other authorities earlier cited, the case of Otieno Amisi & Co. Advocates v Africa Merchant Insurance Company Ltd [2018] KEHC 689 (KLR).
9.I am grateful to the parties for complying with the court’s directions. I equally commend the industry they have exhibited by filing well researched submissions and citing various authorities which are a useful guide in determining the matter either way. I have given due consideration to both sets of submissions.
Analysis and Determination
10.Having carefully considered the application, the grounds of opposition, submissions for and against, the authorities cited as well as the law, I discern the following being the issues for determination: -a.Whether judgement ought to be entered as prayed; andb.What is the order as to costs?
11.The legal basis of the application is section 51 (1) and (2) of the Advocates Act and Order 7 of the Advocates (Remuneration) Order, 1962. Section 51 (1) and (2) of the Advocates Act provides as follows: -
12.On the other hand, Rule 7 of the Advocates (Remuneration) Order provides thus: -
13.Having carefully considered the respective parties’ written submissions, it was clear that the Certificate of Costs that was issued by the Taxing Officer had not been set aside and/or altered.
14.In Republic v City Council of Nairobi; Ivyland Park Ltd (Interested Party) Ex parte Inderpal Singh & 2 others Suing as Officials of Convent Drive South Residents’ Association [2021] eKLR, the court held as follows: -
15.In addition, Rule 7 of the Advocates Remuneration Order provides for interest on the said costs at 14 % until payment in full. However, it is important to point out that 14% runs from the time the bill is delivered. Not from the time the certificate of taxation is issued. It is not in dispute that the Bill of Costs dated 4.4.2022 was delivered to the Respondents on the same day. In terms of Rule 7, it started attracting 14% interest from 4.5.2022 being thirty (30) days after the delivery of the Bill.
16.The Respondents though signing documents in person have always been represented by Counsel and therefore, I have no hesitation to hold that the amount attracted 14% interest as from 4.5.2022. Lastly, from the Respondents’ submissions, one of the objections raised is that there was no compliance with section 48 of the Advocates Act.
17.In the case of M G Sharma v Uhuru Highway Development Limited [2001] eKLR, the Court of Appeal clearly explained the applicability of section 48 of the Act in matters recovery of costs.
18.Once an advocate approaches court by way of a miscellaneous application for purposes of recovering his or her costs, the rigors of section 48 of the Advocates Act are avoided and I thus find the Respondents’ arguments on this limb not merited.
19.I think I have said enough to show that the application dated 28th August, 2024 has merits and the same is for allowing.
20.On costs, it is settled that the same follows the event. However, the court retains discretion whether to grant them or not. Furthermore, this discretion must be exercised judiciously and courts should not deprive a plaintiff/defendant of his or her costs unless it can be shown that they acted unreasonably. The Halsbury’s Laws of England, 4th Edition (Re-issue), [2010], Vol.10. para 16, notes as follows: -
21.The Applicant has been made to defend and prosecute one application after another and I see no reason to deny him costs. In the circumstances, I award costs to the Applicant.
22.Having found the application successful, the following orders flow therefrom:a.The Notice of Motion dated 28th August, 2024 has merit and the same is allowed in the following terms:i.Judgement in entered in favour of the Advocate/Applicant against the Clients/Respondents in the sum of Kshs. 441,145/= as appears in the Certificate of Taxation dated 17.7.2024ii.The sum in (i) above shall attract interest at the rate of 14% per annum from 4.5.2022 until payment in fullb.Costs to the ApplicantOrders accordingly.
DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 29TH DAY OF MAY, 2025.…………………F. WANGARIJUDGEIn the presence of:Mr. Miyare Advocate for the ApplicantMr. Aziz p.i.p for the RespondentsMs. Norah, Court Assistant