Case ID:168291

Sherman Nyongesa & Mtubia Advocates v

Micro-City Computers Limited [2020] eKLR

Case Metadata

Case Number:

Miscellaneous Civil Application 55 of 2018

Parties:

Sherman Nyongesa & Mtubia Advocates v Micro-City Computers Limited

Date Delivered:

26 Nov 2020

Case Class:

Civil

Court:

High Court at Mombasa

Case Action:

Ruling

Judge(s):

Dorah O. Chepkwony

Citation:

Sherman Nyongesa & Mtubia Advocates v

Micro-City Computers Limited [2020] eKLR

Court Division:

Civil

County:

Mombasa

Case Outcome:

Notice of Motion application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

MISC. CIVIL APPLICATION NO. 55 OF 2018

SHERMAN NYONGESA & MTUBIA ADVOCATES......APPLICANT

VERSUS

MICRO-CITY COMPUTERS LIMITED........................DEFENDANT

RULING

1. By a

Notice of Motion

application dated

1

st

February, 2019

brought under

Sections 1A

and

1B

of the

Civil Procedure Act, Cap 21, Section 51(2)

of the

Advocates Act, Cap 16 Laws of Kenya

and

Order 51 rule 1

of the

Civil Procedure Rules

, the Applicant prays for the following Orders:-

a. This Court be pleased to issue an Order of entry of Judgment in favour of the Applicant

M/S Sherman Nyongesa & Mutubia Company Advocates

against the Respondent,

Micro-City Computers Limited

in the sum of

Kshs.146,575/=

on the basis of the Certificate of Costs dated 16

th

August, 2018 together with interest at court’s rate from 18

th

July, 2018 until payment in full;

b. That this Honourable Court be pleased to adopt and endorse the Certificate of Costs dated 16

th

August, 2018 as the Decree of the Court for purposes of execution;

c. That the Costs of this application be provided for.

2. The

Motion

is premised on the ground that pursuant to a

Letter of Offer

by the Respondent’s Landlord, the Applicant prepares and lodged for registration a Lease document in favour of the Respondent sometimes in

November 2015

to which services and retainer are undisputed. That the Respondent reneged its obligation to pay the legal costs which prompted the filing of

Advocate-Client Bill of Costs

dated

15

th

February, 2018

. The said bill was taxed at

Kshs.146,575/=

and a

Certificate of Cost

issued to that effect on

16

th

August, 2018

.

3. The application is further supported by an

Affidavit

of

Winnie Owiti

, an Advocate of the High court of Kenya and sworn on

1

st

February 2019

, to which is annexed the

Certificate of Costs

marked

“NW-1”.

4. The application is opposed on the grounds set out in a

Replying Affidavit

sworn on

17

th

May, 2019

and a

Supplementary Affidavit

sworn on

6

th

November 2020

, both by the Respondent’s Managing Director,

Paul Okolo Ananga

. He deposed that the Respondent has never been served with any

Bill of Costs

nor any

Notice of Taxation

as required by law. Further that the Respondent only came to know of these proceedings after having been served with the present application hence the application cannot stand, having been filed unprocedurally and ought to be dismissed with costs.

5. In the

Supplementary Affidavit

,

Mr. Paul Okolo Ananga

deposed that the Respondent has made part payment of

Kshs.92,000/=

and is making arrangements to settle the outstanding balance thereof, a fact which has not been disclosed to court.

6. At the hearing of the application on

18

th

November, 2020,

M/S

Naliaka

, Counsel for the Applicant conceded that the Respondent had made part payment of

Kshs.92,000/=.

She submitted that the Applicant now seeks

Judgment

to be entered in its favour for the outstanding sum of

Kshs.54,575/=

pursuant to the

Certificate of Costs

dated

16

th

August, 2018

. The Learned Counsel further sought for costs and interest in the matter.

Analysis and Determination

7. I have considered the application and the grounds in support and opposition thereof as set in the parties’ respective Affidavits. I have also considered oral submissions by parties’ Counsels. I find the facts of this matter straight forward.

8. The Advocates filed their

Advocate-Client Bill of Costs

dated

15

th

February, 2018

for taxation and determination of their fees. The

Bill of Costs

was taxed on

18

th

July, 2018

by the Taxing Officer of this court and allowed in the sum of

Kshs.146,575/=.

A Certificate of Costs

was issued and is dated

16

th

August, 2018

. It is worth noting that the said Certificate has not been set aside thus the issue of the Advocate’s cost is conclusive and overrules the assertion by the Respondent that they were never served with the Bill of Costs.

9. Now, the Applicant’s Advocates are seeking to have the

Certificate of Costs

adopted

as Judgment

through the present application, save for the part payments that have been made by the Respondent. In the case of

Musyoka & Wambua Advocates…Vs…Rustam Hira Advocate (2006)eKLR

, it was held:-.

“Section 51 of the Act makes general provisions as to taxation, as the marginal note indicates. One of those provisions is that the court has discretion to enter Judgment on a Certificate of Taxation which has not been set aside or alter4ed, where there is no dispute as to retainer. This in my view is a mode of recovery of taxed costs provided by law, in addition to filing of suit….””

10. Further,

Paragraph 11

of the A

dvocates Remuneration Order

provides that:-:

“Where a party is aggrieved by the decision of a taxing officer, he is required to object in writing by requesting the taxing officer to give reasons for the items of taxation that he is objecting to and thereafter file reference to this court.”

11. Despite the allegations by the respondent that it was never served with the

Bill of Costs

or any

Notification of Taxation

, the Respondent has not filed a

Reference

to this court to challenge the decision of the Taxing Officer. The bill cannot therefore be challenged by way of a

Replying Affidavit

, and as it stands now, the

Certificate of Taxation

has not been set aside or altered. In the circumstances, I see no reason as to why this court should deny the Applicant’s Advocates the

Judgement

as sought.

12.The upshot of this is that the

Notice of Motion

application dated

1

st

February, 2019

succeeds and is hence allowed in the following terms:-

a. Judgment be and is hereby entered for the Applicant’s

advocates against the Respondent for the sum of

Kshs.54,575/=.

b. The Applicant will also have the costs of this application.

It is so ordered.

DATED, SIGNED

and

DELIVERED

at

MOMBASA

on this

26

th

day of

November, 2020.

D. O. CHEPKWONY

JUDGE

In view of the declaration of measures restricting court operations due to the

COVID-19

pandemic and in light of the directions issued by His Lordship the Chief Justice on

15

th

March 2020,

this Ruling has been delivered to the parties online with their consent. They have waived compliance with

Order 21 Rule 1

of the

Civil Procedure Rules

which requires that all Judgments and Rulings be pronounced in open Court.

D. O. CHEPKWONY

JUDGE