Case ID:179690

Cecil Miller t/a Miller and Co.Advocates v Parin Sharrif & 3 others [2021] eKLR

Case Metadata

Case Number:

Miscellaneous Cause 108 of 2012

Parties:

Cecil Miller t/a Miller & Co Advocates v Parin Sharrif, Nazlin Nizar Jetha, Yasmin Janmohammed & Anar Hanali

Date Delivered:

22 Jul 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Aggrey Otsyula Muchelule

Citation:

Cecil Miller t/a Miller and Co.Advocates v Parin Sharrif & 3 others [2021] eKLR

Court Division:

Family

County:

Nairobi

Case Outcome:

Cause ordered

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 NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

MISC. CAUSE NO. 108 OF 2012

IN THE MATTER OF THE ADVOCATES ACT

AND

IN THE MATTER OF TAXATION OF COSTS BETWEEN ADVOCATE AND CLIENT

BETWEEN

CECIL MILLER T/A MILLER & CO. ADVOCATES...............................................APPLICANT

AND

PARIN SHARRIF................................................................................................1

ST

RESPONDENT

NAZLIN NIZAR JETHA...................................................................................2

ND

RESPONDENT

YASMIN JANMOHAMMED.............................................................................3

RD

RESPONDENT

ANAR HANALI...................................................................................................4

TH

RESPONDENT

RULING

1. The Deputy Registrar taxed the applicant’s bills of costs on 25

th

September 2014 at Kshs.18,759,474/= and Kshs.18,760,692/=, respectively. On 27

th

June 2019 the certificates issued on 31

st

May 2015 for the amount were entered as judgment of court. They were with interest at 14% from 1

st

May 2015 to the date of full payment. The respondents filed an application dated 25

th

July 2019 to review and set aside the judgment and decree to allow the hearing of their application dated 17

th

May 2015 to enlarge time within which to file and serve a reference against the taxation by the Deputy Registrar. The applicant filed an application dated 27

th

September 2019 to have the respondents to provide security for the decretal amount which had grown to Kshs.58,533,158/69. The court allowed the respondents’ application on condition that they deposit into court Kshs.58,553,158/=. They deposited the amount.

2. The respondents’ application to enlarge time to file a reference was subsequently heard. On 1

st

July 2021 it was found not to be merited. It was dismissed with costs.

3. The present application dated 5

th

July 2021 was by the applicant. It was brought under

section 51

of the

Advocates Act, Rule 7

of the

Advocates Remuneration Order

and

Order 50 rule 1

of the

Civil Procedure Rules.

The application sought that the certified costs be adopted as judgment of the court, and that there be interest at 14% from 31

st

March 2015 to the date of full payment.

4. On 1

st

July 2021 the court gave leave to the respondents to appeal the decision refusing them enlargement of time. It also gave them leave to file an application for the stay of the court orders. When the matter came up on 15

th

July 2021 the respondents through their counsel informed the court that they had not yet filed the application for stay, although they had appealed the decision. The applicant had filed an application to enter judgment on the certificates of taxation. The application had been served but had not elicited any response from the respondents. I asked the parties to exchange written submissions and come today for this ruling. I notice that the respondents, without leave, have filed a response to the application. I will consider it all the same.

5. It is not denied the the certificates have not been satisfied for the longest period. The response to the application was that the applicant did not have instructions from the respondents to file the two succession causes. The response was therefore challenging the entire bills of costs on lack of instructions to the applicant. Quite unfortunately, this is a matter that was settled by the Deputy Registrar and the certificates have not been interfered with by this court.

6. The respondents took advantage in the replying affidavit and in their advocates written submission to attack the court by alleging that it had been unfair and biased against them. This is because the court had refused to enlarge time for them to file a reference. All that I wish to say is that they have appealed the decision of the court, and I wish them well.

7. The issue of retainer cannot be raised at this stage. There was taxation, and there are certified costs. A certificate of costs is final as to the amount of the costs payable. This is what

section 51

of the

Advocates Act

is all about.

8. Interest is awarded to compensate the claimant for having been kept of his money for a long period. Such interest is payable under

rule 7

of the

Advocates Remuneration Order

and

section 26

of the

Civil Procedure Act

. The costs have in this case not been paid since the certificates were issued on 31

st

March 2015.

9. I consequently enter judgment for the certificate of Kshs.18,759,474/= and the certificate of Kshs.18,760,692/=. Each will be with interest of 14% from 31

st

March 2015 to the date of full payment.

10. The applicant asked that the Kshs.58,553,158/= deposited by the respondents into court be released to settle the certified costs. This was opposed by the respondents. I have indicated that the certificates have been outstanding since 31

st

March 2015. Ideally, the applicant should go through the normal execution proceedings. But that will be unduly and unfairly prolonging the day of reckoning on the part of the respondents. Now that that application for stay was not filed, and no stay was obtained in the Court of Appeal, I direct that the amount be released to the applicants as part of his outstanding fees. I consider that when the applicant asked that the amount be deposited as security, the figure was not disputed.

11. Costs shall follow the event.

DATED and DELIVERED at NAIROBI this 22

ND

day of JULY, 2021.

A.O. MUCHELULE

JUDGE