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CASE_ AN. NDAMBIRI & CO. ADVOCATES V RICE GROWERS

REPUBLIC OF KENYA

 

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL DIVISION, MILIMANI

MISC. APPL. NO. 698 OF 2004

1. N. NDAMBIRI & CO. ADVOCATESPLAINTIFF

VERSUS

MWEA RICE GROWERS MULTI-

PURPOSE CO-OPERATIVE LTDDEFENDANTS

RULING

This is an application (notice of motion dated 23.2.2005) by an advocate for judgment for his taxed costs of Kshs.l,365,790/00 and for liberty to execute the re.^Q lllting decree against the client. It is brought under Section 51(2) of the Advocates Act, Cap. 16. That subsection donates to the court the power to make such order in relation to a certificate of the tax ing officer as it thinks fit, including, in the case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.

I have read the supporting affidavit sworn by the advocate, ALFRED NJERU

NDAMBIRI, on 23 ^rd February, 2005. To it is annexed a certificate of taxation dated January, 2005, duly signed by the taxing officer, for the sum of Kshs.

The client has opposed the application upon the grounds set out in the grounds o!’ opposition dated 1 5 ^th March, 2005. One of those grounds is that under the releva nt law the advocate must file a substantive suit where all issues in dispute can be canvassed. Another

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N:dambiri & (141. M wea Rice Grower ulti- P u rpose (

120051 e KLR ground is that the application is misconce:ved and based upon a wrong intenyetation of the ruling of the taxing officer dated I sty November, 2004. There is no replying affidavit filed

I have considered the submissions of the leamed counsels appearing. J also have the rulin ^o of the taxing officer before me. She stated as follows when considerilW the instruction fee:-

. . . …taking all the circumstances into consideration, 1 .find that the sum of sought is too exorbitant. The advocate has already received other

.fèes (Kshs.1.5 m).

“The sum ofKshs.9,000/00 will therefbre suffice on item I(a).

The costs as taxed therefore were what the taxing officer found to be due and payable to the advocate after taking into account what he had already been paid. Thë submission of the learned counsel for the client that the taxed amount had already been paid, nay, overpaid, is not borne out by the ruling of the taxing officer and is not correct. It was not urged before the taxing officer that the advocate had no instructions to act in the matter for the client and that therefore he was not entitled to any costs. None of the grounds of opposition claim so; indeed ground 3 is a confirmation that the advocate had instructions to act ir• the rnatter. As already noted, there is no replying affidavit deponing to a contrary position. Ivly understanding of the term ‘tretainer” as used in section 51 (2) aforesaid is instructions to act in the matter in which the costs have been taxed. I do not, with respect, subscribe to the view that “retainer” means an agreement in writing as to the fees to be paid. Needless to say, where there is such agreement taxation would hardly be necessary. In the circumstances I find that there IS no dispute as to the retainer.

The certificate of costs has not been altered or set aside. I find no reason to denv the advocate judgment as sought. I will therefore grant the application as prayed with costs to the advocate. Order accordingly.

DATED AND SIGNED AT NAIROBI THIS 9^Tll DAY OF JUNE. 2005.

H.P.G. WAWERU

JUDGE

DELIVERED THIS 10^TH DAY OF JUNE, 2005.

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Ahmednasir Ahdikadir           (.0                                   of Renv•a Limited

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