Description

ORUKO AND ASSOCIATE V BROLLO KENYA LTD

THE

EAST AFRICA

LAW REPORTS

[2003] VOLUME 1

LexisNexis-

W Butterworths

East Africa Law Repons 12003] 1 EA 234 (CCK)

234                               East Africa Law Reports                 [2003] 1 EA

Oruko and Associates v Brollo Kenya Ltd

MILIMANI COMMERCIAL COURTS OF KENYA AT NAIROBI

NYAMU J

Date of Ruling: 14 MARCH 2003                                             Case Number: 1465/02 Sourced by: LAWAFRICA                                       SUMMARISED BY A MWANZLA [1] Advocate — Costs — Recovery — Certificate of taxation issued — Wltether certificate final as to entitle applicant to judgment — Whether an action for recovery necessary where there is no undisputed retainer— Sections 45(6), 48 and 51(2) — Advocates Act (Chapter 16). Editor’s Summary The Applicant, a firm of advocates, filed application in court seeking judgment for pursuant to section 51(2) of the Advocates Act (Chapter 16) and an order that they be at liberty to execute against the ReSpondent. The had an advocate client bill of costs taxed by the deputy reöstrar, and on the basis of certificate of taxaún brought the application. The contended that a certificate of the taxing master was final and they were thus entitled to judgment under section 51(2) of the Advocate Act. The Respondents opposed the application contending that recovery should have commenced by way of a suit pursuant to section 48 of the Advocates Act. Held — Under section 51(2) of the Advocates Act, a certificate of the taxing master is final, but only as to the amount of costs. An action for recovery ought to have been commenced as provided in section 48 of the Advocates Act since there was no undisputed retainer under section

b e

45(6) of the Act. Sharma v tDturu Highway Development Limited [2000) LLR 2404 (CAR) applied

Application dismissed.

Case referred to in ruling

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means explained; “F’ means followed; -“O” means overruled)

Shanna v Uhuru Highway Development Limited (2000) LLR 2404 (CAR) – AP                h

Rulin g

NYAMU J: The Applicant which is a firm of advocates has filed a notice of motion dated 20 December 2002 seeking two substanåve orders:

“(I) That judgment for costs be entered in the Applicant fivour pursuant to section 51 (2) of the Advocates Act (Chapter 16).

(2) That the Applicant be at. liberty to execute against the

The application is supported by an affidavit sworn on 20 December 2002 which attaches a certificate of taxation in the sum of KShs 46 975. This was a certificate of taxation issued after an advocate client bill of had been taxed by the master or deputy registrar.

East Africa Law Reports (20031 1 EA 234 (CCK)

Nyamu J

CCK  Oruko and Associates v Brollo Kenya Ltd                                                 235

The Applicant contends that they are to judgment under secú)n 51 (2) of the Advocates Act (Chapter 16) and need not bring action as contemplated under secún 48 of the Advocates Act. He has argued that the Certificate is final and there is nothing further to be done.

The Respondent has opposed the applicaóon on six main grounds namely: b

“(I) The application is ßtally defective In that it is based on a misapprehension of the law-.

• The orders sought cannot be granted without proof of a retainer.
• Recovery should have commenced by way of a suit pursuant to section 49 of the Advocates Act.

c              (4) The Applicant has ßiled to comply with the provisions of section 48(1)

• The order taxing the Applicant advocate/clients bill does not contain any reasons for the findings or award of costs.
• The application is frivolous”

When the application came up for hearing grounds 5 and 6 were not pursued and the Respondent did cite the civil appeal Sharma v U¶zuru Highway Development Limited [20001 LLR 2404 (CAR).

While I agree with the counsel for the Applicant that under secdon 51 (2), a certificate of the taxing master is final, it is only final as to the amount of the costs.

The wörång of the subsection is clear as to when judgment can be entered by the court. Judgment under this section can only be entered where there is proof of a retainer and the retainer is not disputed.

The subsecú)n does not in my opinion entitle an Applicant to a judBnent in any other situaóon. This is clear from the reading of secóon 45 •which deals with retarners. The section after dealing with where a retainer can, be challenged and the mode of challenge provides as under section 45(6).

“Subject to this section, the costs of an advocate in any case where an agreement has been made by virtue of this• section shall not be subject to taxation nor to section

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