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Kisilah Daniel Gor and Daniel Ndeke Gatumu p/a Sheth & Wathigo Advocates v JGM (Miscellaneous Civil Case E024 of 2021) [2023] KEHC 1430 (KLR) (2 March 2023) (Judgment)
Neutral citation:
[2023] KEHC 1430 (KLR)
Republic of Kenya
Miscellaneous Civil Case E024 of 2021
GL Nzioka, J
March 2, 2023
Between
Kisilah Daniel Gor and Daniel Ndeke Gatumu p/a Sheth & Wathigo Advocates
Applicant
and
JGM
Respondent
Judgment
1.The notice of motion application dated 14th March 2022 refers. The applicant is seeking for orders that the judgment be entered in it’s favour as against the Respondent for the sum of Kshs 130,993.00 being the certified costs due to the Applicant against the Respondent and be adopted and recognized as the judgment of this court. Further the interest occurred on costs and disbursements due to the applicant be awarded from the date of filing of the bill of costs on 25th May 2021 till payment in full and the costs of this application be provided for.
2.The application is supported by the grounds on the face of it, to the effect that despite the issuance of the certificate of taxation and a demand for the payment the sums therein, the Respondent has neglected and or refused to pay. That there is no dispute that, the Respondent retained the Applicant in an Advocate-client relationship.
3.The application is further supported by an Affidavit sworn by Kisilah Daniel Gor, an Advocate of the High Court practicing as such in the Applicant’s form. He deposes that, the Applicant acted for the Respondent in Naivasha CMCC Divorce Cause No. XX of 2015, JGM v JNG. That on 1/10/2020, Decree Nisi was issued. On 11/10/2020, the Applicant served the Respondent with a fee note. On 25/5/2021 the Advocate/Applicant filed Advocate client bill of costs for taxation. On 14/6/2021, the Respondent was served with the Bill of costs.
4.On 27/1/2022, the Bill of costs was taxed at Kshs 130,993 and a certificate issued on 10/2/2022 that the Respondent was notified of the taxed amount, with a discount of Kshs 40,000 but still failed to make the necessary payment. Neither has he appealed against it nor the certificate of taxation set aside. That in the circumstances, it is only fair that, the application be allowed as prayed.
5.The application herein was served upon the Respondent but he did not appear to oppose it or otherwise. I have considered the application herein and I find that, it governed by the provisions of section 51(2) of the Advocates Act. The subject provisions empowers the court to enter judgment on a sum certified in the certificate of taxation, so long as the retainer is not disputed.
6.There is no evidence herein that, the retainer is disputed. I have taken note of the Bill of costs dated 25th May 2021 taxed on and certified vide a certificate of costs dated 10th February 2022. I also note that, the application herein is not opposed. In that case I enter judgment in favour of the applicant in the sum certified in the certificate of costs, being Kshs 130,993.00; only. The Applicant shall also have the costs of this application. For clarity prayer (1) and (3) of the Application are allowed accordingly. Those then are the orders of the court.
DATED, DELIVERED AND SIGNED THIS 2ND DAY OF MARCH 2023.GRACE L. NZIOKAJUDGEIn the presence of:-Ms Oteyo for the ApplicantRespondent physically present in courtMs Ogutu-Court Assistant
