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Kinyanjui Njuguna & Co Advocates v Invesco Assurance Company Limited (Miscellaneous Civil Application 121, 192, 193, 223, 224, 225, 226 & 227 of 2019 (Consolidated)) [2023] KEHC 19599 (KLR) (30 June 2023) (Ruling)
Neutral citation:
[2023] KEHC 19599 (KLR)
Republic of Kenya
Miscellaneous Civil Application 121, 192, 193, 223, 224, 225, 226 & 227 of 2019 (Consolidated)
GL Nzioka, J
June 30, 2023
Between
Kinyanjui Njuguna & Co Advocates
Applicant
and
Invesco Assurance Company Limited
Respondent
Ruling
1.By a notice of motion application dated 28th February 2022, brought under the provisions of; order 51 rule 1 of the Civil Procedure Rules, section 48 and 51(2) of the Advocates Act, and Rule 7 of the Advocates (Remuneration) Order, the applicant is seeking for the following orders: -
2.The application is supported by the grounds on the face of it and an affidavit sworn by Kinyanjui Theuri, an advocate of the High Court of Kenya and partner in the applicant’s firm. He deposes that, the subject matters relate to the same parties and involve similar claims for legal fees and therefore consolidation is necessary for expeditious disposal.
3.That, the applicant’s bill of costs in the matters have been taxed and certificates of taxation drawn, signed and issued. Further, although the respondent does not dispute the fact that the fees claimed is due and payable, has continuously failed to pay the same despite demand and notice.
4.That, an advocate is legally entitled to fees for earned in the course of his services in line with the advocates remuneration order. Thus the instant application is made in the sole interest and due realization of the legal fees earned.
5.Furthermore, that interest is payable at fourteen percent (14%) per annum from the date of demand and service of notice to settle the legal fees. That, if the court fails to grant the orders sought, the applicant will be prejudiced as the respondent is facing liquidity crisis.
6.Upon considering the application, the court ordered that, the same be served for directions inter parties on 9th March 2023. On the material date, Mr. Karanja appeared in court on behalf of the respondent and requested for time to peruse the court file. The Court granted the request and ordered the respondent to file its response within fourteen (14) days.
7.However, when the matter came up for hearing on 14th June 2023, the respondent was not in court, despite having been served as evidenced by an affidavit of service dated; 25th May 2023 served by Brian Kiptoo, the process server. In that case the application was heard unopposed.
8.Be that as it were, I have considered the application in the light of the materials availed in support thereof. Indeed, the applicable is found under section 51(2) of the Advocates Act, (Cap 16) Laws of Kenya, which states that: -
9.In that regard I note that the applicant has produced evidence of the certificates of taxation issued in the respective files dated as follows:
10.It is also noteworthy that the respective certificates of taxation have not been set aside nor varied and neither is there a there a dispute on retainer in the respective matter, therefore there is no justification to decline to issue orders as prayed for in prayers (1) and (2).
11.As regards prayer (3) on interest, it suffices to note that the provisions of section 51 (2) do not provide for interest. However, Rule 7 of the Advocates Remuneration Order provides that: -
12.However, I note that the certificates of taxation were issued in the year 2022. The applicant can only get interest from the date of service of the same upon the respondent and not the year claimed herein. Therefore, interest is payable from the aforesaid date and subject to proof thereof. The costs of this application is awarded to the applicant.
13.It is so ordered.
DATED, DELIVERED AND SIGNED ON THIS 30TH DAY OF JUNE, 2023GRACE L. NZIOKAJUDGEIn the presence of;Mr. Khisa for the applicantN/A for the respondentMs. Ogutu court assistant
