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Bruce Odeny & Co Advocates v MCtough (Environment and Land Miscellaneous Application E018 of 2022) [2023] KEELC 19209 (KLR) (27 July 2023) (Ruling)
Neutral citation:
[2023] KEELC 19209 (KLR)
Republic of Kenya
Environment and Land Miscellaneous Application E018 of 2022
E Asati, J
July 27, 2023
Between
Bruce Odeny & Co Advocates
Applicant
and
Wiliam Roman Mctough
Respondent
Ruling
1.This ruling is in respect of the Notice of Motion application dated 24th October 2022 which seeks for orders, inter alia, that the certificate of costs issued on 14th October 2022 be converted into a decree and judgement together with interest at court rates until payment in full. It also seeks for an order that costs of the application be provided for.
2.The grounds of the application were that the applicant filed its advocate-client bill of costs dated 23rd May 2022 for taxation and determination of its fees. That the bill was taxed by the taxing master of the court on 6th October 2022 and allowed in the sum of Kenya Shillings Seven Hundred and Three Thousand Eleven Shillings and Seventy Eight Cents only (Kshs.703,011.78). That a certificate of costs was issued to that effect on the 14th October 2022. That the certificate of costs has not been challenged or set aside.
3.The application was supported by the averments in the Supporting Affidavit sworn on 24/10/2022 by Bruce O. Odeny Advocate. To the Supporting affidavit was annexed a copy of certificate of costs marked “BOO1”.
4.The application was opposed vide the Replying Affidavit sworn by William Roman MCtough on 23rd February 2023 wherein the Respondent deposed that the certificate of costs sought to be made a decree had been compromised and overtaken by the operation of an order in Kisumu High Court Commercial case No.E005 of 2022 Willian Roman MCtough Vs Bruce Odeny & Company Advocates. That the application was therefore res judicata and cannot form the basis of a concurrent order/decree or certificate. To the Replying Affidavit was attached and marked as WRM1 a copy of the order. There is however, no evidence to show that the order is related to the matter herein or that the Respondent performed the order by paying the claim herein.
5.Section 51(2) of the Advocates Act empowers the court to make an order that judgement be entered for the sum certified to be due with costs. I have read and considered the application. I have also read the court record generally. The applicant’s fees was taxed by the Deputy Registrar of the court at Kenya shillings seven hundred and three thousand eleven shillings and cents seventy-eight only (Kshs.703,011.78/=) and a certificate of taxation dated 14th October 2022 issued. I have read the ruling dated 6th October 2022 by the Deputy Registrar on the taxation. There being no evidence of settlement of the taxed costs, the Certificate of Costs having not been reviewed or varied, I find that the application is merited. I allow the application and hereby enter judgement in favour of the applicant on the basis of the certificate of costs dated 14th October 2022 for Kenya shillings seven hundred and three thousand eleven shillings and cents seventy-eight only (Kshs.703,011.78/=) and interest thereon at court rates. Costs of the application are awarded to the applicant.Orders accordingly
RULING, DATED AND SIGNED AT KISUMU, READ VIRTUALLY THIS 27TH DAY OF JULY 2023 THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATIJUDGE.In the presence of:Maureen: Court Assistant.Akinyi for the Applicant/AdvocateMukoya for the Respondent/Client
