REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

Miscellaneous Application 364 of 2009

IN THE MATTER OF THE ADVOCATES ACT (REMUNERATION ORDER)

IN THE MATTER OF HIGH COURT SUCCESSION CASE NO. 1830 OF 1999

IN THE MATTER OF THE ESTATE OF JOHN NGUGI KIMANI

NJIIRI KANYIRI & THUKU ADVOCATES ………...………..…APPLICANT

 ADMINISTRATORS OF THE ESTATE OF JOHN

NGUGI KIMANI –DECEASED……….....……..............….1^ST RESPONDENT

PAUL NJOROGE NGUGI…………….……..………..…..2^ND RESPONDENT

JAMES GITAU NGUGI………………..…………………...3^RD RESPONDENT

PRISCA NYAKAIRU NGUGI……………..……………… 4^TH RESPONDENT

LUCY WANGUI NGUGI……………….....……………..…5^TH RESPONDENT

JOHN NGUGI WARINGA………………...………………..6^TH RESPONDENT

        By this application, the Applicant prays for judgment in terms of the certificate of costs dated 14^th June, 2012. It is made by a Notice of Motion dated 29^th June, 2012 and taken out under Section 5 (2) of the Advocates Act and Section 3A of the Civil Procedure Act.

        The application is supported by the annexed affidavit sworn on 29^th June, 2012 by Bernard Muriuki Kanyiri, Advocate and is based on the grounds that the certificate of taxation was issued against the Respondent on 14^th June, 2012 for a sum of Kshs. 13,863,538/=. It is also the Applicant’s contention that the said certificate of taxation has not been challenged, altered or set aside by the court, and that there is no dispute as to the retainer between the Respondents and the Applicant.

        At the oral canvassing of the application, Mr. Gatheru appeared for the Applicant but the Respondent’s counsel did not attend. A close scrutiny of the affidavit of service upon the Respondents shows that the Respondents were served on 20^th July, 2012, for hearing on 31^st July, 2012. Seeing that this was sufficient time for the Respondents to attend court, but they did not do so, the court proceeded ex parte.

        Mr. Gatheru told the court that the application was for judgment in terms of the certificate of costs and asked the court to grant the order as prayed. 

I note that the application is premised on Section 51 (2) of the Advocates Act. Under that provision of the law, the certificate of the taxing officer by whom any bill has been taxed is final as to the amount of the costs covered thereby, unless it is set aside or altered by the court. However, I also note from the court file that there are two pending applications whose outcome might affect this application. The first one is an application by Paul Njoroge Ngugi, the 2^nd Respondent, brought by Chamber Summons dated 18^th June, 2012 seeking the ruling and order of the Taxing Officer to be set aside. It has been given a date for hearing on 26/9/2012. The 2^nd application is brought by the 4^th, 5^th and 6^th Respondents by way of a Chamber Summons dated 20th June, 2012. It seeks orders to set aside both the ruling made by the Deputy Registrar on 6^th June, 2012 and the certificate of taxation issued on 11^th June, 2012. It further seeks an order that there was no retainer between the Applicants and the Respondents. It is scheduled for hearing on 3^rd October, 2012.

        Against that background, I don’t find it prudent to give a ruling in the application dated 29^th June, 2012. The delivery of the said ruling is accordingly stayed pending the hearing and determination of the aforesaid 2 applications.  

DATED and DELIVERED at NAIROBI this 1^st day of October, 2012.