1.The live prayers for consideration in the motion dated August 16, 2022 by Ratemo Oira & Co Advocates (hereafter the applicant) seek; -
2.The motion is expressed to be brought pursuant to section 1A, 3A & 80 of the Civil Procedure Act (CPA) and order 45 rule 1 of the Civil Procedure Rules (CPR) inter alia. On grounds on the face of the motion, as amplified in the supporting affidavit sworn by Ratemo Amenya, counsel having conduct of the matter on behalf of the applicant. The gist thereof is that the late Ratemo Oira Advocate was personally acting for the respondent in a matter before the Co-operative Tribunal and giving rise to Nairobi High Court civil appeal No 77 of 2014 until he ceased acting and subsequently filed a bill of costs dated June 24, 2020 but passed away on March 24, 2021. That the deponent is a son of the deceased counsel, and the passing of his father affected him emotionally and psychologically.
3.He deposes further that on June 24, 2020 the applicant lodged a bill of costs arising out of Nairobi High Court civil appeal No 77 of 2014 but an objection was raised by the respondent when the same bill came up for taxation before the Deputy Registrar (DR). That the objection was heard by Mbogholi, J. (as he then was) and a ruling being delivered on April 22, 2021 by which date Ratemo Oira Advocate had passed on.
4.He states that Mbogholi, J. (as he then was) in his said ruling issued directions to the taxing officer to determine how much the applicant was entitled to be paid for the item in respect of preparation of the record of appeal on behalf of the respondent only, leaving out other key and crucial services that the applicant rendered to the respondent. Therefore, it is in the interest of justice that the court reviews the orders to allow the applicant to be paid for all other services rendered in Nairobi High Court civil appeal No 77 of 2014, as itemized in its the bill of costs, before the firm of Oraro & Co. Advocates came on record and the applicant ceased from acting.
5.That the applicant seeks to review the subject ruling to include all instructions carried out on behalf of the respondent including but not limited to preparation of a certificate of urgency, notice of motion dated March 18, 2014 and supporting affidavit together with annexures in pursuit of stay of execution of the judgment delivered by the Chairman of the Co-Operative Tribunal on the February 28, 2014. He goes on to assert that following the ruling of this court, the applicant’s bill of costs was taxed on September 16, 2021 in accordance with Mbogholi J’s (as he then was) directions, resulting in momentous loss to the applicant.
6.He states that the instant motion was filed without undue delay after the death of the late Ratemo Oira Advocate and that the applicant will suffer irreparable loss if this court declines the motion. In conclusion he deposes that motion is brought in good faith as the respondent enjoys the fruits of a favourable decision in Nairobi High Court civil appeal No 77 of 2014 due to efforts of the applicant.
7.In response, the respondent filed grounds of opposition dated October 25, 2022. To the effect that the application is not only defective but also an abuse of court process as it does not satisfy the threshold for review of an order or decree as set out under section 80 of the Civil Procedure Act, as read together with order 45 of the Civil Procedure Rules, to wit: -(a)that there is a discovery of new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed;(b)that there was a mistake or error apparent on the face of the record(c)that there were other sufficient reasons; and(d)that the application was made without undue delay.
8.The grounds further state that the application dated August 16, 2022 and served on October 6, 2022, has been brought too late in the day, almost one (1) year after the decision of the taxing master delivered on September 16, 2021 and is an afterthought thereby falling afoul the requirements of order 45 of the Civil Procedure Rules requiring that an application for review be brought without undue delay; that whereas the application makes reference to the ruling of this court ( Msagha Mbogholi J) , as he then was) dated April 22, 2020 and the decision of the taxing master (Hon L.A Mumassabba) dated September 16, 2021, it does not specifically disclose the parts of the said decisions sought to be reviewed and/or set aside; and that the application is bad in law to the extent that it is a camouflaged bid to circumvent the legal requirement to file a reference , and invites this court, to make orders that can only be pursued and obtained in a reference.
9.Further that the decision by the applicant to file the application amounts to double standards because following decision of the taxing master, the applicant was paid, and accepted payment, of the amounts taxed by the taxing master, which fact the applicant has not disclosed in the application; that in any event the applicant has not disclosed the reasons for delay in filing the application ; that the application is premised on a misapprehension of the decision of the taxing master in so far as it invites this court to direct the taxing master to tax all items in the bill of costs dated June 24, 2020, which items had been taxed and reasons given by the taxing master in the ruling dated September 16, 2021; and that having delivered her ruling on September 16, 2021, the taxing master became functus officio in respect of the bill of costs dated June 24, 2020 hence, no orders can issue directing the said officer to tax the bill afresh.
10.The motion was canvassed by way of written submissions. On the part of the applicant, counsel first restated the contents of the motion and supporting affidavit and, citing the provisions of section 80 of the (CPA) and order 45 rule 1 of the (CPR) reiterated the factors to be considered by the court when presented with a motion of this kind and in respect of which it is statutorily empowered to entertain. Addressing the first limb of order 45 rule 1 of the CPR, counsel generally reiterated the key depositions in the supporting affidavit. Concerning whether there was an error or mistake apparent, instructions to file an application for stay of execution and subsequent various attendances were not included by the taxing officer for purposes of taxation.
11.Counsel asserted that the motion was presented as promptly as possible, given the passing of Mr Ratemo Oira Advocate and his relationship with the deponent of the supporting affidavit, and taking due cognizance of the voluminous nature of the bill of costs. In urging the court to allow the motion counsel relied on the decisions in Nyamogo v Kogo (2001) EA 174 as cited in Muyodi v Industrial & Commercial Development Corporation (2006) 1 EA 243.
12.On the part of the respondent, counsel equally restated the events leading to the application and anchored his submissions on the provisions of order 45 of the (CPR), the decisions in National Bank of Kenya Limited v Ndung’u Njau  eKLR and Muyodi (supra) to contend that the grounds stated in the applicant’s motion do not meet the threshold as set out in the above decisions. That the grounds advanced suit an appeal against the judge’s decision being in respect of issues considered in the court’s final determination.
13.Secondly, it was argued that the instant motion lacks merit on grounds that upon delivery of the judge’s ruling, the applicant proceeded to take necessary steps towards pursuing the disposal of the bill of costs which culminated in the delivery of the taxing officer’s decision. And that if the applicant was aggrieved by the said ruling nothing barred it from promptly challenging the same; that after delivery of the ruling the applicant proceeded to pursue payment and or settlement from the respondent. This, and the failure to file a reference signaling acceptance by the applicant of the taxing officer’s decision. Hence, it’s right were automatically extinguished.
14.It was also emphasized that the instant motion was filed one year after the judge’s ruling and four years after the delivery of the subject judgment and no explanation has been proffered for the delay. The decision in Stephen Gathua Kimani v Nancy Wanjiru Waruingi t/a Providence Auctioneers  eKLR was called to aid in this regard. Citing the decisions in Evans v Bartkam  2 ALL ER 649 and Banque De Moscou v Kindersley  2 ALL ER 549 counsel submitted that the applicant cannot be allowed to approbate and reprobate, by accepting payment of taxed costs and thereafter re-opening the taxing officer’s decision. That the applicant having failed to file a reference cannot now be heard to challenge the judge’s ruling and the judgment delivered on December 15, 2021 from which he has drawn a benefit, as erroneous and liable for reviewed. In summation the court was urged to dismiss the motion with costs.
15.The court has considered the material canvassed in respect of the motion. It would be apt at this juncture to that while the respondent opted to file grounds of opposition in response to the motion, these canvass factual matters. Order 51 rule 14 (1) of the Civil Procedure Rules prescribes for different approaches in opposing a motion presented before the High Court as follows; -
17.Even though the respondent was within its rights to file grounds of opposition rather than a replying affidavit, matters of fact can only be properly deposed under oath. In opting to file grounds of opposition the respondent restricted itself to issues of law and legal arguments only. Nonetheless, an application for review involves the exercise of judicial discretion as governed by established principles, and the absence of a replying affidavit by the respondent does not necessarily give free rein to the applicant.
19.Moving onto the substantive issues for determination, the applicant’s motion is anchored on the provisions of order 45 (1) of the Civil Procedure Rules which provides that: -
20.Upon a cursory review of the applicant’s material in support of the motion and submissions thereon, it appears that the motion is essentially premised on the ground of error or mistake apparent on the face of the record, with allusion to discovery of new and important matter. The factual background relied on being that as at delivery of the ruling of Mbogholi J (as he then was) ruling on April 22, 2021, Ratemo Oira Advocate, counsel originally having conduct of the matter, had passed away; that by the said ruling directions issued to the taxing officer to determine how much the applicant was entitled to be paid for the preparation of the record of appeal for the respondent, but leaving out other alleged substantive services that the applicant rendered to the respondent in Nairobi High Court civil appeal No 77 of 2014 while seized with the conduct thereof, and as itemized in the bill of costs.
21.I find it apposite to set out in extenso the ruling that is the subject of the instant motion. The same stated in part; -The contents of the above letter were clear and unequivocal. As at March 6, 2014, the applicant was aware that no step should be taken without the input of the client. That notwithstanding the applicant went ahead and filed a memorandum of appeal dated March 12, 2014 contrary to the client’s instructions. In addition, the applicant filed a notice of motion dated March 18, 2014 seeking, inter alia, orders of stay of execution of the tribunal judgment.The record of appeal was subsequently filed on March 27, 2014 once again without reference to the client as expressed in the above letter.In the case of Ohaga v Akiba Bank Limited (2008) 1 EA 300 the court stated as follows,-See also Halsbury’s Law of England 4th Edition Vol. 3 (1) and Bugere Coffee Growers Limited v Sebaduka (1970) EA 148.From the record it is clear the applicant acted contrary to instructions set out by the client. However, he performed substantial work on behalf of the client which, even if performed without instructions, should be compensated.This court is not the taxing master and at the end of it all the said officer shall be seized of this dispute.My assessment of the dispute is that the applicant should be paid for the preparation of the record of appeal so that the effort is recognized.I leave it to the taxing master to determine the sum to be paid to the applicant in that regard. The two records shall now be returned to the lower court for appropriate action.” (sic)
23.The learned judge further stated that:
27.Applying the foregoing wisdom to the facts of this case, it is evident on a plain reading of the ruling of Mbogholi J. (as he then was) that the learned judge exhaustively addressed the contest before him as to what service or item in the bill of costs was to be subjected to taxation before the taxing officer. There is no ambiguity regarding the determination rendered thereon. It is also evident that by this application, the applicant is challenging the key findings of law and fact contained in the ruling. The applicant asserting that it was entitled not just to payment in respect to the filing of the record of appeal, as found by Mbogholi J, but to other services as well. This assertion adverts not to the ground of error apparent on the face of the record or discovery of new material, but to an error of law and/or fact, which is properly a ground for appeal rather than review.
28.Moreover, a perusal of the record reveals that subsequent to the ruling of Mbogholi J. (as he then was), the respondent prosecuted its bill of costs to its logical conclusion culminating in the entry of judgment in favour of the applicant. Having abjured the right to appeal the decision of Mbogholi J or to file a reference regarding the taxation of the bill of costs, the applicant cannot approach this court at this late hour seeking review of the ruling of Mbogholi J as it has done. The court declines the covert invitation to sit on appeal on the ruling of Mbogholi J. Indeed, on that score the court agrees with the respondent’s view that the present application constitutes a disguised appeal, from the decision of both Mbogholi J and the taxing master.
29.The Court of Appeal in Solacher v Romantic Hotels Limited & another (Civil Appeal 167 of 2019)  KECA 771 (KLR) cited with approval the decision of Bennett J in Abasi Belinda v Frederick Kagwamu and another  EA p.557 to the effect that: -
30.The applicant’s motion dated August 16, 2022 is without merit and is hereby dismissed with costs to the respondent.