https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9472

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS** **HCCOMM MISC. APPLICATION NO. E283 OF 2024** **ASHIRUMA & CO. ADVOCATES........................ADVOCATE/RESPONDENT** **VERSUS** **JOSEPH NGAIRA MATERE..........................................CLIENT/APPLICANT** **RULING** **Introduction** 1. Before Court is the Client's Notice of Motion dated 17th December 2025 brought under Order 45 Rule 1 of the Civil Procedure Rules, Sections 1A, 3A and 80 of the Civil Procedure Act and other enabling provisions of the law. The Applicant seeks, principally, review of this Court's ruling delivered on 27th November 2025. 2. The application is supported by the affidavit of **Joseph Ngaira Matere**, sworn on 14th December 2025, and opposed through the Replying Affidavit of **Herbert J. Ashiruma,** sworn on 13th January 2026. 3. The parties also filed written submissions, which I have carefully considered. The Applicant’s submissions are dated 18th February 2026, whilst that of the Respondent is dated 12th February 2026. 4. The dispute originates from an Advocate-Client Bill of Costs dated 3rd April 2024, which was taxed by the Deputy Registrar on 5th September 2024 at Kshs. 1,369,009/=, and a Certificate of Taxation issued on 10th September 2024. 5. Aggrieved by the taxation, the Client filed a reference dated 17th September 2024 challenging, inter alia, the award of getting-up fees, certain drawing fees, VAT, enhancement by fifty per cent, and the taxing master's alleged failure to account for an advance payment of Kshs. 284,000/=. 6. Upon hearing the reference, this Court delivered its ruling on 27th November 2025. The Court found merit only in the challenge to Item 2 relating to getting-up fees, set aside that item, and directed amendment of the Certificate of Taxation. The Court also vide the same ruling dismissed the Advocate's application for adoption of the certificate as a decree as premature in view of the aforesaid amendment to the Certificate of Taxation. 7. The Client in the present application now contends that although the issue of the alleged advance payment of Kshs. 284,000/= was specifically raised in the reference; the Court failed to make any determination thereon. According to the Client, such omission amounts to an error apparent on the face of the record, warranting review. 8. The Advocate, in opposing the application, argued that no ground for review has been established. It is contended that the alleged payments were not made exclusively in respect of the present matter, that the Client had several files being handled by the Advocate, and that similar M-Pesa statements have been deployed in other taxation proceedings where deductions have already been granted. **Analysis and Determination** 1. From the parties’ respective submissions, the sole issue for determination is whether the Applicant has satisfied the requirements for review under Order 45 Rule 1 of the Civil Procedure Rules. 2. Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules grant this Court the jurisdiction to review its decision where there is discovery of new evidence, an error apparent on the face of the record, or any other sufficient reason. 3. The principles governing review are settled. In **National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR**, the Court of Appeal held that a review may only be granted to correct a self-evident error or omission and not because another judge may have arrived at a different conclusion. 4. Likewise, in **Nyamogo & Nyamogo Advocates v Kogo [2001] EA 170**, the Court held that an error apparent on the face of the record must be obvious and should not require a long-drawn process of reasoning. 5. I have revisited the ruling delivered on 27th November 2025. At paragraph 4 (c) thereof, the Court expressly identified one of the complaints by the Client as follows: *"Failing to account for an advance payment of Kshs. 284,000."* 1. The reference filed on 17th September 2024 had equally raised the same issue as one of the grounds upon which the taxation was challenged. The supporting affidavit filed in support of the reference exhibited M-Pesa statements (“JMM 2”), and the Client specifically complained that the taxing master had failed to factor in the alleged payment. 2. Likewise, in the replying affidavit to the reference, the Advocate joined issue on the alleged payment and maintained that only Kshs. 70,000/= had been paid in relation to the present matter. 3. Having examined the entirety of the ruling, I note that while this Court addressed the challenge to getting-up fees and the taxation of Items 7, 13, and 14, no determination was ultimately made regarding the alleged advance payment of Kshs. 284,000/=, despite having been identified as one of the Applicant’s complaints. 4. In my view, failure by the Court to pronounce itself on that substantive issue squarely raised by the parties and identified in the ruling itself constitutes an omission discernible from the face of the record, hence amenable to review. 5. Accordingly, I find and hold that the Applicant is therefore entitled to a limited review of the ruling to that extent. 6. The question that then arises is whether, upon review, the Court should proceed to allow the claimed deduction of Kshs. 284,000/=. 7. The material before Court reveals a serious factual contest regarding the alleged payments. The Client relies on a filtered M-Pesa statement reflecting payments made to the Advocate between July 2019 and November 2020 totaling Kshs. 284,000/=. 8. The Advocate, on the other hand, asserts that the Client had several matters being handled by his firm and that the same M-Pesa payments cannot automatically be attributed to the present file. The Advocate further produced material from other taxation proceedings, indicating that deductions of Kshs. 100,000/= and Kshs. 20,000/= had already been taken into account in separate matters involving the same Client. 9. The Court notes that the filtered M-Pesa statement exhibited by the Client does not identify the purpose of each payment, the specific file to which a payment related, whether the payment was intended as professional fees or disbursements, or how the total sum is to be apportioned among the various matters admittedly handled by the Advocate. 10. While I accept that payments were made by the Client to the Advocate, the material presently before me is insufficient to establish that the entire sum of Kshs. 284,000/= was paid exclusively in respect of **HCCC No. E308 of 2019** from which the present Advocate-Client Bill of Costs arose. 11. It is settled that the taxing master's decision can only be interfered with upon clear demonstration of error in principle. On the material placed before Court, no sufficient basis has been established for a finding that the taxing master erred in declining to treat the entire Kshs. 284,000/= as a payment made specifically in respect of the subject matter. 12. Consequently, while it is established that the omission by the Court to make a determination on the issue amounted to an error apparent on the face of the record, I find that the Client has not discharged the evidential burden necessary to justify a deduction of Kshs. 284,000/= from the taxed costs in this matter. 13. The upshot of the foregoing is that the Court declines to disturb its substantive findings contained in the ruling of 27th November 2025. 14. Given that the review application has succeeded only to the limited extent of correcting an omission by the Court, each party shall bear its own costs of the application. 15. It is so ordered. **DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026** **** **HON. MR. JUSTICE MOSES ADO *Judge of the High Court*** **In the Presence of:** *Moses C/A* *.………………for the Applicant* *……………for the Respondent*