https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10268

Eno & Associates Advocates v Nairobi City County (Judicial Review E121 of 2024) [2026] KEHC 10268 (KLR) (Judicial Review) (1 July 2026) (Judgment) Neutral citation: [2026] KEHC 10268 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E121 of 2024 JM Chigiti, J July 1, 2026 Between Eno & Associates Advocates Applicant and Nairobi City County Respondent Judgment 1.The application that is before this court for determination is the one dated 27th November 2024 wherein the applicant seeks the following orders;1.That this Honourable Court be pleased to review, vary and set aside its judgment made on 14th November 2024 dismissing the Ex Parte Applicant's Notice of Motion dated 20th June 2024.2.That the Notice of Motion dated 20th June 2024 be allowed as prayed.3.That the costs of this Application be provided for. 2.It is the Applicant’s case that on 14th November 2024 this Court dismissed the Ex Parte Applicant's Notice of Motion dated 20th June 2024.The Ex Parte Applicant is aggrieved by the said judgment and seeks to review the same. 3.It is argued that the Application for review is premised on a mistake or error apparent on the face of the judgment dated 14th November 2024. 4.The gist of the Ex Parte Applicant's Notice of Motion dated 20th June 2024 was to enforce payment of Advocate-Client costs regulated by section 51 (2) of the Advocates Act. 5.It was its case that Section 51 (2) aforesaid stipulates that a Certificate of Taxation issues to confirm costs payable to the Advocate. The same applies to final decrees and Party and Party costs. 6.The requirement to extract and serve a Certificate of Order upon the Attorney General under section 21 of the Government Proceedings Act does not apply to Advocate Client matters according to the Applicant. 7.It is further its case that since the Respondent is a County Government which is distinct from the Central Government, the requirement under section 21 (2) of the Government Proceedings Act to serve a Certificate of Order upon the Attorney General does not apply to it. 8.It is it’s case that the principal finding of the court was that the Ex Parte Applicant erred in failing to extract a Certificate of Order under section 21 (1) and (2) of the Government Proceedings Act and serve it upon the Attorney General before seeking an order of Mandamus. 9.The said provision deals with execution in matters involving decrees or Party and Party costs in a suit between the Government and a private person/entity. 10.The Ex Parte Applicant's Notice of Motion sought to enforce payment of Advocate- Client's taxed costs which is regulated by Section 51 of the Advocate's Act. 11.The latter section stipulates that before the said costs may be recovered by court action, a certificate of Taxation ought to issue by the Taxing Master. 12.In this case the said Certificate was issued, served upon the Respondent and attached as exhibit to the said Notice of Motion. 13.It was not necessary for the Ex Parte to attach a Certificate of Order as held by the Honourable Court according to it. 14.Further, it is its case that service of a Certificate of Order/Taxation upon the Attorney General (which is not mandatory under section 21 of The Government Proceedings Act) was not necessary in this matter because the Respondent is a County Government which is distinct from the Central Government. 15.The Attorney General plays no role in execution proceedings involving devolved governments. The Respondent's case; 16.In response to the above, the Respondent filed Grounds of opposition dated 18th July, 2025 opposing the said application. 17.According to the Respondents the Application offends Order 45 of the Civil Procedure Rules 2010 which permits review only upon;1.Discovery of new evidence.2.Mistake / error apparent on the face of the record; or3.Any other sufficient reason. 18.The court in its judgement correctly relied on the applicable Laws and no patent error exists. The court in David Onyango & 2 Others-Vs-Paul Wafula Bakaya (2025) KEHC 12790 emphasized the that an error which is not self-evident and which cannot be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power of review. 19.The judgement correctly held that the Applicant failed to furnish the court with a certificate of order as required under Section 21 of the Government Proceedings Act thus rendering its case unproven. 20.It is not disputed that the Applicant attached only a Certificate of Taxation and Decree but not a certificate as per the law. 21.They submit that the Applicant has failed to demonstrate any fault that necessitates or deserve to be reviewed.Analysis;The issue for determination is;1.Whether the application has merit.2.Who shall bear the cost. Whether the application has merit. 22.In determining this issue, the court is guided by Section “80 of the Civil Procedure Act provides that, Any person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit”. 23.Order 45 rule 1 (1) provides as follows:“Any person considering himself aggrieved:(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay". 24.In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR High Court of Kenya Nairobi Judicial ReviewDivision Misc. Application No. 317 of 2018 John M. Mativo Judge culled out the following principles from a number of authorities which included: -A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise. 25.The expression "any other sufficient reason" appearing in Order 45 Rule I has to be interpreted in the light of other specified grounds. 26.An error which is not self-evident and which can only be discovered by and after a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80 of the Civil Procedure Act. 27.An erroneous order/decision cannot be corrected in the guise of exercise of power of review. 28.While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent. 29.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier. 30.In the instant application the applicant anchors its application on the arguments that the requirement for the service of a certificate of order against the Government does not apply in cases of client advocate costs. 31.The applicant also argues that the Respondent is not a government. As a result of which it is not bound by Section 21 of The Government Proceedings Act. 32.What is clear from the above is that the applicant admits that it did not serve a Certificate of Order upon the Respondent. 33.It is also clear that the applicant is inviting the court to determine whether the Respondent is Government. 34.It is my finding that if this amounted to an error, then the same is not self-evident. This is an issue that would invite the court into a long process of reasoning that cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80 of The Civil Procedure Act. 35.It is my finding that this court cannot open this fundamental issue when sitting to review its judgment. 36.This is a weighty legal question that the applicant should have effectively raised on appeal given that this court addressed its mind to it while arriving at the impugned judgment. 37.To reopen that question would offend the functus officio doctrine and I so hold. 38.Further, if the judgment is erroneous, order/decision it cannot be corrected in the guise of exercise of power of review. Determination: 39.The application lacks merit.Order;The application is dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET THIS 1ST DAY OF JULY, 2026.……………………………….J. CHIGITI (SC)JUDGE