https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6744

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL & TAX DIVISION** **MISC. APPLICATION NO. 329 OF 2013** **ANTHONY THUO KANAI T/A** **A.THUO KANAI ADVOCATES………………..……..APPLICANT/ADVOCATE** **VERSUS** **CANNON ASSURANCE LIMITED……..………………RESPONDENT/CLIENT** **RULING** 1. The Ruling is in respect of an Application for Review. It is similar to the Rulings delivered in related matters in E125 of 2013 and E126 of 2013. It raises an issue that continues to engage the practitioners of the law. This is whether a party who is aggrieved by a decision of the Court ought to file an application for Review or an Appeal. Whereas it may appear that the grounds for review are clear and well settled, in practice, making that judgement call on whether to pursue an Appeal or a Review is not so clear cut. In considering this application for Review, the Court reminds itself that it is not sitting as an Appellate Court. That in any event it lacks the jurisdiction to sit over the decision of it brother Lord Justice and namesake **Benjamin Mwikya Musyoki J**. **Background Facts** 1. The Applicant filed the Notice of Motion dated 4th April, 2025 seeking the following orders; 2. *The Court to review and set aside the Order/ruling dated 14th March, 2025 and thereby reinstate the Applicant’s application dated 20th July 2021.* 3. *The Court to consequently allow all the prayers in the application dated 20th July, 2021 upon reinstating the said application.* 4. *The costs of this application be provided for.* 5. The Application was based on the grounds on the face of it and supported by the Affidavit of **Anthony Thuo Kanai** and Advocate. He contended that this Court’s ruling dated 14th March, 2025, which held that the Taxing Officer lacks jurisdiction to determine the issue of retainer and directed that it be re-litigated, is *res judicata.* That it effectively amounts to the Court sitting on appeal and overturning the decisions of **Justice David Majanja** (10th March, 2014) and the Court of Appeal (25th November, 2016), both of which conclusively affirmed the Taxing Officer’s jurisdiction. 6. The Applicant, therefore urged the Court to review and set aside the said ruling on the basis of an error apparent on the face of the record. Counsel noted that they were not afforded an opportunity to bring the earlier binding decisions to the Court’s attention. This is particularly so as the issue was raised *suo moto*. That this constitutes sufficient ground for review. 7. In Response, the Respondent filed Grounds of Opposition dated 7th April, 2025 on the grounds that; 8. *It does not raise any of the matters contemplated under Order 45 rule 1 of the Civil Procedure rules.* 9. *The issue raised by the Applicant is provided for under Order 43 of the Civil Procedure rules.* 10. *The application dated 6/10/2021 was not dismissed and the Ruling of the taxing master dated 1/7/2021 cited the ELC No. 162 of 2015 between the parties as having determined the relationship between the parties herein. That determination has since been appealed against by the Applicant in Civil Appeal No. E516 of 2021 which is pending hearing and determination.* **Issues for determination** 1. The Court has carefully considered the Application, response, the written submissions and oral highlights by Counsel for the parties. The Court frames a single issue for determination as follows; 2. *Whether the Applicant has made out a case for review.* **Analysis** 1. A brief background to this Application is that the Applicant filed a Bill of Costs dated 29th July, 2013. He sought to recover Advocate–Client fees following the Respondent’s failure to settle the fee note. However, the Respondent delayed the taxation process by raising an objection on the issue of retainer before the Taxing Officer. This objection was dismissed in rulings delivered on 25th June, 2013, and the Bill was eventually taxed and allowed at Kshs.78,165/= on 5th May, 2021. 2. There was no appeal by way of a reference to this Court on the issue of costs. 3. Subsequently, the Applicant filed an application dated 6th October, 2021 seeking to have the Certificate of Taxation issued on 8th July, 2021 adopted as a judgment of the Court for the sum of Kshs.78,165/= together with accrued interest. **This is pursuant to Section 51(2) of the Advocates Act.** 4. Vide the Ruling dated 14th March, 2025 *(now sought to be reviewed)*, this Court declined to allow the Applicant’s application dated 6th October, 2021. This is on the basis that the Taxing Officer had no jurisdiction to determine the issue of retainer. Further the Court ordered that the Applicant pursue the issue of retainer before a Judge before the application for entry of judgment is entertained. 5. The Applicant has now filed this present Application seeking a review of the decision dated 14th March, 2025. This is on the twin grounds that the said ruling/order ought to be reviewed and set aside, on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. 6. The Court has the discretion to review its own judgment or decree. This is as per **Section 80 of the Civil Procedure Act**. The discretion ought to be exercised judicially primarily upon the grounds set out under **Order 45 of the Civil Procedure Rules**, to wit: - discovery of new and important matter or evidence or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. 7. The Applicant argued that the Respondent did not dispute the Taxing Officer’s jurisdiction to determine the issue of retainer in its replying affidavit dated 28th October, 2024. That the matter was instead raised *suo moto* by the Honourable Judge in the ruling delivered on 14th March, 2025. Notably, the Respondent refrained from challenging that jurisdiction as it was well aware that the Taxing Officer was properly seized of the issue, as affirmed in prior decisions involving the same parties. This is including the judgment of **David Majanja J.** delivered on 10th March, 2014 in ***Cannon Assurance Limited v Anthony Thuo Kanai & another [2014] KEHC 5966 (KLR)***. The decision was subsequently upheld by the Court of Appeal in ***Cannon Assurance Limited v Anthony Thuo Kanai & another [2016] eKLR*.** Accordingly, by raising the issue *suo moto*, the Honourable Judge inadvertently denied the Applicant the opportunity to bring these binding authorities to the Court’s attention. The decisions clearly established the Taxing Officer’s jurisdiction to determine all objections on the Bill of Costs, including the issue of retainer. 8. On the other hand, the Respondent took the position that the Applicant has failed to establish any of the statutory grounds for review under **Section 80 of the Civil Procedure Act** and **Order 45 Rule 1 of the Civil Procedure Rules**. That no error apparent on the face of the record has been demonstrated, such error being one that is self-evident and does not require elaborate argument. That mere disagreement with the Court’s reasoning on jurisdiction cannot suffice. Moreover, the issue of jurisdiction is one that a Court is entitled to raise *suo moto*. That any challenge to the correctness of such a finding properly lies on appeal rather than Review. That in any event the Applicant has also failed to demonstrate any **“other sufficient reason,”** which must be analogous to an error apparent or the discovery of new evidence. This is because complaints regarding the Court having acted *suo moto* or allegedly denying a fair hearing, even if arguable, would constitute grounds for appeal and not for review. 9. The term *“mistake or error apparent”* signifies an error that is so obvious that it can be identified from the record without detailed scrutiny or debatable interpretation. It has to be a glaring error or one that the Court would refer to as *“kosa linalo jionyesha wazi wazi.”* Where detection of the alleged error requires lengthy reasoning or analysis, then it does not qualify as an error apparent under **Section 80 of the Act** or **Order 45 Rule 1 of the Civil Procedure Rules.** Therefore, does this review qualify under other sufficient reason? 10. In ***Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR***, the Court of Appeal was emphatic that: - ***“Order 44 Rule 1.. gave the trial court discretionary power to allow review on three limps therein stated or ‘for any sufficient reason’… As repeatedly pointed out in various decisions of this Court, the words ‘for any sufficient reasons’ must be viewed in the context firstly of section 80 of the Civil Procedure Act, Cap 21, which confers an unfettered right to apply for review and secondly on the current jurisprudential thinking that the words need not be analogous with the other grounds specified in the order.”*** 1. A cursory look at both cases relied on by the Applicant, namely ***Cannon Assurance Limited v Anthony Thuo Kanai & another [2014] KEHC 5966 (KLR)*** *and* ***Cannon Assurance Limited v Anthony Thuo Kanai & another [2016] eKLR****,* the Courts did not determine the issue of whether the Applicant and Respondent enjoyed an Advocate-Client relationship. 2. In ***Petition No. 433 of 2013 Cannon Assurance Ltd v Anthony (Thuo Kanai & the Attorney General),*** the Judge said in part that; ***“whether the learned Deputy Registrar was right or wrong is a matter to be determined by a reference filed in accordance with Paragraph 11 of the Advocates Remuneration Order”*** 1. The Court in ***Anthony Thuo Kanai t/a Thuo Kanai Advocates v Cannon Assurance Limited (Miscellaneous Application 256 of 2013) [2023] KEHC 1251 (KLR) (Civ) (23 February 2023) (Ruling)*** shared the same thoughts as follows; ***“Upon my perusal of the authorities referenced by the applicant to support his claim on res judicata, I concur with the argument by the respondent that in both cases namely Petition No. 433 of 2013 Cannon Assurance Ltd v Anthony (Thuo Kanai & the Attorney General); Civil Appeal No. 177 of 2014 (Cannon Assurance Ltd v Anthony Thuo Kanai & the Attorney General), the courts did not make a determination on the issue of whether the applicant and respondent enjoyed an advocate-client relationship. As concerns Nairobi Misc. Application No. 263 of 2013 (A. Thuo Kanai Advocates v Cannon Assurance Ltd), it is apparent that the same arose out of a finding made by the taxing master in respect to a separate matter.”*** 1. In the impugned decision, **Benjamin Musyoki J**. noted that decisions vary as to who as between the Judge and the Taxing Master ought to be the proper person to try the issue of the retainer. He cited **Ondunga J.** *(as he then was)* in **J Mbugua Mburu & Associates Advocates v City Star Shuttle Ltd (2021) KEHC 1532 (KLR).** 2. To this Court that jurisdiction to determine the issue of retainer ought to be determined by the Taxing Master at the first instance**.** The Court follows the decision of the Court of Appeal in **Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited [2017] KECA 431 (KLR).** 3. The fact that there is already a Certificate of Costs issued by the Taxing Master shows that the Taxing Master has already dealt with this file. 4. My brother was of the view that this issue of retainer ought to be canvassed before the Judge before the application for Adoption of the Advocates Certificate of Costs as a Decree of the Court can be heard. In his Ruling, my brother stated as follows: *“Paragraph 11 of the Advocates Remuneration Order makes provision for challenging of a decision of a taxing officer which includes taxation of bill of costs. The respondent has not expressed its desire or intention of challenging the ruling of the taxing officer dated 1-07-2020. This means that the respondent does not challenge the quantum of costs as taxed. Its only problem is that, according to it, there was no retainer or advocate/client relationship between it and the applicant.* *Under Section 51(2) of the Advocates Act judgment should not be entered if there is dispute on retainer. The Section provides that;* *‘The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.’* *Although the certificate of taxation has not been contested the applicant has not overcome the hurdle of retainer. In* ***Ochieng, Onyango, Kibet & Another v Adopt A Light Limited (2007) KEHC (KLR)****, the court held as follows;* *“I am in agreement with the sentiments expressed by Visram J in Misc. Civil application No.651/2004 Nairobi, in Owino Okeyo & co. Advocates vs Mike Maina when he said;* *‘In my view the section (read section 51(2) is applicable where there is no dispute about the retainer. In that situation, it makes it expedient and less costly for the Advocate to obtain a quick judgement. And that, I believe is the purpose of that section. That in clear cut situations where there is no dispute about the retainer and the bill of costs has been taxed, it would be highly unjust to require the Advocate to file suit for the recovery of his fees.* *Following the above, I have come to conclusion that the application dated 20-07-2021 cannot be granted at this point. It has to wait until the issue of retainer is determined by a Judge of this court. The same is declined. In the circumstances, I direct that either party shall file an appropriate application for determination of the issue of retainer by a Judge before application for entry of judgment is considered.”* 1. The Court notes that this Court differently constituted held a firm view and position that the issue of a retainer is one for determination by the Judge and not the Taxing Master. 2. It follows then that this Court cannot purport to review that position so aptly set out by its Learned Brother Judge on the sole reason that it holds a different position or its conclusions based on the law are different from that of its brother Judge. It matters not that the Applicant and this Court seem to be leaning in the same direction on this issue. 3. This Court agrees with the Respondent’s Counsel that if the Applicant was aggrieved by this turn of events, this was an appealable issue and not one for review. The Court is bound by the decision of the Court of Appeal in [**National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/1997/71/eng%401997-05-27)where it held as follows: *“16.A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.* *17.In the instant case the matters in dispute had been fully canvassed before the learned Judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise we agree that the learned Judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it.”* 1. Having found that the Court cannot review this decision, the options left to the Applicant is to either appeal the decision of 14th March, 2025 or comply with the directions that flow from that Ruling. 2. The upshot is that the Application is dismissed. 3. On Costs, the same lie at the discretion of this Court. They follow the event. The costs are awarded to the Respondent. **Determination** 1. The Applicant’s Application by way of a Notice of Motion dated 4th April, 2025 is HEREBY dismissed for lack of merits. 2. The Costs thereof are awarded to the Respondent. 3. It is so ordered. **DATED, SIGNED AND DELIVERED AT MILIMANI THIS 18TH DAY OF MAY, 2026.** **NJOROGE BENJAMIN K.** **JUDGE** In the presence of; Mr. Thuo Kanai for the Advocate/Applicant. Mr. Wambugu Gitonga for the Client/Respondent. Ms. Susan Nzioka - Court Assistant.