[2023] KEHC 23369 (KLR)

Ratemo Oira & Company Advocates v Magereza Savings & Credit Co-operative Society Limited (Miscellaneous Civil Application 226 of 2020) [2023] KEHC 23369 (KLR) (Civ) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23369 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application 226 of 2020

CW Meoli, J

October 12, 2023

Between

Ratemo Oira & Company Advocates

Applicant

and

Magereza Savings & Credit Co-operative Society Limited

Respondent

Ruling

1. The live prayers for consideration in the motion dated August 16, 2022 by Ratemo Oira & Co Advocates (hereafter the applicant) seek; -“2. That this honourable court be pleased to review its ruling dated April 22, 2021 and judgement dated the December 15, 2021 on the following aspects of the disposal orders that is to say:a.By directing that the taxing master includes an application for stay of execution against the judgement/award delivered by the Chairman Co-operative Tribunal ordering Magereza Savings & Credit Co-operative Society Ltd (hereafter the respondent) to comply with the declaration of the award as per the judgement. He declared that Mageso Courts LR No 1870N/68 and Mageso Chambers LR No 209/579 are registered in the names of Magereza Sacco society limited in trust for the members who were in the respondents society register as at December 31, 1984.

That the two properties be transferred to the said members from the respondent in whatever manner they wish to form or call themselves.

That the accounts of income and expenses of the property be taken from the year 1990 to date and the profits be shared on a pro-rata basis by those members who were on the respondent's register as at December 31, 1984.

In alternative, I order that the two properties be sold and the proceeds be shared on a pro-rata basis by those members who were on the respondent's register as at December 31, 1984.

The claimants will get the costs of the suit and interest.

Prayers d, e, f, g and h in the statement of claim are hereby dismissed as they have been overtaken by events.

The aforesaid orders also apply to the Co-operative Tribunal case No525 of 2011. b.By directing that the taxing master includes amongst the list of taxable items court attendance fees on the March 21, 2014 whereby the advocate/applicant appeared before the Honourable Justice Waweru Presiding Judge Milimani Law Court civil division and argued the interim stay of execution of the judgement/award delivered by the Chairman Co-operative Tribunal on the February 28, 2014 ordering the two properties of Magereza Sacco Society limited Mageso Chambers in Moi Avenue, Nairobi on LR No 209/579 (I.R No 33490) and Mageso Court Apartments on LR No 1870/V/68 situated in Westlands within Nairobi City to be sold by the retired prison officers.(c)By directing that the taxing master includes among the taxable items court attendance fees on the 3June 1, 2014 whereby the advocate/applicant appeared before the Honourabte Justice Waweru the Presiding Judge in the High Court civil appeal No 76 & 77 of 2014 on behalf of Magereza Sacco Society limited the Appellant herein and also the firm of Muriithi Kireria & Associates appeared for the respondents when the matter was fixed for hearing on the June 3, 2014. The interim orders were extended until the June 3, 2014. (d)By directing that the taxing master includes among the taxable items court attendance fees on the June 3, 2014 whereby we appeared for the hearing of the appeal before the Honourable Justice D.A Onyancha High Court judge in the civil appeal No 76 and 77 of 2014. The court extended the interim orders of execution and gave us a hearing date for the appeal on the September 16, 2014. (e)By directing that the taxing master includes court attendance fees on the September 16, 2014 we appeared before the Honourable D.A Onyancha High Court judge in the civil division but due to the work load before the judge we were not heard and we were given a date to be heard on the following day the September 17, 2014. (f)By directing that the taxing master includes all items listed for taxation in the bill of costs until the November 4, 2014 when the advocate/applicant ceased acting for the respondent when the firm of Oraro & company Advocates officially came on record.” (sic)

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 No77 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 theCivil Procedure Rulesrequiring 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 [1997] 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 [2016] eKLR was called to aid in this regard. Citing the decisions in Evans v Bartkam [1937] 2 ALL ER 649 and Banque De Moscou v Kindersley[1950] 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; -“(1)Any respondent who wishes to oppose any application may file any one or a combination of the following documents —(a)a notice preliminary objection: and/or;(b)replying affidavit; and/or(c)a statement of grounds of opposition;”

16. Recently the Court of Appeal in Blue Thaitian SRL (Owners of the Motor Yacht ‘Sea Jaguar’) v Alpha Logistics Services (EPZ) Limited(civil appeal (application) E012 of 2020) [2022] KECA 1240 (KLR) addressed the effect of filing only grounds of opposition in response to a motion by stating that; -“Be that as may, it is notable that a statement of grounds of opposition is provided for in order 51 rule 14 of the Civil Procedure Rules as a recognized pleading opposing an application in the High Court but is not expressly provided for in the Court of Appeal Rules.What then is the import of filing grounds of opposition in response to an application filed in the Court of Appeal? A “ground” is in this regard defined in Black’s Law Dictionary, Ninth Edition at page 772 as “the reason or point that something, (as a legal claim or argument), relies on for validity”. An affidavit on the other hand is defined at page 66 as “a voluntary declaration of facts written down and sworn to by a declarant before an officer authorized to administer oaths”. Therefore, any facts sought to be introduced in an application before this court can only be done by way of an affidavit, and cannot be by way of grounds of opposition, and any attempt to do so through the respondent’s ground of opposition will be incompetent. In essence, the respondent is therefore restricted to only raising issues of law and to making legal arguments in this application.” (sic)

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.

18. In Gideon Sitelu Konchellah v Julius Lekakony Ole Sunkuli & 2 others [2018] eKLR which was initiated as a constitutional petition, and where the respondent failed to file a replying affidavit in answer to the petition, the Supreme Court held that :“A replying affidavit is the principal document wherein a respondent’s reply is set and the basis of any submissions and/or list of authorities that may be subsequently filed. Absence of this foundational pleading, the replying affidavit, it follows that even the written submissions purportedly filed by the 1st respondent ... are of no effect. Be that as it may, as a court of law, we have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the court will as a matter of cause grant the sought orders. It behooves the court to be satisfied that prima facie, with no objection, the application is meritorious, and the prayers may be granted.”

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 Ruleswhich provides that: -“(1)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.”

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; -“I have considered the submissions filed by both parties and the correspondence that has been referred to in the prosecution of the dispute and opposition thereto. From the record it is clear that the record of appeal was prepared by the applicant. It is also clear that it is the same record of appeal that was used by the advocates who prosecuted the appeal. It is also clear from the record that the appeal was determined in favour of the client.There has been some blame game in the submissions filed by both parties which however may not be of any help to the court. By a letter dated March 19, 2014 authored by the society, the client herein and addressed to the advocate, the applicant herein, the society stated as follows,“We have reliably learnt that you have proceeded and filed pleadings in the High Court, arising from the decision of the tribunal without passing it through us in spite of previous instructions that any appeal or application to be filed must be passed through us.We are particularly concerned that we had advised you during our Joint Board of Directors /Supervisory Committee Meeting held on Thursday March 6, 2014 Re: Min.080/03/2014, that due to the public interest aspect of the matter, we had identified a law firm to lead you in the proposed appeal and it would only be prudent that any document to be filed ought to have been discussed and have the input of the leader. Regrettably, you have ignored our instructions. You have exhibited reluctance to cooperate with us in the prosecution of the intended appeal and as a result we have to take the regrettable step of terminating your representation.By a copy of this letter, we hereby inform the Co-Operative Tribunal of our decision and further by a copy of this letter, we hereby instruct the law firm of Oraro & Company advocates to take over all aspects of this brief.”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,“It is in the position of the law that if there is no evidence of a retainer except the oral statement of the advocates which is contradicted by the client, the court will treat the advocate as having acted without authority/permission. …… the burden of proof to establish the retainer is always on the shoulders of the advocates….”-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)

22. The Court of Appeal in Jason Ondabu t/a Ondabu & Company Advocates & 2 others v Shop One Hundred Limited [2020] eKLR stated that an application for review involves exercise of judicial discretion. As to the principles governing an application such as the present, it is a well-trodden path. One of many decisions by superior courts discussing the principles is by Okwengu JA in Associated Insurance Brokers v Kenindia Assurance Co Ltd [2018] eKLR, where the Court of Appeal pronounced itself as follows: -“It is clear that order 45 rule 1(1) of the Civil Procedure Rules provides that a mistake or error apparent on the face of the record is one of the grounds upon which an application for review of a decree or order can be granted. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, this court had this to say regarding a review arising from a mistake or error apparent on the face of the record:“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 sufficient grounds 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.” (Emphasis added)

23. The learned judge further stated that:“In Nyamogo and Nyamogo Advocates v. Kogo [2001]1 E.A. 173 this court further explained an error apparent on the face of the record as follows:“An error apparent on the face of the record cannot be defined precisely and exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.”

24. The same court stated in Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2 others [2020] eKLR that:“It bears emphasizing that the phrase "mistake or error apparent" by its very connotation conveys the fact that the error envisaged is one which is evident per se from the record and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. It is prima-facie visible. It must relate to an error of inadvertence, one which strikes one on merely looking at record. An apparent error on the face of the record has been described in the most simplified manner by the Tanzania Court of Appeal adopting with approval commentaries by Mulla, Indian Civil Procedure Code, 14th Edition pg 2335-36 as follows:“The courts in India have for many years had to consider what is constituted by "an error apparent on the face of the record" in the context of 0. 47, r. 1 of the Code of Civil Procedure and we think their opinions are of immense relevance. We treat for this purpose as synonymous the expressions "manifest" and "apparent". The various opinions are conveniently brought together in Mulla, 14th ed., pp. 2335-36 from which we desire to adopt the following. An error apparent on the face of the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions [State of Gujarat v Consumer Education & Research Centre (1981) AIR Guj. 223]... But it is no ground for review that the judgment proceeds on an incorrect exposition of the law [Chhajju Ram v Neki (1922) 3 Lah. 127]...”

25. And where the ground of discovery of new and important matters of evidence is advanced, the Court of Appeal in Pancras T. Swai v Kenya Breweries Limited[2014] eKLR, held that:“The discovery of new and important matter or evidence or mistake or error apparent on the face of the record or for any other sufficient reason in rule 1 of order 44 (now order 45 in 2010 Civil Procedure Rules) relates to issues of facts which may emerge from evidence. The discovery does not relate or refer to issues of law. The exercise of due diligence referred to in rule 1 refers to discovery of facts but does not relate to ascertainment of existing law which the court is deemed to be alive to.”

26. Further, in Stephen Wanyoike Kinuthia (suing on behalf of John Kinuthia (Suing on behalf of John Kinuthia Marega (deceased) v Kariuki Marega &another[2018] eKLR (civil appealNo 201 of 2012) emphasized that:“An application based on the ground of discovery of new and important matter or evidence will not be granted without strict proof of such allegation.”

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) [2022] KECA 771 (KLR) cited with approval the decision of Bennett J in Abasi Belinda v Frederick Kagwamu and another [1963] EA p.557 to the effect that: -“A point which may be a good ground of appeal may not be a good ground for an application for review, and an erroneous view of evidence or of law is not a ground for review, though it may be a good ground for appeal.”

30. The applicant’s motion dated August 16, 2022 is without merit and is hereby dismissed with costs to the respondent.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 12TH DAY OF OCTOBER 2023. C.MEOLIJUDGEIn the presence ofFor the Applicant: Mr. RatemoFor the Respondent: Mr. RabutC/A: Carol