https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13008

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU SUCCESSION CAUSE NO. 17 OF 2020 IN THE MATTER OF THE ESTATE OF LATE ELIJAH KINYANJUI MWANGI AGIMBA & ASSOCIATES ADVOCATES….ADVOCATE/RESPONDENT VERSUS ESTATE OF JOHN MWANGI KINYANJUI…..……CLIENT/APPLICANT RULING 1. What is before the court is the Notice of Motion application dated 23rd June, 2025 which seeks the following orders: a) Spent. b) Spent. c) THAT this Honorable Court be pleased to review, vary and/or set aside its ruling delivered on 28th May, 2025 and the taxed costs of Kshs.8,776,283.70 awarded in favour of the Advocate s/Respondent; d) THAT upon, review, the Court be pleased to re-tax the Bill of Costs dated 31st January 2023 , ,afresh, based on correct and HC SUCC. NO.17 OF 2020 RULING - Page 1 of 8 verified documentation and in consideration of the Replying Affidavit on record; e) THAT costs of this application be in the cause. 2. The application is based on the grounds as set out on its face and expounded in the Supporting Affidavit of Lydia Wanjiru Kinyanjui sworn on the instant date. The Applicant holds that it seeks to review a Ruling was delivered on 28th May, 2025 in respect of the Bill of costs. 3. The application is opposed through Replying Affidavit of Thomas Agimba sworn on 16th August, 2025 on the basis that it is incurably defective and abuse of court process. The Respondent holds that the applicant has not met the legal threshold for review under Order 45 Rule 1 of the Civil Procedure Rules and the grounds raised do not meet the standard as they can only be determined through an appeal nor review. Submissions 4. The application was canvassed by way of written submissions which the Applicant is dated 18th August, 2025 and the Respondent is dated 16th August, 2025 which the court has read and considered the same. Analysis and Determination 5. Having read through the pleadings and considered the prayers sought, I note HC SUCC. NO.17 OF 2020 RULING - Page 2 of 8 that the Applicant has moved the court under its review jurisdiction on what he claims is a clerical error on the face of the record. 6. The law on review is enshrined under Section 80 of the Civil Procedure Act which provides that:- “Any person who considers himself aggrieved- a) By a decree or order in which an appeal allowed by this Act, but from which no appeal has 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. 7. For an application for review to succeed, a court is required to establish that the Applicant has satisfied the threshold set out under Order 45 of the Civil Procedure Rules which states:- (a) There must be discovery of a 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 or the order was made; or (b) There was a mistake or error apparent on the face of the record; or (c) There were other sufficient reasons; and (d) The application must have been made without undue delay. HC SUCC. NO.17 OF 2020 RULING - Page 3 of 8 8. From this provision, it has become trite that for a court to order for a review in a case, a party must show; a) Discovery of a new and important matter which was not within the knowledge of the Applicant at the time of the Decree or order was passed or made; or, b) An error or mistake apparent on the face of the record; or, c) Sufficient reasons; and, d) The application has been made without undue delay. 9. In the instant case, the Applicant has sought for the ruling delivered on 28th May, 2025 in respect of a Bill of Costs dated 31st January, 2023 to be reviewed on account of two issues being; a) An error in the ruling where the trial court referred to the Estate of Elijah Mwangi Kinyanjui as the Estate of Paul Magu. b) The trial court assuming the Estate to be worth Kshs.500,000.000/= without any formal valuation or documentary basis. c) The trial court arriving at an excessive quantum on taxed costs in the sum of Kshs.8,776,283.70 based on erroneous assumptions, repetitious of claims, inclusion of services not instructed or rendered. 10. On the first issue that is sought to be reviewed, the Applicant has averred that the ruling delivered on 28th May, 2025, on the Bill of Costs, referred to the Estate of Elijah John Mwangi Kinyanjui as the Estate of Paul Magu. HC SUCC. NO.17 OF 2020 RULING - Page 4 of 8 In response, the advocate/Respondent has stated that this error in the ruling is purely a clerical one which does not go to the substance of the decision. I cannot agree more on this as it is a mere mis-description of a party which cannot affect the substance of a decision or invalidate the said ruling which would still remain very clear after the correction. 11.In the court’s view, such error is one that is cured by the court, on either its own motion or on invitation by the parties, invoking the provision under Section 99 of the Civil Procedure Act as follows:- [99]Amendment of judgments, decrees or orders Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties”. 12.And indeed, in the case of Blooming Bliss (K) Limted –vs- Ocean Freight (EA) Limited & Another (Civil Suit No.53 of 2018[2023]KEHC 27348 (KLR); “A slip is not corrected under Order 45. It is not a review but a correction of an arithmetic error. The review goes to the first merit of a case”. 13.In the instant case, the error is merely a mis-description of parties which has not distorted the substance of the decision. HC SUCC. NO.17 OF 2020 RULING - Page 5 of 8 14.The next issue is whether in arriving at a quantum that the Applicant finds is excessive amounts to an error, mistake or new evidence that was not in the Applicant’s knowledge at the time of the ruling of 28th May, 2025. The Applicant contends that the Deputy Registrar assumed the Estate was worth Kshs.500,000,000.00 without any formal valuation or documentary basis. According to the Applicant, the agreed fees for legal services for petitioning for Grant of Letters of Administration was Kshs.279,300.00 as indicated in the fee-note dated 28th July, 2019 and the same was partially paid by Kshs.190,000.00. The balance was due upon Confirmation of the Grant which was issued on 22nd February, 2022 but in December, 2020, the advocate unilaterally sought to introduce a new agreement with a fee structure of the Estate which was formerly rejected by the family. 15.This, the Applicant has argued that the Bill of Costs dated 31st January, 2023 and the subsequent ruling were based on erroneous assumptions, repetition of claims, inclusion of services not instructed or rendered. It is this reason that the Applicant seeks the ruling reviewed to reflect the accurate and lawful determination of fees as it stands to suffer injustice and financial prejudice that would disrupt the administration of the Estate. 16.In response, the Advocate/Respondent has argued that the decision in the HC SUCC. NO.17 OF 2020 RULING - Page 6 of 8 ruling was arrived at upon the Deputy Registrar having a full consideration of the Bill of Costs, submissions by the parties and the Advocates (Remuneration) Order, so that dissatisfaction with the quantum arrived at cannot be a matte for review under Order 45 of the Civil Procedure Rules. 17.According to the Advocate/Respondent, the Applicant ought to have challenged the decision by way of appeal since the same is on the merit of the taxation. It is also the Respondent’s contention that in this application for review, it is a disguised appeal in which it is seeking for stay of execution without demonstrating compliance of the requirements set out under Order 42 Rule 6 of the Civil Procedure Rules. 18.In consideration of the arguments by either counsel for the parties herein, I find that the Applicant’s grievance is about its decision on quantum which it decries was arrived at without any supporting evidence or discussion or evaluation on the available evidence. 19.In this Court’s view, since it has not been disputed that all the evidence or material was availed before the Deputy Registrar, if the same was not discussed, evaluated and or relied upon, or ignored, then the proper remedy for the Applicant would be an appeal and not review. HC SUCC. NO.17 OF 2020 RULING - Page 7 of 8 20.A review is only applied if the error is so obvious that the decree is a nullity. It must be on a clear clerical mistake, or on an error or mistake that has been discovered and it is critical. The issues raised by the Applicant herein required re-arguing of the evidence, reappraisal of the same, drawing inferences and making findings. 21.In view of the foregoing findings, the Notice of Motion application dated 23rd June, 2025 is found lacking merit and is thus dismissed with costs to the Advocate/Respondent. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 13 TH DAY OF FEBRUARY , 2026. D. O. CHEPKWONY JUDGE In the presence of: Mr. Mwangi counsel for Mr. Agimba counsel for the Advocate Mr. Njunge counsel for the Respondent Court Assistant - Martin HC SUCC. NO.17 OF 2020 RULING - Page 8 of 8