Central Bank of Kenya v Makhecha & Company Advocates [2019] KECA 338 (KLR)
The bottom line
#The Court of Appeal refused the Central Bank's attempt to reopen a costs judgment, confirming that Kenya's 'slip rule' only fixes typing or arithmetic mistakes, not substantive decisions.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application engages the slip rule under rule 35(1) of the Court of Appeal Rules for correction of clerical or arithmetic errors
- 2.Whether the court should review or reverse its own judgment of 8th December 2017 and remit the bill of costs to the Taxing Master
- 3.Whether the authorities cited on re-taxation following an error of principle by a taxing master advance the applicant's cause
Key legal issues
#Whether the slip rule under rule 35(1) of the Court of Appeal Rules could be invoked to reverse the court's earlier judgment
The slip rule is a narrow tidying-up mechanism for clerical and arithmetic errors arising from accidental slips or omissions; it does not extend to substantive decisional matters or permit the court to reverse itself.
The court found that the applicant's real complaint was that the earlier judgment prejudiced its right to a hearing and sought a reversal and substitution with an order for taxation. That is a substantive grievance, not an editorial correction. The motion also failed to cite rule 35(1), the actually relevant provision, instead invoking Rules 42 and 47 and Articles 47 and 159 of the Constitution, which the court found irrelevant.
Entitlement to costs under Schedule VIB of the Advocates Remuneration Order where party and party costs were agreed
Where party and party costs have been taxed and agreed and there is no agreement as to fees, the advocate is entitled as of right to the party and party costs plus one half; the taxing officer has no discretion, the computation being a matter of arithmetic.
The bill was lodged under Schedule VIB, being fees based on party and party costs as consented to and paid. Since there was no agreement as to fees between advocate and client, the taxing master was bereft of discretion; the respondent merely added half of the agreed party and party costs plus filing fees. That is why the court had allowed the bill as drawn, and the authorities on re-taxation after an error of principle did not apply.
Finality of Court of Appeal decisions and the practice of seeking review after losing
The creeping practice of litigants who have lost in the Court of Appeal bringing applications for review or reconsideration of its judgments is to be discouraged; such judgments may be re-opened only in the most exceptional cases.
The court noted that an application for review before it invites the court to sit on appeal against its own judgment. Invoking Standard Chartered Financial Services Ltd v Manchester Outfitters, it held finality is necessary and the present application was no exceptional case justifying re-opening.
Legal principles established
#- Correction of errors under rule 35(1) is confined to clerical or arithmetic mistakes arising from accidental slips or omissions and cannot be used to revisit substantive decisional matters.
- Where party and party costs have been taxed and agreed, and there is no agreement as to fees between client and advocate, the advocate is entitled as of right, under Schedule VIB of the Advocates Remuneration Order, to the party and party costs plus one half, with no discretion for the taxing officer.
- Judgments of the Court of Appeal are final and may be re-opened only in the most exceptional cases; applications for review or reconsideration by losing litigants are to be discouraged.
Court orders
#- 1.The application dated 1st February 2018 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Section 3(2) of the Court of Appeal Act, Rules 42, 47 and 35(1) of the Court of Appeal Rules, Article 159(2) of the Constitution of Kenya (as invoked by the applicant)
Relief refused
#Correction of the judgment of 8th December 2017 and remittal of the Bill of Costs dated 15th May 2012 to the Taxing Master for taxation under the Advocates Remuneration Order
The application does not disclose any clerical or arithmetic error or accidental slip or omission; it seeks a substantive reversal of the court's own decision, which the slip rule does not permit
Costs
The application is dismissed with costs (costs to the respondent)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A clerical or arithmetic mistake in any judgment of the court or any error arising therein from an accidental slip or omission may at any time, whether before or after the judgment has been embodied in an order, be corrected by the Court, either of its own motion or the application of any interested person so as to give effect to what the intention of the court was when judgment was given.
It is quite obvious to us that what this application seeks is not an engagement of the slip rule.
There has to be a necessary finality to the decisions of this Court, which can be re-opened before it only in the most exceptional of cases and only when certain conditions obtain.
The upshot is that we find no merit in this application and the same is dismissed with costs.
Issues in the judgment
#The ruling describes the application as one arising from the court's judgment of 8th December 2017 in HC. MISC. CIVIL APPLICATION NO. 296 OF 2012, yet the motion is filed under the same Civil Appeal (Application) No. 48 of 2014 heading; the relationship between the appeal number and the miscellaneous application number is not explained in the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Central Bank of Kenya v Makhecha & Company Advocates [2019] KECA 338 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 48 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/338/eng@2019-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.