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ELCPartially AllowedRuling on Notice of Motion dated 10th July 2017 (in the matter of the Bill of costs dated 25th September 2014)· [2018] KEELC 4860 (KLR)

Omulele & Tolo Advocates v Mount Holdings Ltd [2018] KEELC 4860 (KLR)

High Court of Kenya
17 January 2018
1,965 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court agreed to review its own earlier decision because it had overlooked one issue, and pushed the advocates' fee dispute back for a fresh hearing.

What this practically means

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Executive summary

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This is a ruling of the High Court at Mombasa (C. Yano, J) delivered on 17th January 2018 on a notice of motion dated 10th July 2017 brought by Ashok L. Doshi under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. The applicant sought review of the ruling and order of 29th May 2017 by which Yano, J dismissed his notice of motion dated 16th August 2016, together with a stay of the hearing of the Bill of costs dated 25th September 2014, a fresh hearing of the dismissed application, and extension of the orders to three related miscellaneous applications (Nos. 3, 4 and 191 of 2015). The advocate respondents opposed, contending the court was functus officio and that there had been inordinate delay. The court framed two issues: whether grounds for review were satisfied and whether the application was brought without unreasonable delay. Comparing the applications dated 12th February 2015 and 16th August 2016, the court found the issue of the registration status of Omulele & Company Advocates had been raised for the first time in the latter and had never been adjudicated, establishing an error apparent on the face of the record. The approximately 40-day delay was reasonably explained by the erstwhile advocates' failure to advise on review. The court held there was sufficient cause to review its ruling, allowed the application in terms of prayers (2), (3), (4), (5) and (7), and made no order as to costs.

Key legal issues

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01

Whether an error apparent on the face of the record existed to warrant review

Holding

Yes - the court did not adjudicate the prayer concerning the registration status of Omulele & Company Advocates raised in the application dated 16th August 2016, so its finding in the ruling of 29th May 2017 was an error apparent on the face of the record

Reasoning

The court compared the applications dated 12th February 2015 and 16th August 2016 and found the registration-status issue was raised for the first time in the latter and was never adjudicated in the ruling sought to be reviewed. The matters raised were therefore issues on which the court made no finding, falling within the scope of review and allowing the parties to articulate their case on grounds not decided.

p. 4
02

Whether the application was filed without unreasonable delay

Holding

Yes - the approximately 40-day delay was reasonably explained by the former advocates' failure to advise on review

Reasoning

The order sought to be reviewed was made on 29th May 2017 and the application filed on 11th July 2017, a delay of about 40 days. The applicant explained that its erstwhile advocates advised only on appeal, and it obtained advice on review only after 30 days had lapsed. The court found this a reasonable and excusable explanation.

p. 4

Legal principles established

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  • An error apparent on the face of the record for review purposes must be self-evident and not require elaborate argument
  • Review will only be allowed on very strong grounds, particularly where its effect is to re-open a case
  • The administration of justice requires that disputes be decided on their merits, and errors or lapses should not necessarily debar a litigant

Court orders

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  1. 1.The application dated 10th July 2017 allowed in terms of prayers (2), (3), (4), (5) and (7) thereof
  2. 2.Stay of the hearing of the Bill of costs dated 25th September 2014 pending determination of the application
  3. 3.The ruling and order made on 29th May 2017 by Hon. Mr. Justice C. Yano dismissing the Notice of motion dated 16th August 2016 reviewed and set aside
  4. 4.The Respondent's Notice of Motion dated 16th August 2016 to be heard afresh
  5. 5.Stay of taxation of the Bill of costs pending hearing of the notice of motion dated 16th August 2016 afresh
  6. 6.The orders to apply to Miscellaneous Applications Nos. 3 of 2015, 4 of 2015 and 191 of 2015
  7. 7.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 rule 1
  • Registration of Business Names Act, cap 499 Laws of Kenyanull

Cases cited (3)

  • National Bank of Kenya Ltd v Ndungu Njau
    (1997) eKLR
  • Evan Bwire v Andrew Nginda
    Civil Appeal No. 103 of 2000, Kisumu, (2000) LLR 8340
  • Branco Arabe Espanol v Bank of Uganda
    [1999] 2 EA 22
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules (review jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omulele & Tolo Advocates v Mount Holdings Ltd [2018] KEELC 4860 (KLR)", Case Analysis (2018). Ruling on Notice of Motion dated 10th July 2017 (in the matter of the Bill of costs dated 25th September 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4860/eng@2018-01-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.