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ELCDismissed· [2025] KEELC 5994 (KLR)

Ngure Mbugua & Co Advocates v Mugo (Environment and Land Miscellaneous Application E096 of 2023) [2025] KEELC 5994 (KLR)

High Court of Kenya (judge referred to as 'JUDGE'; court not expressly named in the excerpt)
10 September 2025
MCMbogo C.G.
2,040 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling determines a notice of motion dated 15th October 2024 by the client/applicant seeking review and/or variation of a ruling delivered on 3rd October 2024 by Oguttu Mboya J, in which the court had set aside a certificate of taxation on the advocate/client bill of costs. The applicant advanced two grounds: first, an alleged error apparent on the face of the record in that the court failed to appreciate that Section 55 of the Law of Succession Act prohibits distribution of capital before confirmation of grant, rendering the underlying sale transaction void ab initio; and secondly, that the ruling misdescribed the property as LR No. 209/4917/4 instead of LR No. 2951/72. The advocate/respondent opposed, contending the application re-argued matters already considered, disclosed no new material, and that any incorrect property reference should have been corrected rather than pursued through review. Considering Section 80 of the Civil Procedure Act and Order 45 Rule 1, and applying the authorities on error apparent on the face of the record, the court found no such error. The Section 55 point had never been raised in the pleadings or prior applications and was a new issue introduced at review stage; a discrepancy in a property reference was a matter for correction, not review. The application was dismissed with each party bearing its own costs.

Key legal issues

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Whether the ruling of 3rd October 2024 contained an error apparent on the face of the record warranting review

Holding

No error apparent on the face of the record was established; the alleged Section 55 Law of Succession Act point and the property number discrepancy were either new issues or matters requiring correction rather than review

Reasoning

The court examined the pleadings, the replying affidavit of 25th September 2023, the written submissions, and the chamber summons of 20th March 2024, and found the applicant had never raised the validity of the sale transaction under Section 55 of the Law of Succession Act in those proceedings. Citing Muyodi v ICDC, the court distinguished a mere erroneous decision from an error apparent on the face of the record, holding that where a possible view was adopted, review does not lie.

p. 4

Legal principles established

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  • Review proceedings are not an appeal; review must be confined to error apparent on the face of the record and cannot involve reappraisal of evidence or how the law was applied
  • An error apparent on the face of the record must be one that stares one in the face with no reasonable two opinions; a merely erroneous or possible view is not a ground for review
  • A party cannot introduce, at review stage, grounds that were never raised in the proceedings culminating in the order sought to be reviewed

Court orders

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  1. 1.The notice of motion dated 15th October 2024 is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 45 Rule 1
  • Law of Succession ActSection 55

Cases cited (6)

  • Chandrakhant Joshibhai Patel v R
    [2004] TLR, 218
  • Republic v Advocates Disciplinary Tribunal Ex-parte Apollo Mboya
    [2019] eKLR
  • Samba t/a Samba & Co. Advocates v Mengich
    (Miscellaneous Application 7 of 2022) [2023] KEHC 26997 (KLR) (20 December 2023) (Ruling)
  • Vishva Builders Limited v Moi University
    (Civil Case 51 of 1999) [2024] KEHC 1891 (KLR) (1 March 2024) (Ruling)
  • Muyodi v Industrial and Commercial Development Corporation & Another
    [2006] 1 EA 243
  • Nyamogo & Nyamogo v Kogo
    (2001) EA 174
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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Cite this brief

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Cite this brief

Caselaw, "Ngure Mbugua & Co Advocates v Mugo (Environment and Land Miscellaneous Application E096 of 2023) [2025] KEELC 5994 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5994/eng@2025-09-10

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