Bell Estate Agency Limited v Owino Kojo & Company Advocates

3. As stated, the Applicant’s application is anchored on the ground of discovery of new, important and material evidence which the Court of Appeal in Rose Kaiza v Angelo Mpanju Kaiza [2009] KECA 422 (KLR) explained as follows: The motion before the superior court was based on the discovery of new facts. However, it is not every new fact that will qualify for interference with the judgment or decree sought to be reviewed. In the words of the rule itself, it is “………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…….” The construction and application of that provision has been discussed in many previous decisions but we shall take it from the commentary by Mulla on similar provisions of the Indian Civil Procedure Code, 15th Edition at page 2726, thus: “Applications on this ground must be treated with great caution and as required by r 4(2) (b) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the Court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.” 4. The discovery by the Applicant is that the Respondent’s principal, Victor Brian Owino Kojo, was a full-time public officer at the Commission on Administrative Justice (CAJ) at the time he filed and prosecuted the Advocate‑Client Bill of Costs, which is prohibited by law. The CAJ letter dated 30th October 2025 annexed in the Applicant’s deposition is obviously new as it was obtained over three years after the Taxation Ruling. I find that it is important because it goes to the legal capacity of the advocate to file the Bill of Costs and if true, it strikes at the jurisdiction of the Taxing Master and the validity of the entire taxation process. 5. As noted by the Applicant, it is interesting and curious that the Respondent has not filed any affidavit by the said Owino Kojo denying the contents of that letter and that under Choitram v Nazari [1984] KECA 47, uncontroverted allegations may be deemed admitted. As stated and submitted by the Applicant, it conducted an LSK portal search before engaging the Respondent, which showed the firm as duly registered with no indication of public office. I agree that there is no standard due diligence that would uncover an advocate’s undisclosed employment as a public officer and the Applicant swears it did not know of Mr. Kojo’s CAJ employment until after the taxation. The Applicant rightly cites the decision of the Court (Musyoka J.,) in Gs Law Llp Advocates v Wilbur Khasilwa Ottichilo [2021] KEHC 1274 (KLR) where the court struck out a Bill filed by a public officer, holding that such practice violates Chapter 6 of the Constitution, the Leadership and Integrity Act, and the Public Officer Ethics Act. The Taxing Master, had she known this, could not have lawfully proceeded with taxation as the entire process would be a nullity. I also note that the Applicant filed this application on 19th November 2025, soon after receiving the CAJ confirmation letter of 30th October 2025 and I find this to be timely. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8665/eng@2026-06-19 2

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6. I also find that the responses by the Respondent’s deponents do not properly answer the application. Bilhah Ikani Omulama who says she is a partner in the firm, is now confirmed through a letter dated 6th March 2026 from Kenya National Commission on Human Rights (KNCHR), to be a public officer at the said institution. She therefore lacks capacity to practice privately or to swear an affidavit in opposition. Philip Sheunda Ochieng says he is a third‑party financial advisor and I agree that his affidavit is largely hearsay and of questionable standing under Order 51 Rule 14 of the Rules which provides that only the Respondent, in this case, Mr. Owino Kojo, may file a replying affidavit. Because he has not, the application is unopposed and the facts alleged stand admitted. The argument that Ms. Omulama is a partner in the firm and that Mr. Kojo was a co-partner is negated by the CR 12 on record which shows that the firm is a sole proprietorship owned by Mr. Kojo and being that Ms. Omulama herself is now confirmed to be a public officer, if I am to assume that she is a partner, then it follows that the firm was essentially operated by public officers which further nullifies the Bill and subsequent proceedings. Conclusion and Disposition 7. In the foregoing, I allow the Applicant’s application dated 19th November 2025 and order that the Advocate–Client Bill of Costs dated 11th May 2022 and all consequential proceedings be struck out and the Taxation Ruling dated 27th October 2022 & the Certificate of Costs dated 1st November 2022 be vacated forthwith. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF JUNE 2026 ............................................................................ J.W.W. MONGARE JUDGE In The Presence Of Mr. Jerop holding brief forMr. Wachira for the Applicant Mr. Wasonga for the Respondent Amos- Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8665/eng@2026-06-19 3

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