Central Bank of Kenya v Makhecha & Company Advocates
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
#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
- 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)
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", 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.