Juma Hardware Limited v Miriam Tungani & 2 Others
The bottom line
#A Kenyan court confirmed that 'costs of the suit' means only party-and-party costs, so an employer cannot be forced to pay its opponent's advocate-client legal fees.
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 order at paragraph 10 of the Ruling delivered on 24th March 2026 directing release of the sum taxed in the Advocate-Client Bill of Costs to the respondents' former advocates was an obvious and patent mistake, i.e. an error apparent on the face of the record warranting review under Rule 74
- 2.Whether 'costs of the suit' refer only to party-and-party costs unless the court otherwise directs
- 3.Whether any further amount, including the excess of Kshs. 32,325.00, remained payable to the respondents after payment in full of the decretal sum plus interest
- 4.Whether the monies held in the joint account as security for costs should remain preserved pending taxation of party-and-party costs
Key legal issues
#Whether the direction in paragraph 10 of the ruling of 24 March 2026 to remit the sum taxed in the Advocate-Client Bill of Costs to the respondents' former advocates was an error apparent on the face of the record justifying review
Yes. Costs of the suit mean party-and-party costs unless the court otherwise directs; ordering remittance of the advocate-client taxed sum to the respondents' former lawyers fell into apparent error and was set aside on review under Rule 74.
The court set out Rule 74 of the ELRC (Procedure) Rules, 2024 and the test for error apparent on the face of the record from National Bank of Kenya v Ndungu Njau, Muyodi v ICDC and Chandrakhant Joshibhai Patel v R: the error must be obvious, patent and require no elaborate argument. Applying Rule 52 of the Advocates Remuneration Order, it held costs of a suit are party-and-party absent contrary direction, so the earlier order releasing the advocate-client taxed amount fell into apparent error on the face of the record and warranted review.
Whether 'costs of the suit' refer only to party-and-party costs
Yes. Pursuant to Rule 52 of the Advocates Remuneration Order (Legal Notice 64 of 1962), costs awarded by the court are taxed and paid as between party and party unless the court in its order otherwise directs.
The court answered the question it framed — whether releasing the sum taxed in an advocate-client bill was an obvious and patent mistake because costs of the suit mean only party-and-party costs — in the affirmative. It anchored the answer in Rule 52 of the Advocates Remuneration Order, which makes party-and-party taxation the default position absent an express contrary direction in the court's order, reinforcing the finding of apparent error in the prior order.
Whether the respondents remained entitled to the excess of Kshs. 32,325.00 after receiving the decretal sum in full
No. The decretal sum plus interest having been paid in full, no further amount, including the excess, was due; a successful party is entitled only to the decretal sum and costs plus any interest awarded, and anything more would unjustly enrich the respondents.
The court relied on exhibit RO1 to the applicant's supporting affidavit sworn on 1 April 2026 demonstrating that the respondents received the decretal sum plus interest as ordered by the court. It reasoned that a successful party's entitlement is confined to the decretal sum, costs and any awarded interest. Ordering payment of the surplus of Kshs. 32,325.00 beyond that would amount to unjust enrichment of respondents already fully paid under the judgment of 5 February 2025, and the response was not denied.
Whether the security held in the joint account should be preserved pending taxation of party-and-party costs
Yes. The parties had not agreed on party-to-party costs and none had been taxed, so the security stands held in abeyance until the costs are ascertained by taxation, with the bill to be filed within 30 days.
Because the parties had not reached agreement on party-to-party costs and the same had not been subjected to taxation, the court preserved the deposit as security and directed the parties to proceed with taxation within 30 days to bring the matter to conclusion. This substituted the prior directive that channelled the fund towards the respondents' advocate-client fees and restored the account's purpose as security pending ascertainment of costs, with mention set for 30 November 2026.
Legal principles established
#- Costs awarded by a court are, unless the court otherwise directs in its order, taxed and paid as between party and party; a sum taxed in an Advocate-Client Bill of Costs cannot be treated as 'costs of the suit' payable by the opposing party.
- A successful party is entitled only to the decretal sum and costs, plus interest if awarded; payment of any surplus beyond that amounts to unjust enrichment.
- Review on the ground of error apparent on the face of the record requires an obvious and patent mistake that needs no elaborate argument and on which two opinions are not reasonably possible.
- Where party-and-party costs have neither been agreed nor taxed, security deposited for costs must be held in abeyance until the costs are ascertained by taxation.
Court orders
#- 1.Review, variation and setting aside of the orders made at paragraph 10 of the Ruling delivered on 24th March 2026
- 2.The monies held in the joint account as security for costs shall remain preserved pending the taxation of party and party costs arising from the Judgment delivered on 5th February 2025; the judgment holder to file their bill of costs for taxation before the trial court within 30 days
- 3.Any liability of the Applicant shall be strictly confined to party and party costs as may be taxed or agreed between the parties
- 4.There shall be no order requiring or permitting the Applicant to satisfy advocate-client costs, being costs as between the Respondents and their former advocates
- 5.No order as to costs in the application
- 6.Mention on 30th November 2026 to confirm taxation and settlement of party-to-party costs between the parties and close the file
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024 (application for review of a decree or order)
Relief refused
#Costs of the review application (the applicant had sought that 'Costs of this Application be provided for')
The court made no order as to costs on the application
Costs
No order as to costs in this application.
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.
This Honourable Court is pleased to review, vary and/or set aside the orders made at paragraph 10 of the Ruling delivered on 24th March 2026.
The monies held in the joint account as security for costs shall remain preserved pending the taxation of party and party costs arising from the Judgment delivered on 5th February 2025
Any liability of the Applicant shall be strictly confined to party and party costs as may be taxed or agreed between the parties
There shall be no order requiring or permitting the Applicant to satisfy advocate-client costs, being costs as between the Respondents and their former advocates.
It is true that “costs of the suit”, unless otherwise indicated, refer to party-to-party costs. This is pursuant to Rule 52 of the Advocates Remuneration Order Legal Notice 64 OF 1962
A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established.
An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record.
I make no order as to costs in this application.
Issues in the judgment
#Appearance list styles Miriam Tungani as 'Appellant' although the cause title names her 1st Respondent and Juma Hardware Limited as Appellant.
The taxed advocate-client sum is stated as Kshs. 117,525 in the prior ruling but as Kshs. 117,545 in the error finding.
Submissions conflate party designations, describing the decretal payment as made to 'Respondents/appellants'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juma Hardware Limited v Miriam Tungani & 2 Others", Case Analysis (2026). Appeal No. E189 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2708/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.