Juma Hardware Limited v Miriam Tungani & 2 Others

e) Costs of this Application be provided for. 2. I have reviewed the Ruling delivered on 24 th March 2026 where the Court held that: “8. The court found that its ruling of 20th June 2025 was final on all issues under the said application, as follows: 'The court declares that it is now functus officio on the validity of the appeal.' The applicants ought to move the higher court if they are not satisfied with the decision. The court found difficulty in understanding the orders sought by the applicant. The order for deposit of the decretal sum held by Gikera & Vadgama Advocates to pay the decretal sum in the appeal judgment of 5th February 2025; deposit balance of the amount held by the advocates with the court related to execution. The deposit was security for performing the judgment. The law firm of Gikera & Vadgama stated that the applicant's former advocates Messers Lemmy Regau Advocates, co-signatories to the account have refused to sign the necessary release forms due to outstanding legal fees owed to them by the applicants. The Court's position is that the money deposited in joint account was not the property of the advocates. It was security for both decree amount and costs. The court in the judgment made the following order:- 'The amounts above to be tabulated and Decree drawn for payment under the decretal sum held by the advocates in joint account within 30 days of judgment.'' The court determined all issues with finality and on non-compliance with court orders, the court ought to be moved accordingly for enforcement. The instant application is held to be bad RULING IN ELRC APPEAL NO.E189 OF 2024 P a g e 2 | 11

page 2 of 11

and an abuse of court process and is dismissed. For non-compliance with the judgment of the court, the respondent does not deserve costs. The application is dismissed with no order as to costs." The application was by the applicant. 3. Further the court on the 21 st July 2025 following an application by Tungani, the Applicant, on behalf of all the appellants ordered as follows‘a. The decretal sum with accrued interests of 28 months be released from the joint account by Gikera & Vadgama advocates in 14 days and paid to the mobile MPESA numbers to be provided by Tungani, the applicant, in the course of the day. b. The costs be held in the joint account as security for costs for Lemmy Regan Advocates. c. The certificate of service be issued in the name of the employer under section 51 of the Employment Act. d. No further application in the matter without the leave of the court. e. Mention on 22nd September 2025 to confirm compliance and close file . '' 9. The applicant further filed the instant application dated 27 th November 2025. I have considered the application and the grounds of opposition. The court finds that it has, in past decisions as stated above, addressed the merits of the appeal and the response with finality, and that it is functus officio on all issues save for costs. Any attempt to address the issues raised, save for the costs settlement, amounts to res RULING IN ELRC APPEAL NO.E189 OF 2024 P a g e 3 | 11

page 3 of 11

judicata and sitting as an appellate court in its decisions. The court was satisfied that the certificates of service issued to the applicants complied with Section 51 of the Employment Act, as they indicated the employer, job held, and period of service. Section 51 of the Employment Act provides the certificate of service to contain the following particulars'(2) A certificate of service issued under subsection ( 1) shall contain(a) the name of the employer and his postal address; (b) the name of the employee; (c) the date when employment of the employee commenced; (d) the nature and usual place of employment of the employee; (e) the date when the employment of the employee ceased; and (f) such other particulars as may be prescribed." The court considered the certificates of service issued to the applicants and found that they met the conditions under section 51 of the Employment Act (page 20 of the application). 10. The court has found merit on the order of costs only. The applicant has sought the following order on costs- 'This Honourable Court be pleased to order the Advocates to forthwith release the decretal sum presently held as security for payment of the legal fees of Lemmy Regau & Co. Advocates, and to remit to the Applicants the excess amount-being Kshs. 32,325.00 as at 19th January 2026 in compliance with this Honourable Court's oral order delivered on 21st July 2025.' RULING IN ELRC APPEAL NO.E189 OF 2024 P a g e 4 | 11

page 4 of 11

The advocate-client's bill of costs was taxed at Kshs. 117,525 on the 7 th November 2025 by Hon. Naiduya (page 40 of the application). The applicant, in paragraphs 9 and 10 of her affidavit in support of the application, justified the order sought on the basis of costs. In response, this was not denied. I allow the prayer and Order that the Respondent's Advocates (Gikera and Vadgama advocates) to forthwith release the monies presently held as security for payment of the legal fees of Lemmy Regau & Co. Advocates to the said law firm, and to remit the excess amount, being Kshs. 32,325.00 as at 19 th January 2026 to the applicants in compliance with this Honourable Court's order of 21st July 2025.The money will be released to Tungani's mobile number on behalf of the applicants within 15 days. This is the court's final decision as far as this dispute is concerned. I make no order as to costs. The file is marked as closed.” 11. It is so ordered.” 3. The Applicant seeks a review of the above order that required their advocates to release the amount of Kshs. 117,525.00 to the law firm of Lemmy Regau & Co. Advocates to the said law firm, and to remit the excess amount, being Kshs. 32,325.00 as at 19th January 2026 to the applicants in compliance with this Honourable Court's order of 21st July 2025, on the premise that the costs of Kshs. 117,525.00 emanated from an AdvocateClient Bill of Costs. The applicant asserts that the law firm cannot be held responsible for Advocate-Client costs. Further, they state that the decretal RULING IN ELRC APPEAL NO.E189 OF 2024 P a g e 5 | 11

page 5 of 11

sum, including interest, was already paid to the Respondents/appellants, and they are therefore undeserving of the excess amount of Kshs. 32,325.00. 4. On review, Rule 74 of the ELRC (Procedural)Rules of 2024 provides ‘74. Review (1)A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling— (a)if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made; (b)on account of some mistake or error apparent on the face of the record; (c)if the judgment or ruling requires clarification; or(d)for any other sufficient reason. (2)An application for review of a decree or order of the Court under subrule (1) shall be made to the judge who passed the decree or made the order sought to be reviewed or to any other judge if that judge is not attached to the Court station. (3)A party seeking review of a decree or order of the Court shall apply to the Court by way of notice of motion supported by an affidavit and shall file a copy of the judgment, decree, ruling or order to be reviewed. (4)The Court shall, upon hearing an application for review, deliver a ruling allowing or dismissing the application. (5)Where an application for review is granted, the Court may review its decision to conform to the findings of the review or quash its decision and order that the suit be heard again. RULING IN ELRC APPEAL NO.E189 OF 2024 P a g e 6 | 11

page 6 of 11

(6)An order made for a review of a decree or order shall not be subject to further review’. 5. A “Mistake or Error apparent on the face of the record” is therefore one of the statutory grounds of review and the basis upon which a review application may be allowed. Indeed, the Appellant/Applicant relies on the same ground, of error apparent on the face of the record, in their application for review of the Ruling delivered on 24th March 2026. 6. In the case of NATIONAL BANK OF KENYA LIMITED vs NDUNGU NJAU [1997] KECA 389 (KLR), the Court of Appeal had the following to say in an application for review:“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. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.” RULING IN ELRC APPEAL NO.E189 OF 2024 P a g e 7 | 11

page 7 of 11

7. The Court of Appeal in Muyodi vs. Industrial and Commercial Development Corporation & Another [2006] 1 EA 243, described an error apparent on the face of the record as follows: “In Nyamogo & Nyamogo -vs- Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. 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. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.” 8. Similarly, in Chandrakhant Joshibhai Patel -v- R [2004] TLR, 218 it had been held that an error stated to be apparent on the face of the record: "...must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established RULING IN ELRC APPEAL NO.E189 OF 2024 P a g e 8 | 11

page 8 of 11

by a long drawn process of reading on points on which may be conceivably be two opinions." 9. Now, is the order for release of the sum of Kshs. 117,525, which was taxed in an Advocate-Client Bill of Costs, an obvious and patent mistake, as at law “costs of the suit” refer only to party to party costs, as alleged by the Appellant/Applicant? 10. It is true that “costs of the suit”, unless otherwise indicated, refer to party-toparty costs. This is pursuant to Rule 52 of the Advocates Remuneration Order Legal Notice 64 OF 1962, which provides that: “The costs awarded by the Court on any matter or application shall be taxed and paid as between party and party unless the Court in its order shall have otherwise directed.” 11. As such, to the extent that the Court ordered that the sum of Kshs. 117,545.00, which was the subject of an Advocate-Client Bill of Costs (as evidenced by the exhibit marked “RO2” annexed to the supporting affidavit sworn on 1st April 2026), be remitted to the Respondents’ former lawyers, it fell into apparent error. 12. Further, I find and hold that the decretal sum having been paid in full to the Respondents, no further amount, including the extra amount of Kshs. 32,325.00 was due to them, as a successful party to the litigation is only entitled to the decretal sum and costs, plus interest, if awarded by the Court. RULING IN ELRC APPEAL NO.E189 OF 2024 P a g e 9 | 11

page 9 of 11

Finding otherwise would amount to unjustly enriching the Respondents. I have seen the exhibit marked “RO1” annexed to the Appellant/Applicant’s supporting affidavit sworn on 1st April 2026 which demonstrates that the Respondents did indeed receive the decretal sum plus interest, as ordered by the Court. 13. As it is evident that the parties to the suit have not reached an agreement on party-to-party costs, and that the same have not been subjected to taxation, I find and hold that the security deposited by the Appellant/Applicant should be held in abeyance until the costs of the suit are ascertained by taxation. The parties are to proceed with the taxation of party-to-party costs within 30 days to bring this matter to conclusion. Disposition 14. 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. 15. In substitution thereof, this Honourable Court is pleased to order that: a) 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 ought to file their bill of costs for taxation before the trial court within 30 days. b) Any liability of the Applicant shall be strictly confined to party and party costs as may be taxed or agreed between the parties; RULING IN ELRC APPEAL NO.E189 OF 2024 P a g e 10 | 11

page 10 of 11

c) 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. d) I make no order as to costs in this application. 16. Mention on 30th November 2026 to confirm taxation and settlement of party-to-party costs between the parties and close this file. 17. It is so ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 25 TH DAY OF SEPTEMBER, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Applicant: Ms Mpano Appellant: Miriam Tungani in person RULING IN ELRC APPEAL NO.E189 OF 2024 P a g e 11 | 11

page 11 of 11