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Supreme CourtDismissedApplication 11 (E020) of 2022

Kamundi & another (Practising as Kinyua Muyaa & Co Advocates) v Kenya Ports Authority Pension Scheme & 8 others

Supreme Court of Kenya
21 April 2023
1,153 words in judgment
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The bottom line

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Supreme Court dismisses bid to appeal fee dispute, ruling issues not of general public importance.

What this practically means

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Two advocates tried to appeal a fee dispute to the Supreme Court, arguing it raised issues of general public importance. The Supreme Court disagreed, saying the issues were either already settled or were just disagreements between the parties. The court also found no evidence that judges had failed to read the case files. The application was dismissed, and each side paid its own costs.

Executive summary

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This was an application for review of the Court of Appeal's decision declining to certify thirteen proposed questions as matters of general public importance under Article 163(4)(b) of the Constitution. The applicants, advocates acting in person, sought to appeal a taxation dispute concerning their advocate-client bill of costs, specifically the value of the subject matter. The Supreme Court dismissed the application, upholding the Court of Appeal's ruling. The court found that the allegations of judges not reading the record or each other's drafts were speculative and that there was no contradiction in the Court of Appeal's judgments. Issues regarding the absence of a notice of appeal, equal protection, and res judicata were already settled. The court agreed with the Court of Appeal that the discordance in determining advocates' fees after certification should first be resolved by an expanded bench of the Court of Appeal. The core taxation dispute was a contest between parties and not a matter of general public importance. The court ordered each party to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal may deliver a judgment without reading the record of appeal and whether judges did not read each other's draft judgments
  2. 2.Whether the Court of Appeal delivered three separate contradicting judgments
  3. 3.Whether the Court of Appeal can hear an appeal in the absence of a notice of appeal; whether parties have a right to equal protection, enjoyment and benefit of the law; and the doctrine of res judicata
  4. 4.Whether the manner in which advocates' fees are to be determined after a Certificate of Costs is given in a Party & Party Bill of Costs is a matter of general public importance
  5. 5.Whether the taxation of the advocate-client bill of costs and the value of the subject matter is a matter of general public importance

Key legal issues

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01

Whether the Court of Appeal's decision to decline certification of proposed questions as matters of general public importance should be reviewed and set aside.

Holding

The Supreme Court upheld the Court of Appeal's decision, finding that the proposed issues did not meet the threshold for general public importance.

Reasoning

The court examined each proposed issue. It found that allegations of judges not reading the record or each other's drafts were speculative. It found no contradiction in the Court of Appeal's judgments. It noted that issues like the absence of a notice of appeal, equal protection, and res judicata were already settled. The court agreed with the Court of Appeal that the discordance in determining advocates' fees after certification was best resolved first by an expanded bench of the Court of Appeal. Finally, the taxation dispute was a contest between parties, not a matter of general public importance.

Legal principles established

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  • A mere fear of injustice is not enough to get a case to the Supreme Court under Article 163(4)(b).
  • Issues already settled by the Supreme Court or lower courts cannot be certified as matters of general public importance.
  • Allegations that judges did not read the record must be supported by evidence, not speculation.
  • A dispute over advocates' fees between two law firms is a private contest, not a matter of general public importance.
  • Unresolved legal questions on procedure should first be addressed by an expanded bench of the Court of Appeal.

Court orders

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  1. 1.The originating motion dated November 3, 2022 be and is hereby dismissed
  2. 2.Each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal
Jurisdiction invoked
Article 163(4)(b) of the Constitution

Relief refused

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Review and setting aside of the ruling of the Court of Appeal delivered on October 21, 2022 declining to certify the questions raised as matters of general public importance

The court found that the issues raised did not meet the threshold for certification as matters of general public importance

Costs

each party to bear its own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A mere apprehension of a miscarriage of justice, is a matter most apt for resolution in the lower superior courts, and is not a proper basis for granting certification for an appeal to the Supreme Court.
p. 5 Standard for certification of general public importance
We are satisfied that the Court of Appeal correctly interrogated the applicants' proposed issues under the threshold set by this court in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (supra) in arriving at its decision.
p. 5 Upholding the Court of Appeal's certification decision

Key timeline

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Before November 2022
Court of Appeal declines to certify proposed questions as matters of general public importance.
2022-11-03
Applicants file originating motion for review of the Court of Appeal's decision at the Supreme Court.
2024
Supreme Court dismisses the application, upholding the Court of Appeal's ruling.

Practical implications

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For lawyers

Limit Supreme Court certification bids

When seeking certification for appeal to the Supreme Court, focus on genuinely novel constitutional or jurisprudential issues. Avoid re-litigating settled points like res judicata or equal protection. Speculative allegations about judicial conduct will not meet the threshold. Consider first seeking an expanded bench of the Court of Appeal for unresolved procedural questions.

For businesses

Fee disputes stay in lower courts

Businesses involved in advocate-client fee disputes should expect finality at the Court of Appeal level. The Supreme Court will not entertain such disputes unless they raise a clear matter of general public importance beyond the parties' interests. Plan your litigation strategy accordingly and budget for costs at the Court of Appeal as the likely end point.

For individuals

High bar for Supreme Court appeals

If you are an individual litigant, understand that the Supreme Court only hears cases that affect the public broadly, not just your personal dispute. Even if you feel the lower court was wrong, you must show the issue is of general public importance. Mere allegations of unfairness or procedural errors are not enough.

Frequently asked questions

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What does 'general public importance' mean for Supreme Court appeals in Kenya?+

It means the case must raise a legal or constitutional issue that affects the public at large, not just the parties. The Supreme Court has set strict criteria: the issue must be novel, unresolved, and of broad significance. Private fee disputes between advocates do not qualify.

Can I appeal a Court of Appeal decision on advocate fees to the Supreme Court in Kenya?+

Only if the Court of Appeal certifies that the case involves a matter of general public importance. If certification is denied, you can apply for review to the Supreme Court, but the court will only overturn the denial if the Court of Appeal clearly misapplied the law. In this case, the Supreme Court upheld the denial.

What happens if the Supreme Court refuses to hear my appeal in Kenya?+

The Court of Appeal's decision becomes final. You cannot appeal further. Each party bears its own costs unless the court orders otherwise. You must then comply with the Court of Appeal's judgment, including any orders on costs or fees.

How do I prove that judges did not read the record in a Kenyan appeal?+

You must provide concrete evidence, such as contradictions in the judgment that could only arise from not reading the record. Speculation or mere suspicion is not enough. The Supreme Court in this case dismissed such allegations as speculative and insufficient to warrant certification.

Cite this brief

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Cite this brief

Caselaw, "Kamundi & another (Practising as Kinyua Muyaa & Co Advocates) v Kenya Ports Authority Pension Scheme & 8 others", Case Analysis (2023). Application 11 (E020) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/29/eng@2023-04-21

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