P. M. Wamae & Co. Advocates v Ntoitha M’mithiaru
The bottom line
#Kenya's Court of Appeal refused to send an advocate's fees dispute to the Supreme Court, confirming private disputes don't qualify as matters of general public importance.
What this practically means
#Executive summary
#Key legal issues
#Competency of a certification application brought by Notice of Motion
The application was properly brought by Notice of Motion supported by affidavit
Relying on the Supreme Court's decision in Hermanus Philipus Steyn v Giovanni Gnecchi-Ruscone, the court noted that no rules had been formulated prescribing Originating Motion as the mode for certification applications. Absent such rules, the Court of Appeal's own practice under Rules 42 and 43 applies, under which formal applications are made by motion supported by affidavit. The application was therefore competent.
Whether the same bench may hear the certification application
Yes - no constitutional or statutory restriction prevents the same bench from hearing the certification application
The court examined the Constitution and the Appellate Jurisdiction Act and found no restriction. It drew an analogy with leave applications in the High Court or Magistrate's Court, which are heard by the same judge or magistrate who made the impugned decision. Nothing peculiar precluded the bench from hearing the application.
Whether the intended appeal raised matters of general public importance
No - the dispute was a private advocate/client fees matter that did not transcend the circumstances of the case
Applying the Steyn principles, the court held that the dispute concerned fees payable to the applicant and was peculiar to the case. The law on advocates' fees, taxation and estoppel is settled; the applicant's real complaint was that the court's decision was wrong, which is not a basis for certification. An issue never raised below (the court of record question) could not ground certification either.
Legal principles established
#- Until rules prescribe otherwise, an application for certification for appeal to the Supreme Court must be made by Notice of Motion supported by affidavit, not Originating Motion
- There is no bar to the same bench of the Court of Appeal that decided the underlying appeal hearing the application for certification to the Supreme Court
- The burden lies on the applicant for certification to demonstrate that the issues constitute matters of general public importance transcending the particular case
- Determination of whether the Court of Appeal's decision was right or wrong is not a basis for granting leave to appeal to the Supreme Court
Court orders
#- 1.The application for leave to appeal to the Supreme Court is dismissed with costs to the respondent
- On appeal from
- Court of Appeal of Kenya at Nyeri
- Civil Appeal No. 17 of 2013
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution - application for certification/leave to appeal to the Supreme Court on a matter of general public importance
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "P. M. Wamae & Co. Advocates v Ntoitha M’mithiaru", Case Analysis (2014). Civil Application No. Sup. 4 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/221/eng@2014-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.