Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. Sup. 4 of 2014· [2014] KECA 221 (KLR)

P. M. Wamae & Co. Advocates v Ntoitha M’mithiaru

Court of Appeal of Kenya
25 November 2014
2,782 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

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

#
The applicants, P. M. Wamae & Co. Advocates, sought certification/leave to appeal to the Supreme Court under Article 163(4)(b) of the Constitution from the Court of Appeal's judgment of 18th June 2014 (Civil Appeal No. 17 of 2013), which allowed the respondent's appeal, set aside taxed advocate/client costs of Kshs. 3,236,343.68, held the advocates estopped by their own letter of 20th March 2003 from charging more than the concessionary Kshs. 400,000/=, and ordered re-taxation before another taxing master. The applicants contended the intended appeal raised issues of general public importance: whether an advocate's fee on advocate/client basis can rest on an unexecuted fee agreement under Section 45(1)(b) of the Advocates Act, whether common law estoppel applies retrospectively, when common law overrides written law, and whether the Court of Appeal is a court of record. The court first held the application competent as a Notice of Motion, applying the Supreme Court's decision in Hermanus Philipus Steyn v Giovanni Gnecchi-Ruscone, since no rules prescribe Originating Motion. It also held there is no restriction on the same bench hearing the certification application. On the merits, applying the Steyn principles and Malcolm Bell v Daniel Toroitich arap Moi, the court held the applicants bore the onus of showing the issues transcend the particular case and bear on the public interest. The dispute was a private fees matter, the law on advocates' fees, taxation and estoppel being settled, and the 'court of record' issue had never been judicially determined below. The application was dismissed with costs to the respondent.

Key legal issues

#
01

Competency of a certification application brought by Notice of Motion

Holding

The application was properly brought by Notice of Motion supported by affidavit

Reasoning

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.

p. 3
02

Whether the same bench may hear the certification application

Holding

Yes - no constitutional or statutory restriction prevents the same bench from hearing the certification application

Reasoning

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.

p. 3
03

Whether the intended appeal raised matters of general public importance

Holding

No - the dispute was a private advocate/client fees matter that did not transcend the circumstances of the case

Reasoning

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.

p. 5

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. 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.