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Court of AppealDismissedCivil Application (Certification and Stay) arising from Civil Appeal No. E474 of 2021

Ecobank Kenya Limited v Macharia Mwangi & Njeru Advocates (Civil Application SUP NO. E003 of 2024) [2024] KECA 1412 (KLR)

Court of Appeal of Kenya
11 October 2024
3,680 words in judgment
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The bottom line

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The Court of Appeal refused Hashi Energy's bid to appeal its Kshs. 43.7 million legal fees dispute to the Supreme Court, ruling the matter only affects the parties.

What this practically means

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Executive summary

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By a Notice of Motion dated January 11, 2024, the applicant sought certification and leave to appeal to the Supreme Court against the Court of Appeal's decision of December 8, 2023 in Civil Appeal No. E474 of 2021 (M'Inoti, Omondi & Ngenye-Macharia JJA), together with a stay of execution of that judgment. The underlying dispute concerned advocates' remuneration: the taxing master had awarded instruction fees of Kshs. 43,688,883.40 computed at 1.5% of a Kshs. 2.9 billion debt under paragraph 7, Part II, Schedule 5 of the Advocates (Remuneration) (Amendment) Order. The High Court (Majanja J) had held that paragraph 7 required a general agreement between advocate and client; the Court of Appeal, in a majority decision with M'Inoti JA dissenting, reversed, holding the word 'may' in paragraph 7 was discretionary, not mandatory, and reinstated the taxing master's award. In this certification application, the applicant argued that the interpretation of paragraph 7 raised matters of general public importance affecting clients and advocates countrywide. The Court applied Sum Model Industries, Mitubell Welfare Society, Hermanus Phillipus Steyn and KEFHAU, reiterating that certification requires issues transcending the parties' dispute with substantial, broad-based public-interest consequences. It found the applicant merely dissatisfied with the amount awarded and the Court's findings, that the facts were party-specific, and that the apprehended abuse of paragraph 7 was speculative. The Court dismissed the application in its entirety, awarding costs to the respondent, and did not reach the question of its jurisdiction to stay its own orders.

Key legal issues

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01

Whether the application met the test for certification of a matter of general public importance under Article 163(4)(b)

Holding

It did not. The applicant's grievance was essentially with the amount awarded by the taxing master and with the correctness of the Court's interpretation; the facts were specific to the parties and the claimed consequences were speculative.

Reasoning

Applying Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone and the principles in Kenya Plantation and Agricultural Workers Union, the Court held that the test is not whether it would reach a different conclusion but whether the questions transcend the parties' dispute. Every interpretation of a statute or rule affects the parties and those who rely on it; that alone cannot create general public importance. The claim that paragraph 7 would be open to abuse was speculative.

p. 7
02

The proper forum and threshold for certification applications

Holding

Certification may be sought from the Supreme Court or the Court of Appeal, but it is good practice to originate the application in the Court of Appeal, which is better placed to assess whether a matter of general public importance is involved.

Reasoning

The Court relied on Sum Model Industries Ltd v ICDC, where the Supreme Court held that the Court of Appeal, being seized of the matter and having assessed the facts and legal arguments, should be afforded the first opportunity to certify; a dissatisfied applicant may seek review under Article 163(5). The Court also restated the Mitubell Welfare Society/Waller LJ criteria and the seven principles in KEFHAU.

p. 5

Legal principles established

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  • Mere dissatisfaction with a Court of Appeal decision, or the fact that a court has interpreted a section or rule in a certain way, does not establish a matter of general public importance for certification purposes
  • A party seeking certification must demonstrate specific elements of real public interest and concern; the impact of the decision must be substantial, broad-based and transcending the litigation interests of the parties

Court orders

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  1. 1.The Notice of Motion dated January 11, 2024 seeking certification and leave to appeal to the Supreme Court is dismissed in its entirety
  2. 2.Costs of the application awarded to the respondent
On appeal from
High Court of Kenya (decision appealed from was the Court of Appeal itself, which had reversed the High Court)
Civil Appeal No. E474 of 2021 (underlying High Court Miscellaneous Application No. E298 of 2019)
Jurisdiction invoked
Articles 163(4)(b) and 163(5) of the Constitution of Kenya; sections 3A and 3B of the Appellate Jurisdiction Act; section 15 of the Supreme Court Act; rule 33 of the Supreme Court Rules, 2020; rules 1(2), 5(2)(b), 41, 42 and 43 of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ecobank Kenya Limited v Macharia Mwangi & Njeru Advocates (Civil Application SUP NO. E003 of 2024) [2024] KECA 1412 (KLR)", Case Analysis (2024). Civil Application (Certification and Stay) arising from Civil Appeal No. E474 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1412/eng@2024-10-11

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