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Court of AppealPartially AllowedApplication dated 4th July 2025· [2025] KECA 1689 (KLR)

County Government of Meru v Kaburu t/a Mwirigi Kaburu & Company Advocates (Civil Application E120 of 2025) [2025] KECA 1689 (KLR)

Court of Appeal of Kenya
24 October 2025
3,995 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a party refused leave to appeal by a lower court can still apply for that leave directly to the Court of Appeal within 14 days.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nyeri (M'Inoti, JA) on a notice of motion dated 4th July 2025 by Meru County Government. The county sought extension of time to appeal against the ELC's dismissal (Nzili, J., 26th June 2024) of its reference against taxation of its former advocate's bill at Kshs. 82,176,731, together with leave to appeal, stay of execution and stay of proceedings. The judge confined himself to the extension of time prayer, the other reliefs being reserved to the full Court under rule 55(2). The respondent's preliminary objection argued that, leave to appeal having been refused by the ELC, rule 11(3) of the Advocates (Remuneration) Order ('but not otherwise') barred any resort to the Court of Appeal. The judge rejected this as too strict a reading: rule 11(3) requires leave but does not confine its application to the court below, and rule 41(1)(b)(iii) of the Court of Appeal Rules expressly allows an application for leave to this Court within 14 days of refusal below. He invoked Articles 48, 159(1)(e) and 259(1) of the Constitution, favouring the interpretation that advances access to justice, and distinguished Mbuvi. On the merits, although the roughly four-month delay was inordinate, it was adequately explained by counsel's blunder, the impeachment of the Governor and reconstitution of the legal department, and intervening mandamus and contempt litigation. The intended appeal on manifestly excessive taxation was not frivolous, and public interest in county funds weighed in favour. The application was allowed: extension of time was granted to apply for leave to appeal, to be filed and served within 14 days, with costs to abide the outcome of the intended appeal.

Key legal issues

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01

Whether denial of leave to appeal by the superior court below closes the door to applying for leave in the Court of Appeal

Holding

No. Rule 11(3) requires leave for an appeal from a reference but does not confine the application for leave to the superior court below; rule 41(1)(b)(iii) of the Court of Appeal Rules expressly contemplates an application for leave to this Court within 14 days of refusal below.

Reasoning

The court rejected a strict literal reading of 'but not otherwise' in rule 11(3). Article 48 and 159(1)(e) of the Constitution protect access to justice, and Article 259(1) favours the interpretation that advances it. Further, rule 41(1)(b)(iii) would be rendered utterly superfluous if leave could never be sought in the Court of Appeal after refusal below. The Mbuvi case relied on by the respondent was distinguished as concerning a party who never sought leave at all.

p. 4
02

Whether the delay in seeking leave was inordinate and adequately explained

Holding

The delay of about four months between the ELC's refusal of leave and the present application was inordinate, but was adequately explained by counsel's blunder, political upheavals leading to reconstitution of the county's legal department, and related litigation including mandamus and contempt proceedings.

Reasoning

Applying the Mutiso and Mutiso-line factors, the court held that although an advocate of reasonable competence should have known leave was required, a counsel's blunder is not by itself a sufficient reason to refuse extension; nor is it disqualifying. The impeachment of the former Governor and reorganisation of the legal department were relevant considerations, and the amounts at stake, payable from public funds by a county government, implicated great public interest.

p. 7
03

Whether the intended appeal is arguable

Holding

The intended appeal is not frivolous: whether the taxation of Kshs. 82,176,731 reflects an error of principle as a manifestly excessive award is an issue worthy of full consideration.

Reasoning

Relying on Kenya Airports Authority v Otieno Ragot (Supreme Court), the court noted the object of the Advocates (Remuneration) Order is to ensure reasonable fees, maintain professional standards, and prevent exploitation of parties. Whether the award was manifestly excessive and made in disregard of submissions could only be determined case by case, and was properly for the full Court.

p. 7

Legal principles established

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  • Rule 11(3) of the Advocates (Remuneration) Order does not bar a party whose application for leave to appeal has been dismissed by the superior court below from seeking leave to appeal from the Court of Appeal itself; rule 41(1)(b)(iii) of the Court of Appeal Rules expressly provides for such an application within 14 days of refusal.
  • Parties must not present omnibus applications mixing reliefs reserved for a single judge with those reserved for the full Court; where relief from the full Court is conditional on relief from a single judge, the single judge must be approached first.
  • Extension of time is an equitable remedy available only to a deserving party, who bears the burden of justifying the extension, guided by the Mutiso factors.

Court orders

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  1. 1.Extension of time granted to the applicant to apply before the Court of Appeal for leave to appeal against the ruling of the ELC dated 26th June 2024
  2. 2.The application for leave shall be filed and served within fourteen (14) days from the date of the ruling
  3. 3.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 41
  • Court of Appeal Rulesrule 55(1) and 55(2)
  • Advocates (Remuneration) Orderrule 11
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 159(1)(e)
  • Constitution of KenyaArticle 259(1)

Cases cited (10)

  • Associated Construction Co. (K) Ltd v Kyamu Construction & Engineering Ltd
    [2022] KECA 872 (KLR)
  • Mucwa v Makembo & 3 Others
    [2022] KECA 1006 (KLR)
  • Leo Sila Mutiso v Helen Wangari Mwangi
    [1999] 2 EA 231
  • Lucy Bosire v Kehancha Division Land Disputes Tribunal & 2 Others
    [2013] eKLR
  • Kenya Airports Authority v Otieno Ragot & Company Advocates
    [2024] KESC 44 (KLR)
  • Kenya County Government Workers Union v Mbuvi t/a Katunga Mbuvi & Co. Advocates
    [2023] KECA 525 (KLR)
  • Macharia v Kenya Commercial Bank Ltd & 2 Others
    [2012] KESC 8 (KLR)
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others
    [2014] eKLR
  • Belinda Murai & 9 others v Amos Wainaina
    CA. No. Nai. 9 of 1978
  • Tononoka Steels Ltd v The PTA Bank
    CA No. 295 of 1998
On appeal from
Environment and Land Court at Meru
ELCC No. 027 of 2021 (reference)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), determined by a single judge under rule 55(1)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "County Government of Meru v Kaburu t/a Mwirigi Kaburu & Company Advocates (Civil Application E120 of 2025) [2025] KECA 1689 (KLR)", Case Analysis (2025). Application dated 4th July 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1689/eng@2025-10-24

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