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ELRCAllowedMiscellaneous Application E25 of 2025

JA Guserwa & Company Advocates v Molonket

Employment and Labour Relations Court of Kenya at Nairobi
25 September 2026
1,077 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a law firm to appeal an order to refund a client, but only if it first deposits the disputed money in a joint account.

What this practically means

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Executive summary

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The Advocate filed a miscellaneous application dated 8th December 2025 seeking leave under rule 11(3) of the Advocates Remuneration Order to appeal against a ruling of 28th November 2025 which directed her to refund the Client Ksh. 240,272.51, together with a stay of execution pending the intended appeal, with costs in the cause. The Client opposed the motion through a replying affidavit, contending that the proposed appeal had no prospects of success and was intended only to delay conclusion of the dispute, though she offered, if leave were granted, to have the disputed sum deposited in a joint interest earning account in the names of the parties' advocates. The court noted that under regulation 11(3) an appeal does not lie against an order from a reference except with leave, and that the Advocate had properly sought it. Applying Chaudhri & Associates v Robert Bosch East Africa and Majanja Luseno & Co. Advocates v Patani, the court held that the applicant need only show the proposed appeal is not irredeemably hopeless, without the court sitting on appeal on its own decision or placing unreasonable barriers in the applicant's way. Although the court did not agree with the Advocate's position on the contested issues, that alone did not render the appeal hopeless; she was entitled to a second opinion. Leave to appeal was granted, and stay of execution was granted on condition that Ksh. 240,272.51 be deposited in an interest earning account in the joint names of the advocates on record within 21 days. Costs of the application were granted to the Client. The ruling was delivered online pursuant to the Chief Justice's directions of 12th July 2022, with the parties' consent.

Questions the Court framed

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

  1. 1.Whether the Advocate should be granted leave under rule 11(3) of the Advocates Remuneration Order to appeal against the ruling dated 28th November 2025
  2. 2.Whether stay of execution of the ruling should be granted pending the intended appeal
  3. 3.Who should bear the costs of the application

Key legal issues

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01

Test for grant of leave to appeal against an order arising from a taxing officer's reference

Holding

Leave was granted because the proposed appeal was not irredeemably hopeless; the applicant is entitled to a second opinion.

Reasoning

The court applied its own decision in Chaudhri & Associates and Majanja Luseno, holding that the applicant need only demonstrate a credible appeal with a realistic chance of success. The court must not sit on appeal on its own decision nor place unreasonable barriers before the applicant. Although the court disagreed with the Advocate's position, that alone did not render the appeal hopeless, so leave was granted.

p. 2
02

Stay of execution pending appeal from a reference

Holding

Stay granted subject to a conditional deposit of the decretal amount.

Reasoning

The Client proposed that if stay were granted, the disputed amount be deposited in a joint interest earning account in the names of the parties' advocates. The court adopted that proposal, allowing stay of execution of the order directing the refund of Ksh. 240,272.51 on condition of deposit within 21 days.

p. 2

Legal principles established

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  • An appeal does not lie against an order from a reference under the Advocates Remuneration Order except with leave of the court.
  • On an application for leave to appeal from a reference, the applicant need only show the proposed appeal is not irredeemably hopeless, without the court sitting on appeal on its own decision.

Court orders

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  1. 1.Leave granted to the Advocate to appeal against the decision dated 28th November 2025
  2. 2.Stay of execution pending determination of the proposed appeal granted on condition that Ksh. 240,272.51 is deposited in an interest earning account in the joint names of the advocates on record for the parties within 21 days of the order
  3. 3.Costs of the application granted to the Client

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Rule 11(3) of the Advocates Remuneration Order - leave of the court to appeal against an order from a reference

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.

The court may not be in agreement with the Advocate’s position on the contested issues. However, that alone does not render her proposed appeal irredeemably hopeless. She is entitled to a second opinion on the matter.
p. 2Threshold for leave to appeal from a reference
The court grants the Advocate’s request for leave to appeal against the decision dated 28th November 2025.
p. 3Final orders - leave granted
The court grants the Advocate’s request for stay of execution pending determination of the proposed appeal on condition that the amount of Ksh. 240,272.51 is deposited in an interest earning account in the joint names of the advocates on record for the parties within 21 days of this order.
p. 3Final orders - conditional stay of execution
Costs of the application are granted to the Client.
p. 3Final orders - costs

Issues in the judgment

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material

Conflicting refund figures in the judgment

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, "JA Guserwa & Company Advocates v Molonket", Case Analysis (2026). Miscellaneous Application E25 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2577/eng@2026-09-25

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