P.M Wamae & Co. Advocates v Ntoitha M'mithiaru
The bottom line
#Supreme Court can review denied appeals, but private fee disputes aren't public importance.
What this practically means
#The Supreme Court confirmed it can review a Court of Appeal decision that refuses to certify an appeal as a matter of general public importance. However, the Court found that a dispute between an advocate and client over legal fees is a private matter, not one that affects the public. The Court dismissed the application because the issues raised were specific to the parties and not determined by the lower courts.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction.
- 2.Whether a matter of general public importance is involved in the intended appeal.
Key legal issues
#Whether the Supreme Court has jurisdiction to review a refusal by the Court of Appeal to certify a matter as one of general public importance.
The Supreme Court has jurisdiction to review both a grant and a refusal of certification under Article 163(5) of the Constitution.
The respondent argued that the Court could only review where certification was granted, not where it was denied. The Court rejected this, citing its earlier decision in Hermanus Phillipus Steyn v. Giovanni Gnecchi Ruscone, which held that 'certification' under Article 163(5) should be broadly read to include both a decision that a matter is of public importance and a decision that it is not. The Court adopted this position, emphasizing the constitutional right of access to justice and non-discrimination, and found it had jurisdiction to hear the application.
Whether the intended appeal raises a matter of general public importance under Article 163(4)(b) of the Constitution.
The intended appeal does not raise a matter of general public importance; it is a private dispute between an advocate and client over fees.
The applicant argued that the issues transcended the case, including whether estoppel can apply retrospectively and whether the Court of Appeal is a court of record. The Court found that the dispute was essentially a private fee disagreement, determined on its own peculiar facts. The Court noted that the issues raised were not determined by the Court of Appeal and therefore could not be considered by the Supreme Court. The Court applied the principles from Hermanus, requiring that a matter of general public importance must transcend the circumstances of the particular case and have a significant bearing on the public interest.
Legal principles established
#- The Supreme Court has jurisdiction to review both grants and denials of certification under Article 163(5) of the Constitution.
- A matter of general public importance must transcend the circumstances of the particular case and significantly affect public interest.
- A private dispute between an advocate and client over fees does not meet the threshold of general public importance.
- The Supreme Court will not consider issues that were not raised or determined in the courts below.
Court orders
#- 1.The Ruling of the Appellate Court delivered on November 25, 2014 is hereby affirmed.
- 2.The application dated December 29, 2014 fails and is hereby dismissed.
- 3.The parties shall bear their own respective costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution; Section 15(1) of the Supreme Court Act; Rule 24 of the Supreme Court Rules
Relief refused
#Certification that the intended appeal raises matters of general public importance
The dispute is private and does not transcend the circumstances of the particular case.
Costs
The parties shall bear their own respective costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Hence, we hold that certification under Article 163 5 should be broadly read as alluding to certification by the Court that a matter of public importance is involved, or is not involved.
We are unconvinced that this is a matter that transcends the circumstances of this particular case. Simply put, the record reveals a dispute between an Advocate and his client over fees owed to the advocate.
Key timeline
#Practical implications
#Certification review now available
Lawyers can now apply to the Supreme Court for review when the Court of Appeal denies certification under Article 163(5). However, ensure your intended appeal raises issues that transcend the parties' private interests and were properly raised in lower courts. Focus on arguments with broad public impact, not just client-specific disputes.
Fee disputes stay in lower courts
Businesses involved in fee disagreements with lawyers should expect these to remain in the High Court and Court of Appeal. The Supreme Court will not hear such private disputes unless they involve significant public interest, such as widespread industry practices or constitutional questions. Plan your litigation strategy accordingly.
Private cases rarely reach Supreme Court
If you have a personal legal dispute, such as a fee disagreement with your lawyer, the Supreme Court is unlikely to hear it. The Court only takes cases that affect the public broadly. Focus on resolving your case at the Court of Appeal level, as that is likely the final stop for private matters.
Frequently asked questions
#Can the Supreme Court review a denied appeal in Kenya?+
Yes, the Supreme Court can review a Court of Appeal decision that refuses to certify an appeal as a matter of general public importance. This was confirmed in Paul Matheri Wamae v. Maoka Maore, where the Court held it has jurisdiction over both grants and denials of certification under Article 163(5) of the Constitution.
What is a matter of general public importance in Kenya?+
A matter of general public importance must go beyond the specific parties and affect the public interest significantly. In Paul Matheri Wamae v. Maoka Maore, the Supreme Court ruled that a private fee dispute between an advocate and client does not meet this threshold because it does not transcend the circumstances of the case.
How do I appeal to the Supreme Court in Kenya?+
First, you must get certification from the Court of Appeal that your case involves a matter of general public importance. If the Court of Appeal denies certification, you can apply to the Supreme Court for review, as established in Paul Matheri Wamae v. Maoka Maore. Ensure your issues were raised in lower courts.
Can the Supreme Court hear a private dispute in Kenya?+
Generally, no. The Supreme Court only hears cases that raise matters of general public importance. In Paul Matheri Wamae v. Maoka Maore, the Court dismissed an application involving a private advocate-client fee dispute, finding it did not affect the public interest and was based on the case's specific facts.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwendwa Mwinzi & Associates Advocates v Muraya (Environment and Land Miscellaneous Application E060 of 2022) [2024] KEELC 1122 (KLR)[2024] KEELC 1122 (KLR)4 Mar 2024
Cite this brief
#Cite this brief
Caselaw, "P.M Wamae & Co. Advocates v Ntoitha M'mithiaru", Case Analysis (2015). Civil Application 48 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2015/32/eng@2015-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.