P. M. Wamae & Co. Advocates v Ntoitha M’Mithiaru [2014] KECA 221 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an application for certification for appeal to the Supreme Court should be brought by Notice of Motion rather than Originating Motion
- 2.Whether an application for leave to appeal to the Supreme Court may be heard by the same bench whose judgment is the subject of the intended appeal
- 3.Whether the intended appeal raises matters of general public importance warranting certification under Article 163(4)(b) of the Constitution
- 4.Whether an issue never raised in the courts below can ground certification
Key legal issues
#Competency of a certification application brought by Notice of Motion
The application was properly brought by Notice of Motion supported by affidavit
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.
Whether the same bench may hear the certification application
Yes - no constitutional or statutory restriction prevents the same bench from hearing the certification application
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.
Whether the intended appeal raised matters of general public importance
No - the dispute was a private advocate/client fees matter that did not transcend the circumstances of the case
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.
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.The application for leave to appeal to the Supreme Court is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
Relief refused
#Certification/leave to appeal to the Supreme Court
The applicant failed to demonstrate that the intended appeal raises matters of general public importance transcending the parties' private fee dispute
Referral of the application to a different bench
No constitutional or statutory restriction bars the same bench from hearing the certification application
Certification on the 'court of record' issue
The issue was never raised or judicially determined in the courts below
Costs
The application is dismissed with costs to the respondents.
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.
The Jurisdiction of the Supreme Court to hear appeals from this Court is, by Article 163(4) of the Constitution, limited to two situations only. Where the case involves the interpretation or application of the Constitution, there is a right of appeal to the Supreme Court as of right. In any other case, the Supreme Court itself or this Court must certify that a matter of general public importance is involved.
For a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal transcends the circumstances of the particular case, and has a significant bearing on the public interest
It is now sufficiently clear that, as a matter of principle and of judicial policy, the appellate jurisdiction of the Supreme Court is not to be invoked save in accordance with the terms of the Constitution and the law, and not merely for the purpose of rectifying errors with regard to matters of settled law.
matters only tangentially adverted to, without a trial focus or a clear consideration of facts in the other Courts will often be found to fall outside the proper appeal cause in the Supreme Court
The upshot of the foregoing is that we find that the application has no merit and is hereby dismissed with costs to the respondents.
Issues in the judgment
#Garbled/typographical passage in paragraph 10 quoting Steyn, including case-number corruption
Typographical errors in the reproduced Steyn passage ('is property before the Court' for 'properly')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "P. M. Wamae & Co. Advocates v Ntoitha M’Mithiaru [2014] KECA 221 (KLR)", 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.