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Court of AppealStruck OutNotice of motion dated 12th May 2025· [2025] KECA 1192 (KLR)

The Board of Trustees, Kenya Broadcasting Corporation Staff Retirement Benefits Scheme v Morara Omoke Advocates

Court of Appeal of Kenya
4 July 2025
DMD. K. MusingaWKW. KaranjaKMK. M'inoti
1,106 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal struck out a leave application because the applicant never first asked the lower court judge for leave to appeal and been refused.

What this practically means

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Executive summary

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This is a single judgment of a three-judge bench of the Court of Appeal at Nairobi, delivered by D. K. Musinga (President), W. Karanja and K. M'inoti on 4th July 2025. The applicant, the Board of Trustees of the Kenya Broadcasting Corporation Staff Retirement Scheme, had been represented by Morara Omoke Advocates in an ELRC labour matter. After the advocate's bill of costs was taxed by the Taxing Master on 22nd December 2023, the advocate successfully moved Ocharo Kebira, J. by way of reference, in a ruling delivered on 30th April 2025. The applicant then moved to the Court of Appeal seeking leave to appeal against that ruling, without first obtaining leave from the ELRC judge. Counsel asserted that leave had been sought orally and that the judge had directed the filing of a formal application, but no such application was made. The respondent raised a preliminary objection on a pure point of law: under rule 11 of the Advocates Remuneration Order an appeal lies only with leave of the Judge, and under rule 41(1)(b)(ii) of the Court of Appeal Rules this Court's jurisdiction is engaged only where leave has been sought from and refused by the superior court. The Court agreed, holding that since the Judge had not refused leave, the application was premature and the Court lacked jurisdiction. The preliminary objection was upheld, the notice of motion dated 12th May 2025 was struck out with costs to the respondent. The application also sought stay of execution, but those prayers were withdrawn upon the Court noting it lacked jurisdiction absent a notice of appeal under rule 77. The binding rule is that rule 41(1)(b)(ii) may be invoked only after a refusal of leave by the Judge below.

Key legal issues

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Whether the Court of Appeal has jurisdiction where leave to appeal has not been sought from and refused by the superior court

Holding

The Court lacks jurisdiction; rule 41(1)(b)(ii) applies only where leave has been applied for and refused by the Judge, and an oral request met with a direction to file a formal application is not a refusal.

Reasoning

Rule 11 of the Advocates Remuneration Order permits appeal to the Court of Appeal only with leave of the Judge. Rule 41(1)(b)(ii) permits this Court to entertain a leave application where leave was sought from the superior court and refused. Here the Judge did not refuse leave but directed counsel to file a formal application, which was never done. The oral claim of having sought leave was a statement from the bar unsupported by affidavit. The application was therefore premature and the Court had no jurisdiction.

p. 3

Legal principles established

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  • An appeal against a decision on a reference under the Advocates Remuneration Order lies to the Court of Appeal only with leave of the Judge, and the Court of Appeal may entertain an application for leave under rule 41(1)(b)(ii) only where leave has been sought from and refused by the superior court.

Court orders

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  1. 1.Preliminary objection upheld
  2. 2.Notice of motion dated 12th May 2025 struck out with costs to the respondent
On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
Rules 41(1)(b), 44 and 45 of the Court of Appeal Rules and paragraph 11(B) of Schedule 6 of the Advocates Remuneration Order; leave to appeal against a taxing reference ruling

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, "The Board of Trustees, Kenya Broadcasting Corporation Staff Retirement Benefits Scheme v Morara Omoke Advocates", Case Analysis (2025). Notice of motion dated 12th May 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1192/eng@2025-07-04

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