Board of Trustees, Kenya Broadcasting Corporation Staff Retirement Benefits Scheme v Morara Omoke Advocates (Civil Application E293 of 2025) [2025] KECA 1192 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction to entertain an application for leave to appeal under rule 41(1)(b)(ii) of the Court of Appeal Rules where no application for leave was made to, and refused by, the superior court
Key legal issues
#Whether the Court of Appeal has jurisdiction where leave to appeal has not been sought from and refused by the superior court
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.
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.
Legal principles established
#- 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
#- 1.Preliminary objection upheld
- 2.Notice of motion dated 12th May 2025 struck out with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
Relief refused
#Leave to appeal against the ruling of Ocharo Kebira, J. delivered on 30th April 2025
The application was premature; the applicant could only move this Court upon refusal of leave by the learned Judge, and no such refusal had occurred
Costs
The notice of motion dated 12th May 2025 is struck out with costs to the respondent.
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.
It is clear from the above rule that an applicant can only invoke rule 41(1)(b)(ii) where an application for leave has been made and denied before the learned Judge whose ruling is challenged.
In our view, the application before us was premature as the applicant could only move this Court upon refusal of leave by the learned Judge.
We find the preliminary objection with merit and uphold it, with the result that the notice of motion dated 12th May 2025 is hereby struck out with costs to the respondent.
Issues in the judgment
#The notice of motion is dated 12th May 2015 in one passage, contradicting the surrounding chronology (2023 taxation, 30th April 2025 ruling, affidavit sworn 12th May 2025), indicating a typographical error for 2025
The quoted extract of rule 11 of the Advocates Remuneration Order is introduced as rule 11 but numbered as paragraph "3", and it refers to "subsection (2)" although elsewhere the rule is said to relate to objections "referred to such Judge under subsection (2)"; the numbering and cross-references are internally inconsistent
The prayer for determination is described as seeking leave to appeal, yet prayers 2 and 3 are described as having been withdrawn under rule 5(2)(b); the extract of rule 11 is also introduced with the phrase "rule 11 of the Advocates Remuneration Order" while the preliminary objection is said to be premised on "Order 11" of that Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Board of Trustees, Kenya Broadcasting Corporation Staff Retirement Benefits Scheme v Morara Omoke Advocates (Civil Application E293 of 2025) [2025] KECA 1192 (KLR)", 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.