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Court of AppealStruck OutNotice of motion dated 12th May 2025

Board of Trustees, Kenya Broadcasting Corporation Staff Retirement Benefits Scheme v Morara Omoke Advocates (Civil Application E293 of 2025) [2025] KECA 1192 (KLR)

Court of Appeal of Kenya
4 July 2025
1,106 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

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 The application also sought stay of execution, but those prayers were withdrawn upon the Court noting it lacked jurisdiction absent a notice of appeal under rule 77.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.

Questions the Court framed

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

  1. 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

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01

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

The bench

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

majority
majority
majority
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

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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

p. 3

Costs

The notice of motion dated 12th May 2025 is struck out with costs to the respondent.

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.

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.
p. 3Leave requirement under rule 41(1)(b)(ii)
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.
p. 3Prematurity of leave application to Court of Appeal
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.
p. 3Final orders and disposition

Issues in the judgment

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minor

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

minor

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

minor

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

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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, "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.