Geoffrey Ndung’u Theuri v Law Society of Kenya [1984] KECA 66 (KLR)
The bottom line
#Kenya's Court of Appeal let a cash-strapped appellant file his appeal without paying fees upfront, but he must repay from any costs he wins.
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 applicant, an intending appellant, lacks the means to pay the required fees and deposit security for costs for his intended appeal
- 2.Whether the intended appeal is not without a reasonable possibility of success under rule 112(1) of the Court of Appeal Rules
- 3.Whether the applicant should be permitted to lodge his appeal without prior payment of fees or security for costs, and on what terms
Key legal issues
#Whether an intending appeal may be lodged without prior payment of fees and security for costs
Yes, where the applicant lacks means and the appeal is not without a reasonable possibility of success; the court granted the relief on terms tying payment to costs recovered in the appeal.
Rule 112(1) requires the court to be satisfied that the applicant lacks means and that the appeal is not without a reasonable possibility of success. The applicant's income, debts and inability to raise funds on his property established want of means. The court found a reasonable possibility of success given the authorities on inherent jurisdiction and pre-writ injunctions, and granted the relief on terms, with the applicant undertaking to pay out of any costs recovered.
Whether a temporary injunction may issue under the court's inherent jurisdiction where no suit has been filed
The High Court judge was correct that order XXXIX rule 2 requires a filed suit, but the position under section 3A and comparative authority (Manohur Lal Chopra v Seth Hira Lal; English practice after 1965) leaves room where urgency or closed offices are shown.
Section 63 of the Civil Procedure Act refers to injunctions 'as prescribed' by rules, and no Rules Committee rules allow a temporary injunction without a suit. Indian authority holds the Code's provisions not exhaustive of the court's inherent power, and English practice after 1965 permits pre-writ injunctions in urgent cases. But the applicant never asserted urgency or closed offices before the High Court judge, so the intended appeal was merely not hopeless.
Legal principles established
#- An intending appellant who satisfies the court that he lacks the means to pay fees and security, and whose intended appeal is not without a reasonable possibility of success under rule 112(1), may be permitted to lodge the appeal without prior payment of fees or security, on terms.
- In Kenya an ex parte temporary injunction under order XXXIX rule 2 of the Civil Procedure Rules will not ordinarily be granted in a suit for restraining a defendant from committing an injury until the suit has been commenced, save in circumstances of urgency or where the court offices are closed.
Court orders
#- 1.The application is granted on terms that the applicant pays the fees and deposits the usual security out of any costs he may recover in the appeal, if he proceeds with it and recovers sufficient costs to cover them from the respondent
- 2.The applicant may lodge the intended appeal without prior payment of fees and without security for costs being lodged
- 3.The applicant must pay the costs of preparing and binding the record and memorandum of appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya, Nairobi
- Nairobi High Court Miscellaneous Application 333 of 1983
- Jurisdiction invoked
- Rule 112(1) of the Court of Appeal Rules (cap 9)
Relief refused
#Full exemption from bearing the costs of preparing and binding the record and memorandum of appeal
The court directed that he bear these costs notwithstanding the fee waiver
Costs
The applicant pays the fees and deposits the usual security out of any costs he may recover in the appeal, if he proceeds with it and recovers sufficient costs to cover them from the respondent; meanwhile he may lodge the appeal without prior payment of fees and without security, but must pay the costs of preparing and binding the record and memorandum of appeal.
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 application is granted on terms, namely, that the applicant pays the fees and deposits the usual security out of any costs he may recover in the appeal, if he proceeds with it, and recovers sufficient costs to cover them from the respondent.
Meanwhile, if he still wishes to appeal, I direct that he may lodge it without prior payment of fees and without security for costs being lodged for doing, so, but he must pay the costs of preparing and binding the record and memorandum of appeal.
I am satisfied that he lacks the means to pay the required fees or to deposit the security for costs and that his intended appeal is not without [a] reasonable possibility of success
in Kenya an ex parte injunction will not ordinarily be granted under order XXXIX rule 2, in any suit for restraining a defendant from committing an injury of any kind until the suit has been commenced
When the Rules prescribe some circumstances in which a temporary injunction may be issued then ordinarily the court cannot use its inherent powers to make orders in the interest of justice or to prevent abuse of the process of the court, but must see if the circumstances of the case bring it within the rule.
Issues in the judgment
#Costs order of the High Court judge appears internally inconsistent: costs were first awarded to the applicant, then to the defendants on review, and a dispute about costs remains unresolved
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geoffrey Ndung’u Theuri v Law Society of Kenya [1984] KECA 66 (KLR)", Case Analysis (1984). Nairobi High Court Miscellaneous Application 333 of 1983 (intended appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/66/eng@1984-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.