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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedReference from the decision of Platt Ag JA (single Judge of Appeal)

Attorney-General v Theuri [1985] KECA 69 (KLR)

Court of Appeal of Kenya
19 December 1985
3,776 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled government lawyers can't get deadline extensions for preventable delays, and self-represented litigants can recover actual expenses but not lawyer fees.

What this practically means

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Executive summary

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This is a Court of Appeal judgment giving reasons for a decision, announced at the close of a reference, by which the full Court reversed Platt Ag JA, who had partially allowed the Attorney-General's motion under rule 4 of the Court of Appeal Rules extending time to lodge a notice of appeal. The notice of appeal was directed against High Court orders of mandamus (O'Kubasu and Abdullah JJ, May 20, 1985) compelling the Council of Legal Education and the Kenya School of Law to act in favour of Mr Theuri. The Attorney filed his notice ten days out of time, explaining the delay by the need to obtain the Council of Legal Education's authority. The single Judge, applying Gatti v Shoosmith, treated the short delay and understandable mistake as justifying extension. The full Court held the discretion under rule 4 is wide but must be exercised judicially; on a reference the Court will not interfere unless the single Judge clearly erred or acted on improper grounds, the onus lying on the applicant. It found the single Judge erred by attributing the delay to the Secretary's desire for instructions rather than to State Counsel's failure to act immediately after the adverse judgment, professionals having let the time lapse without justification. On costs, the Court held Mr Theuri, a successful litigant in person, was entitled to an indemnity for costs actually, necessarily and properly incurred, since costs follow the event, but could not recover notional advocate's fees as Kenya lacks an equivalent to the English Order 62 rule 28A. The Court fixed the costs of the application and reference together at Shs 1,200.00 and recommended the English provision to the Rules Committee.

Questions the Court framed

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

  1. 1.Whether the reference should reverse the decision of Platt Ag JA extending time for the Attorney-General to lodge a notice of appeal out of time
  2. 2.Whether the single Judge exercised his discretion under rule 4 on proper or improper grounds
  3. 3.Who should pay the costs of the reference and of the motion before the single Judge, and on what basis a successful litigant in person may recover costs

Key legal issues

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01

Exercise of the rule 4 discretion to extend time for lodging a notice of appeal

Holding

The discretion is wide and almost unfettered, constrained only by the requirement that the terms be just, but it must be exercised judicially and on proper grounds

Reasoning

Platt Ag JA had to decide judicially whether to extend time and on what terms. The discretion embraces all circumstances of the case and the rights of the parties. The full Court on reference will reverse the single Judge where the discretion was exercised on improper grounds, here where the delay was wrongly attributed to the need for instructions rather than to counsel's failure to act promptly after the adverse judgment.

p. 2
02

Whether the explanation of a ten-day delay in lodging the notice of appeal justified extension of time

Holding

It did not; professionals involved let the time lapse without justification, and the delay was properly attributable to State Counsel's failure to act immediately rather than to the Secretary's desire for instructions

Reasoning

Counsel opposed the mandamus application and should have anticipated an appeal; the notice was simple and cheap to file, and could have been withdrawn later without opprobrium. The Secretary's calm consultation with the Council while the fourteen days passed was not a justification. The single Judge misappropriated the cause of the delay, following Gatti v Shoosmith where there had been a mere misunderstanding, which was not the case here.

p. 4
03

Costs recoverable by a successful litigant in person

Holding

A litigant in person may recover only costs actually, necessarily and properly incurred, including reasonable attendance expenses; no notional fees for advocates' work are recoverable in Kenya

Reasoning

Under the Court of Appeal Rules a reference is in effect another application, and the Deputy Registrar is the taxing officer for its costs, taxed per the Third Schedule which allows reasonable expenses of a party appearing in person. Unlike England's Order 62 rule 28A, Kenya has no provision allowing a litigant in person to recover a fraction of what a solicitor would have been paid; the Court drew the Rules Committee's attention to the English provisions. Section 27(1) Civil Procedure Act applied, costs following the event.

p. 5

Legal principles established

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  • A reference to the full Court against a single Judge's decision is not an appeal, but the Court will not interfere with the single Judge's exercise of discretion unless it is clear he erred or acted on improper grounds, the onus being on the applicant for the reference
  • A notice of appeal is a simple formal document whose lodgment requires no skill and can be done immediately upon an adverse decision, and can be withdrawn later without opprobrium
  • A successful litigant in person is entitled to an indemnity against costs actually, necessarily and properly incurred, because costs follow the event, but cannot recover notional advocate's fees

Court orders

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  1. 1.The decision of Platt Ag JA allowing the Attorney-General's application under rule 4 in part was reversed
  2. 2.The costs of the reference and of the motion before the single Judge were awarded to Theuri as the successful litigant in person, against the Attorney-General
  3. 3.Those costs were fixed together at one sum of Shs 1,200.00, obviating taxation

The bench

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

majority
majority
majority
On appeal from
Court of Appeal of Kenya (decision of a single Judge of Appeal)
Attorney-General's motion on notice filed June 13, 1985 under rule 4 of the Court of Appeal Rules
Jurisdiction invoked
Rule 4 and rule 54(1)(b) of the Court of Appeal Rules (reference against a decision of a single Judge of Appeal)

Relief refused

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Recovery by Theuri of national costs of briefing an advocate or sums under the Advocates (Remuneration) Order

Theuri is not an advocate and Kenya has no equivalent to the English Order 62 rule 28A litigant-in-person costs provision

p. 5

Any order against the Council of Legal Education, its Secretary, or the Principal of the Kenya School of Law

None of them was a party to the application or the reference

p. 5

Costs

Costs of the reference and of the motion before the single Judge awarded to Theuri against the Attorney-General, limited to expenses necessarily and properly incurred including reasonable attendance expenses, and fixed together at one sum of Shs 1,200.00

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.

Accordingly we reversed him.
p. 4Final orders - reversal of the single Judge's decision
we fix these costs for the application and the reference together at one sum of Shs 1,200.00 in the hope of ending this litigation.
p. 6Final orders - costs fixed at a gross sum
It is a wide discretion and almost unfettered, for the only constraint imposed by the rule is that the terms should be just.
p. 2Nature of the rule 4 discretion to extend time
a reference is just another application and the Deputy Registrar is the taxing officer for it as for an ‘appeal’ or an ‘application’
p. 5Taxation of costs on a reference
The costs are limited to the payment Mr Theuri incurred necessarily and properly for this application and reference, and they include reasonable expenses for his attendance at both.
p. 5Limits of a litigant-in-person costs award

Issues in the judgment

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minor

The judgment says the notice of appeal was due 'on or before June 3' yet describes the June 13 motion as only 'ten days out of time' (June 3 to June 13 is ten days, but the stated arithmetic of the rules and the motion date is internally consistent; noted only for the slight tension with the earlier statement that the Attorney 'was not ready to do so until June 13, which was ten days out of time')

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, "Attorney-General v Theuri [1985] KECA 69 (KLR)", Case Analysis (1985). Reference from the decision of Platt Ag JA (single Judge of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/69/eng@1985-12-19

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