Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealOtherCourt of Appeal Rules (Cap 9), Rule 112 motion arising from Nairobi High Court Miscellaneous Application 333 of 1983

GEOFFREY NDUNGU THEURI vs THE LAW SOCIETY OF KENYA [1984] KECA 75 (KLR)

Court of Appeal of Kenya
10 December 1984
3,456 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal let an appellant who could not afford court fees file his appeal, but only if he pays them from any costs he recovers.

What this practically means

#

Executive summary

#
The applicant, Geoffrey Ndung'u Theuri, moved ex parte under Rule 112 of the Court of Appeal Rules (Cap 9) for leave to lodge an intended appeal from rulings of Porter J in Nairobi High Court Miscellaneous Application 333 of 1983 without paying court fees or lodging security for costs, and to bear only the costs of preparing and binding the record and memorandum of appeal. The intended appeal challenged the striking out of a summons in chambers for an injunction because no suit had been filed, and the subsequent refusal to review that order. The court reviewed the applicant's indebted and modest financial circumstances, and examined whether the intended appeal had a reasonable possibility of success. It considered Section 63 of the Civil Procedure Act, Order XXXIX Rule 2, and comparative material: the Indian decision in Manohar Lal Chopra v Seth Hira Lal on inherent power to grant injunctions before a suit is filed, and pre-1965 and post-1965 English practice. It also considered Mwangi Njoroge Mugwe v James Mwangi Kihara, a High Court decision in which Chesoni J granted a consent injunction before any suit was commenced because of urgency concerning a corpse. The court was satisfied that Porter J was correct in holding he had no jurisdiction where no suit existed, but found the appeal not without a reasonable possibility of success, given authorities not cited below. The application was granted on terms: the appeal may be lodged without prior payment of fees or security, but fees and the usual security must be paid out of any costs recovered in the appeal, and the applicant must bear the costs of preparing and binding the record and memorandum of appeal. Delivered at Nairobi on December 10, 1984 by Kneller JA.

Questions the Court framed

#

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

  1. 1.Whether the applicant lacks the means to pay the required court fees and deposit security for costs for his intended appeal
  2. 2.Whether the intended appeal is not without a reasonable possibility of success under Rule 112(1)

Key legal issues

#
01

Whether a temporary injunction may be granted before commencement of a suit under the court's inherent jurisdiction

Holding

The judge below was correct to hold he had no jurisdiction where no suit had been filed, though the point is arguable on the intended appeal in light of Indian and English authorities and Section 63 of the Civil Procedure Act

Reasoning

Order XXXIX Rule 2 permits an application to restrain injury to property where a suit has been filed; the applicant had filed none. The word 'prescribed' in Section 63 ties interlocutory powers to Rules Committee rules, and the only such rules are the Civil Procedure Rules. However, the Indian Supreme Court in Manohar Lal Chopra v Seth Hira Lal held inherent powers are not excluded by express provisions, and English practice after 1965 permitted pre-writ injunctions in urgent cases or where offices were closed. These points were not before Porter J and remain arguable.

p. 2
02

Whether the applicant qualifies for relief from fees and security under Rule 112

Holding

Granted on terms: the appeal may be lodged without prior payment of fees or security, conditional on payment out of any costs recovered

Reasoning

The applicant is heavily indebted, with a gross monthly income of Shs 2,500, an unemployed wife, three children, and no available security on his Umoja house for want of a lease. The Deputy Registrar's undertaking requirement was adopted. The court was also satisfied the intended appeal is not without a reasonable possibility of success, though it cautioned that success may bring no personal profit given the injunction already obtained.

p. 5

Legal principles established

#
  • Under Rule 112 the court must be satisfied that the intended appeal is not without a reasonable possibility of success and that the applicant lacks means before excusing fees and security
  • In Kenya an ex parte injunction under Order XXXIX Rule 2 will not ordinarily be granted until the suit has been commenced

Court orders

#
  1. 1.The applicant may lodge his intended appeal without prior payment of fees and without security for costs being lodged
  2. 2.The applicant must pay the costs of preparing and binding the record and memorandum of appeal
  3. 3.The applicant shall pay the fees and deposit 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

The bench

#

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

majority

Wrote the judgment

On appeal from
High Court of Kenya, Nairobi
Nairobi High Court Miscellaneous Application 333 of 1983
Jurisdiction invoked
Rule 112 of the Court of Appeal Rules (Cap 9)

Relief refused

#

Complete waiver of the obligation to pay fees and lodge security

The indulgence was granted only on terms, conditional on recovery of costs in the appeal

p. 5

Costs

The applicant bears the costs of preparing and binding the record and memorandum of appeal; fees and security to be paid out of any costs recovered in the 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.

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
p. 5Rule 112 satisfaction test
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. Orders accordingly.
p. 5Final orders

Issues in the judgment

#
minor

The English authority is rendered inconsistently in the judgment as 'Garr v Morice' and 'Carr v Morice', apparently the same case

minor

The spelling of the Indian case varies: 'Manchur Lal Chopra' versus the standard 'Manohar Lal Chopra'

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "GEOFFREY NDUNGU THEURI vs THE LAW SOCIETY OF KENYA [1984] KECA 75 (KLR)", Case Analysis (1984). Court of Appeal Rules (Cap 9), Rule 112 motion arising from Nairobi High Court Miscellaneous Application 333 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/75/eng@1984-10-12

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