Attorney-General v Theuri [1985] KECA 69 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Exercise of the rule 4 discretion to extend time for lodging a notice of appeal
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
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.
Whether the explanation of a ten-day delay in lodging the notice of appeal justified extension of time
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
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application and should have anticipated an appeal; the notice was simple and cheap to file, and could have been withdrawn later without opprobrium.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.
Costs recoverable by a successful litigant in person
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
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.
Legal principles established
#- 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
#- 1.The decision of Platt Ag JA allowing the Attorney-General's application under rule 4 in part was reversed
- 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.Those costs were fixed together at one sum of Shs 1,200.00, obviating taxation
- 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)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.