ATTORNEY GENERAL v GEOFREY NDUNGU THEURI [1986] KECA 8 (KLR)
The bottom line
#Kenyan courts confirm self-represented litigants who win can recover their actual expenses, but not imaginary lawyer's fees.
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 respondent, a successful litigant in person, is entitled to costs of the application and the reference
- 2.Whether a litigant in person may recover notional costs as if an advocate had been briefed
- 3.What expenses a litigant in person may recover and how they should be assessed
Key legal issues
#Entitlement of a litigant in person to costs
A successful litigant in person may recover the expenses necessarily and properly incurred, including attendance expenses, but not notional fees for an advocate
The court traced the costs provisions of the Court of Appeal Rules, holding that a reference is an application for taxation purposes. The Third Schedule para 19 allows reasonable expenses of a party appearing in person. Section 27(1) Civil Procedure Act makes costs follow the event. Unlike England's order 62 rule 28A, Kenya has no rule allowing recovery of a fraction of notional solicitor's costs, and the court cannot create such law.
Whether the court could award costs against third bodies
No order could be made against the Council of Legal Education, its Secretary or the Principal of the Kenya School of Law as none was a party
Costs can only be ordered against parties to the proceedings before the court. The court suggested the Attorney General decide from which parliamentary vote the costs should be paid.
Legal principles established
#- A reference under rule 54(1) is in effect just another application, and the Deputy Registrar is the taxing officer for its costs as for an appeal or application
- A successful litigant in person is entitled to an indemnity against costs actually incurred, including reasonable attendance expenses, but not to notional advocate's fees under the Advocates (Remuneration) Order
- Costs follow the event unless the court or judge for good reason otherwise orders, under section 27(1) of the Civil Procedure Act
Court orders
#- 1.The respondent is entitled to an indemnity from the Attorney General against costs actually incurred in the application to the single judge and the reference to the full court
- 2.Costs limited to amounts necessarily and properly incurred, including reasonable expenses of attendance
- 3.Costs for the application and reference fixed together at one sum of Kshs 1,200.00, obviating taxation
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya (single judge of appeal)
- Jurisdiction invoked
- Court of Appeal Rules, rule 54(1)(b) - reference against a decision of a single judge of appeal
Relief refused
#Notional costs of briefing an advocate
Kenya has no equivalent to the English order 62 rule 28A permitting a litigant in person to recover for work done up to a fraction of what a solicitor would have been allowed; the litigant cannot rely on the Advocates (Remuneration) Order as he is not an advocate
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
Costs
Costs of the application and the reference fixed together at one sum of Kshs 1,200.00 payable by the Attorney General to the respondent, limited to amounts necessarily and properly incurred including reasonable attendance expenses
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.
It is in the rules, and in effect, a reference is just another application and the Deputy Registrar is the taxing officer for it as for an ‘appeal’ or an ‘application’.
we find he is entitled, as a successful litigant in person, to an indemnity from the respondent Attorney against the costs he has in fact incurred in bringing this application to the single judge of appeal and then of this reference to court
and we fix these costs for the application and the reference together at one sum of Kshs 1,200.00 in the hope of ending this litigation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ATTORNEY GENERAL v GEOFREY NDUNGU THEURI [1986] KECA 8 (KLR)", Case Analysis (1986). Civil Application NAI 51 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/8/eng@1986-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.