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Court of AppealPartially AllowedCivil Application (Nai.) No. 34 of 1997· [2001] KECA 281 (KLR)

Ezekiel Ngare v Douglas Kahara [2001] KECA 281 (KLR)

Court of Appeal
20 February 2001
EOE O'Kubasu
347 words in judgment
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The bottom line

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Kenya's Court of Appeal let a man who couldn't afford court fees appeal for free, but refused to let him name someone who wasn't part of the original case.

What this practically means

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Executive summary

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This was a Notice of Motion under rule 112 of the Court of Appeal Rules in which Ezekiel Ngare sought leave to appeal as a pauper against a judgment of Nambuye, J. in the High Court (Land Case No. 240 of 1997, arising from Civil Suit No. 34 of 1997 at Kitale and 218 of 1996 at Eldoret) delivered on 13 April 2000. The applicant swore a supporting affidavit explaining that he was a poor person unable to pay court fees. The Attorney General, through Mr. Onderu, opposed the application, arguing that granting it would be futile because the High Court judgment did not comply with Order XX Rule 3(1) of the Civil Procedure Rules. Mr. Chebii, appearing for Douglas Kahara, submitted that his client was not a party to the suit and the application should be dismissed or struck out. The court, O'Kubasu, JA, held that at the pauper-leave stage it was not concerned with the merits of the intended appeal. Finding the applicant had demonstrated financial inability to pay court fees, the court granted leave to appeal as a pauper. However, because the applicant should not drag uninvolved parties into the dispute, the name of Douglas Kahara was struck out. The application therefore succeeded in part. No costs order is recorded.

Key legal issues

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01

Whether pauper leave should be granted

Holding

Granted - the applicant showed he was a poor person unable to pay court fees.

Reasoning

The applicant filed a supporting affidavit explaining his inability to pay court fees as a poor person. The court stated it was not concerned with the merits of the intended appeal at the leave stage, and granted the application to pursue the matter as a pauper.

p. 2
02

Whether non-parties could be included in the application

Holding

The name of Douglas Kahara, who was not a party to the suit, was struck out.

Reasoning

Mr. Chebii pointed out his client was not party to the suit. The court held an applicant should not drag uninvolved parties into a dispute, and struck out the name of Douglas Kahara while otherwise granting the application.

p. 2

Legal principles established

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  • An applicant for leave to appeal as a pauper must demonstrate that due to financial condition he is unable to pay court fees; where that is shown, leave may be granted without regard to the merits of the intended appeal.

Court orders

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  1. 1.The application to file appeal as a pauper is granted
  2. 2.The name of Douglas Kahara is struck out from the application

Authorities

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Legislation

  • Court of Appeal RulesRule 112
  • Civil Procedure RulesOrder XX Rule 3(1)
On appeal from
High Court of Kenya
Land Case No. 240 of 1997 (Civil Suit No. 34 of 1997 Kitale; 218 of 1996 Eldoret)
Jurisdiction invoked
Rule 112 of the Court of Appeal Rules (appeal as a pauper)

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, "Ezekiel Ngare v Douglas Kahara [2001] KECA 281 (KLR)", Case Analysis (2001). Civil Application (Nai.) No. 34 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/281/eng@2001-02-20

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