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Court of AppealDismissedMiscellaneous Application dated 5th June, 2012 (rule 115 application)· [2013] KECA 158 (KLR)

Jason Nyabuto Kembero v Siraj Sheikh Musdaf [2013] KECA 158 (KLR)

Court of Appeal of Kenya
4 October 2013
1,199 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused a poor tenant permission to appeal without paying fees because his case simply had no chance of succeeding.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by M'Inoti, JA, on an application under rule 115 of the Court of Appeal Rules for relief from fees and security to enable the applicant, Jason Nyabuto Kembero, to appeal as a pauper against a High Court ruling of 6th June, 2011 (Mwera, J) dismissing his application to commit the respondent to jail for contempt for failing to return his goods. The background was a tenancy dispute: a Business Premises Rent Tribunal ordered return of the tenant's goods, but the tribunal later discovered the premises were residential and dismissed the suit for want of jurisdiction on 22nd March, 2011. The applicant nonetheless sought committal, which the High Court dismissed as misconceived. He then obtained leave to appeal as a pauper from Rawal, J and an extension of time from Onyancha, J. Before M'Inoti, JA, the applicant established, via a Registrar's report and an Assistant Chief's letter, that he lived below the poverty line, and the Court accepted he lacked means. However, applying Apondi v Canuald Metal Packaging and Mandevia v Rongwe African Co-operative Union Ltd, the Court held the intended appeal had no reasonable possibility of success: the tribunal lacked jurisdiction over residential premises, its orders did not survive the dismissal, and its earlier status quo order could not revive them. Balancing access to justice against the respondent's costs exposure and judicial resources, the Court declined leave and dismissed the application with no orders on costs. The decision binds the High Court and tribunals on the twin requirements of rule 115 and on the unenforceability of orders made without jurisdiction.

Key legal issues

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01

Requirements for leave to appeal as a pauper under rule 115

Holding

The applicant bears the onus of satisfying the court that he lacks means and that the appeal has a reasonable possibility of success; the court is prepared to accept lack of means but refuses relief because the appeal lacks prospects of success

Reasoning

Applying the former rule 112 as explained in Apondi v Canual Metal Packaging, the court must be satisfied both of indigence and of reasonable prospects. The Registrar's report and the Assistant Chief's letter established poverty, but the tribunal suit was dismissed for want of jurisdiction, so the orders the applicant wished to enforce on appeal could not stand. Access to justice does not extend to hopeless or vexatious appeals.

p. 2
02

Effect of dismissal for want of jurisdiction on tribunal orders

Holding

Because the Business Premises Rent Tribunal found the premises residential, it had no jurisdiction; its dismissal of the suit meant its purported orders of 16th February, 2011 could not be enforced, including by committal for contempt

Reasoning

The tribunal itself discovered that the premises were residential rather than business premises and dismissed the case for want of jurisdiction on 22nd March, 2011. Orders issued by a body without jurisdiction, or after dismissal for want of jurisdiction, cannot found a contempt application. The applicant's reliance on an earlier status quo order of 3rd December, 2010 was misplaced because it did not affect the later orders.

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03

Balancing access to justice against protection of respondents and court resources

Holding

The Court will accommodate genuinely poor applicants with reasonable claims, but rule 115 is not a licence to vex opponents; the court must weigh competing interests including the respondent's costs and other litigants' claims on judicial time

Reasoning

The judgment articulates the balancing exercise underlying pauper appeals: the financially handicapped applicant's genuine grievance, the costs the respondent would irrecoverably incur, available judicial time and resources, and the legitimate expectations of other litigants. Where the appeal has no reasonable possibility of success, granting pauper leave would be unjust to the respondent.

p. 3

Legal principles established

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  • An applicant under rule 115 must satisfy the court both that he lacks the means to pay fees or deposit security and that the intended appeal has a reasonable possibility of success; failure on either ground justifies refusal of leave to appeal as a pauper
  • Rule 115 relief is not available for academic or vexatious pursuits; the court must balance the applicant's genuine grievance against the respondent's costs exposure, judicial resources and other litigants' demands
  • Orders of a tribunal or court without jurisdiction cannot survive dismissal of the suit for want of jurisdiction nor be enforced by committal for contempt

Court orders

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  1. 1.Leave to appeal as a pauper declined
  2. 2.Application dated 5th June, 2012 dismissed with no orders on costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 115 (including rule 115(1) and rule 115(2))
  • Court of Appeal Rulesformer rule 112
  • Constitution of Kenyaaccess to justice guarantee (unspecified provision)

Cases cited (2)

  • APONDI V CANUALD METAL PACKAGING
    (2005) 1 EA 12
  • MANDEVIA V RONGWE AFRICAN CO-OPERATIVE UNION LTD
    (1958) EA 524
On appeal from
High Court of Kenya at Nairobi
Miscellaneous Civil Application No. 163 of 2011
Jurisdiction invoked
Rule 115 of the Court of Appeal Rules (application for relief from fees and security to appeal as a pauper)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jason Nyabuto Kembero v Siraj Sheikh Musdaf [2013] KECA 158 (KLR)", Case Analysis (2013). Miscellaneous Application dated 5th June, 2012 (rule 115 application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/158/eng@2013-10-04

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