Jason Nyabuto Kembero v Siraj Sheikh Musdaf [2013] KECA 158 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Requirements for leave to appeal as a pauper under rule 115
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
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.
Effect of dismissal for want of jurisdiction on tribunal orders
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
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.
Balancing access to justice against protection of respondents and court resources
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
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.
Legal principles established
#- 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
#- 1.Leave to appeal as a pauper declined
- 2.Application dated 5th June, 2012 dismissed with no orders on costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Thomas Makongo Chagoche v Kenya National Examination Council [2019] KECA 671 (KLR)[2019] KECA 671 (KLR)5 Apr 2019followed
- Peter Onditi Ogugu v Allpack Industries Limited & another [2013] KECA 164 (KLR)[2013] KECA 164 (KLR)4 Oct 2013applied
Cite this brief
#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.