Richard Kiosi & 6 others v Alpharama Ltd [2014] KECA 260 (KLR)
The bottom line
#Kenya's Court of Appeal refused seven former casual workers permission to appeal without paying fees because their case looked weak, though they may appeal if they raise funds.
What this practically means
#Executive summary
#Key legal issues
#Conditions for leave to appeal as a pauper under Rule 115(1)
Impecuniosity alone is insufficient; the applicant must also show the appeal is arguable.
Rule 115(1) permits exemption from fees and security where the appellant lacks means and the appeal has a reasonable possibility of success. The judge accepted the applicants were of meager means, noting the Industrial Court had not condemned them to costs, and dispensed with an inquiry into pauperism. However, the second statutory condition was decisive: an applicant must satisfy both limbs before the discretion is exercised.
Reasonable possibility of success of the intended appeal
The intended appeal had no reasonable possibility of success because the applicants failed to produce cogent evidence of continuous employment.
The record showed the applicants' allegations of continuous employment were displaced by the respondent's daily records showing they were paid daily casual rates. The lagoon construction was not the respondent's core business but that of a subcontractor. Without documentary evidence of continuous employment, the judge could not find, prima facie, that the intended appeal had merit, and declined to exercise the discretion under Rule 115(1).
Necessity of an inquiry into pauperism under Orders 33 and 42 of the Civil Procedure Rules
No referral to the Deputy Registrar for an inquiry into pauperism was necessary on these facts.
The respondent argued that the applicants should have invoked Orders 33 and 42 of the Civil Procedure Act to be subjected to an inquiry into their pauperism. The judge found the applicants' meager means were apparent and appreciated even by the trial judge, who had refused costs against them for bringing the suit in good faith; accordingly an inquiry was unnecessary.
Legal principles established
#- An applicant for leave to appeal as a pauper must satisfy the court both that they lack the means to pay the required fees and that the intended appeal has a reasonable possibility of success.
- A court may refuse pauper leave where the proposed appeal could yield no more than nominal damages, since the other party would incur substantial unrecoverable costs.
Court orders
#- 1.Dismissal of the Notice of Motion dated 9th September 2014 seeking leave to appeal as a pauper
- 2.Each party to bear their own costs / applicants not condemned to pay costs of the application
- 3.Clarification that the applicants are not precluded from appealing if they obtain the resources to do so
- On appeal from
- Industrial Court (Employment and Labour Relations Court) at Nairobi
- Cause No. 1185 of 2012
- Jurisdiction invoked
- Rule 115(1) of the Court of Appeal Rules (pauper appeal / fee exemption)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Kiosi & 6 others v Alpharama Ltd [2014] KECA 260 (KLR)", Case Analysis (2014). Industrial Court at Nairobi Cause No. 1185 of 2012 (intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/260/eng@2014-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.