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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. NAI 126 of 2011· [2015] KECA 946 (KLR)

Ali Mohammed Mwanzia v National Bank of Kenya

Court of Appeal
20 February 2015
1,526 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal let a financially struggling man appeal a bank judgment without paying fees, but he must pay if he wins costs.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal at Nairobi by M'Inoti, J.A. on an application under Rule 115 of the Court of Appeal Rules by Ali Mohammed Mwanzia seeking exemption from paying fees and security for costs to enable him to appeal the ruling of Koome, J. dated 12th March 2010 in HCCC No. 1705 of 1997, which dismissed his application to set aside a regular judgment entered for National Bank of Kenya after he and his advocate failed to attend the resumed hearing. The applicant, a victim of the 1998 American Embassy bombing with severe injuries including loss of sight in one eye, deponed that he had no reliable income. The respondent opposed, contending the application was an abuse of process because the applicant had not demonstrated pauperism and had another pending suit in which no relief from fees was sought. The court applied the burden from Apondi v Canuald Metal Packaging and Mandevia v Rongwe, and its own earlier observations in Jason Nyabuto Kembero v Singh Sheikh Musdaf, holding that the other suit, filed in 1995 before the applicant's misfortune, did not prove means. Finding the applicant's circumstances dire and the appeal prima facie arguable since he was apparently not heard before judgment, the court allowed the application, exempting the applicant from fees and security, conditionally on his paying the requisite fees should he recover sufficient costs from the respondent, with no orders on the costs of the application. The intended appeal itself was left to be determined if and when filed.

Key legal issues

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01

Burden of proof in relief-from-fees applications

Holding

The applicant must satisfy the Court he lacks means to pay fees or security

Reasoning

The court cited Apondi v Canuald Metal Packaging and Mandevia v Rongwe African Co-operative Union Ltd for the burden on the applicant, then examined the Deputy Registrar's report on the applicant's dire circumstances, including injuries from the 1998 embassy bombing, to find the burden discharged.

p. 2
02

Effect of another pending suit without relief from fees

Holding

Existence of another suit in which no relief was sought does not prove financial means

Reasoning

The respondent relied on Civil Suit No 3459 of 1995 (Fuji Auto Trading v National Bank of Kenya Ltd) to show ability to pay. The court held that suit was filed in 1995, before the 1998 calamity that destroyed the applicant's fortunes, so it was no proof of present means.

p. 3
03

Prospects of the intended appeal

Holding

The court cannot prejudge the merits; prima facie denial of a hearing suffices at this stage

Reasoning

The applicant contended he was never heard on merit before judgment was entered. The court held that whether non-attendance was the applicant's or advocate's fault, and whether it was excusable, are issues for the appeal itself which cannot be preempted on a rule 115 application.

p. 3

Legal principles established

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  • An applicant for relief from fees and costs bears the burden of satisfying the Court that he lacks the means to pay fees or deposit security
  • In a rule 115 application the Court considers prospects of success, recoverable damages, and balances the applicant's right of appeal against the respondent's risk of unrecoverable costs
  • Rule 115 is not a licence to vex opponents; the Court must balance competing interests including access to justice

Court orders

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  1. 1.Applicant exempted from paying court fees and deposit of security for costs in his intended appeal from the ruling and order of the High Court dated 12th March 2010
  2. 2.Should the applicant proceed with the intended appeal and recover sufficient costs from the respondent, he shall pay the requisite fees
  3. 3.No orders on costs of the application

Authorities

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Legislation

  • Court of Appeal RulesRule 115 (including rule 115(2))

Cases cited (3)

  • APONDI V. CANUALD METAL PACKAGING
    [2005] 1 EA 12

    Burden on applicant for relief from fees to satisfy the Court he lacks means

  • MANDEVIA V. RONGWE AFRICAN CO-OPERATIVE UNION LTD
    [1958] EA 524

    Burden on applicant for relief from fees to satisfy the Court he lacks means

  • JASON NYABUTO KEMBERO V SINGH SHEIKH MUSDAF
    CA NO NAI 152 OF 2012 (UR 113/2012)

    Balancing competing interests in rule 115 applications; access to justice

On appeal from
High Court at Nairobi
HCCC No. 1705 of 1997
Jurisdiction invoked
Rule 115 of the Court of Appeal Rules (application for relief from fees and security for costs in an intended appeal)

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, "Ali Mohammed Mwanzia v National Bank of Kenya", Case Analysis (2015). Civil Application No. NAI 126 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/946/eng@2015-02-20

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