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Court of AppealPartially AllowedCivil Application NAI. No. 126 of 2011· [2015] KECA 985 (KLR)

Ali Mohammed Mwanzia v National Bank of Kenya

Court of Appeal
16 January 2015
PWP.N. Waki
1,112 words in judgment
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The bottom line

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Kenya's Court of Appeal reinstated a poor litigant's fee-waiver application, ruling that the Registrar must be heard before a judge decides such requests.

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 Waki, JA, determining an application to reinstate an application to sue as a pauper that had been dismissed on 1st February 2012, in an intended appeal from a ruling of Koome, J in H.C.C.C. No. 1705 of 1997. The applicant, acting in person, moved under Rule 115 of the Court of Appeal Rules 2010 seeking exemption from paying court fees and depositing security for costs, and also sought leave to file a memorandum and record of appeal out of time. The court restricted itself to the Rule 115 prayer, holding that an extension-of-time prayer cannot be brought under that rule and duplicated a prior application by the applicant's then advocates. The court set out the text of Rule 115(1), which permits relief from fees and security for an appellant lacking means whose appeal is not without reasonable possibility of success, and noted that sub-rules (2) to (4) are mandatory, including the Registrar's entitlement to be heard. The application had neither been served on the Registrar nor was the Registrar heard. Following Benson Mbuchu Gichuki v Norwegian Peoples Aid [2012] eKLR, the judge made a similar finding and order: the applicant is to appear before the Deputy Registrar within fourteen days for investigation of his status; the Deputy Registrar is to file a report within fourteen days; and the matter is to be placed before any single judge other than Waki, JA for hearing de novo. There was no order as to costs. The decision below was effectively set aside in part by reinstating the application for fresh processing.

Key legal issues

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01

Mandatory procedural requirement of Rule 115(2)

Holding

The application was not served on the Registrar nor was the Registrar heard, breaching the mandatory sub-rule; the application must be heard de novo after the Registrar's report.

Reasoning

Rule 115(1) confers discretion to relieve an indigent appellant from fees and security, but sub-rules (2)-(4) are mandatory. The Registrar is entitled to be heard and must investigate the applicant's means. Following Benson Mbuchu Gichuki v Norwegian Peoples Aid, the hearing could only proceed after the Deputy Registrar's report on the applicant's status.

p. 2
02

Scope of relief under Rule 115

Holding

Rule 115 permits exemption from court fees and security for costs where the appellant lacks means and the appeal has reasonable possibility of success, but does not cover leave to appeal out of time.

Reasoning

The court quoted Rule 115(1) in full, showing relief extends to lodging without fees or security and preparation of the record by the registrar, conditional on an undertaking to pay from any recovery. A prayer for extension of time falls under Rule 4, not Rule 115, and was the subject of a separate prior application.

p. 2

Legal principles established

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  • An application under Rule 115 must be served on and heard with the input of the Registrar, as required by Rule 115(2); a single judge deciding without the Registrar's input errs.

Court orders

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  1. 1.The applicant shall appear before the Deputy Registrar of this court in the next fourteen days for purposes of further investigations on his status
  2. 2.The Deputy Registrar shall prepare and file a report within fourteen days and place the matter before any single judge of this court (other than Waki JA) for hearing de novo
  3. 3.No order as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal Rules 2010Rule 115(1)
  • Court of Appeal Rules 2010Rule 115(2)
  • Court of Appeal Rules 2010Rule 115(3)
  • Court of Appeal Rules 2010Rule 115(4)
  • Court of Appeal Rules 2010Rule 107
  • Court of Appeal Rules 2010Second Schedule

Cases cited (1)

  • Benson Mbuchu Gichuki v Norwegian Peoples Aid
    [2012] eKLR

    An application under Rule 115 must be heard with the Deputy Registrar's input and report before a single judge decides it.

On appeal from
High Court of Kenya at Milimani Commercial Courts, Nairobi
H.C.C.C. No. 1705 of 1997
Jurisdiction invoked
Rule 115 of the Court of Appeal Rules 2010 (application to reinstate an application to sue as a pauper dismissed on 1st February 2012)

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 NAI. No. 126 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/985/eng@2015-01-16

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