Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedMotion dated 16th March, 2017 (intended appeal from Constitutional Petition before Mativo J)· [2019] KECA 671 (KLR)

Thomas Makongo Chagoche v Kenya National Examination Council [2019] KECA 671 (KLR)

Court of Appeal of Kenya
5 April 2019
1,357 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal dismissed a request to appeal for free because the applicant gave no current evidence of genuine poverty.

What this practically means

#

Executive summary

#
Thomas Makongo Chagoche, acting in person, moved the Court of Appeal under Rule 115 of the Court of Appeal Rules for leave to lodge an intended appeal in forma pauperis against the High Court's dismissal (Mativo J, 17th January 2018) of his constitutional petition against the Kenya National Examination Council. The dispute arose from KNEC's re-issue of his KCSE result slip, which he claimed bore wrong results; KNEC had him arrested and charged under sections 357(a) and (b) of the Penal Code, charges on which he was acquitted. Sichale JA restated the two indispensable limbs of a Rule 115 application: the applicant must demonstrate by evidence, not mere assertion, a present lack of means, and the intended appeal must have a reasonable possibility of success. The court emphasised that the Registrar is a mandatory party under Rule 115(2) whose input on the applicant's current status is crucial, citing prior decisions striking out applications heard without the Registrar. The applicant relied only on a 2015 chief's letter and oral submissions, which could not establish his current indigence. The application was dismissed with no orders as to costs. The ruling binds the High Court and single judges of the Court of Appeal on the evidentiary and procedural prerequisites for in forma pauperis applications.

Key legal issues

#
01

Evidentiary burden on a Rule 115 applicant

Holding

A dry assertion of lack of means is insufficient; the applicant must adduce evidence of current indigence

Reasoning

The court relied on its prior decisions (Benjamin Barasa Wafula and Peter Onditi Ogugu) holding that dispensation from fees is not automatic. Article 48 access to justice must be balanced against the respondent's legitimate interests; the applicant produced only an oral plea and a chief's letter from 2015, predating the application, which could not establish present lack of means.

p. 1
02

Registrar's mandatory participation under Rule 115(2)

Holding

The Registrar's involvement is crucial and mandatory; the single judge may strike out an application determined without the Registrar's input

Reasoning

Rule 115(2) requires the Registrar to be heard on in forma pauperis applications. Citing Onyango v Teachers Service Commission and Benson Mbuchu Gichuki, the court noted that determinations made without the Registrar's report on the applicant's current status are irregular, as the Registrar's investigation provides needed input on the applicant's present means.

p. 2
03

Merit threshold and balancing exercise

Holding

Leave under Rule 115 is granted only where the intended appeal has a possibility of success; the rule is not a licence to vex opponents

Reasoning

Adopting M'Inoti JA's reasoning in Jason Nyabuto Kembero, the court held that Rule 115 is not for academic or theoretical pursuits. The court must balance the genuine grievance of a financially handicapped applicant against the respondent's costs, recoverability of costs, judicial resources and other litigants' expectations. Access to justice under Article 48 is owed to both disputing parties.

p. 1

Legal principles established

#
  • A Rule 115 applicant must prove indigence by evidence, not by mere assertion
  • The Registrar is a mandatory party to a Rule 115 application and must be heard before it is determined
  • Indigence must be established as at the time of the application, on circumstances as they currently exist

Court orders

#
  1. 1.The application for leave to appeal in forma pauperis is dismissed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Court of Appeal RulesRule 115
  • Court of Appeal RulesRule 115(2)
  • Penal CodeSection 357(a)
  • Penal CodeSection 357(b)
  • Constitution of Kenya, 2010Article 48

Cases cited (6)

  • Benjamin Barasa Wafula v Moses Chetame Sikanga & 22 others
    [2015] eKLR
  • Peter Onditi Ogugu v Allpack Industries Limited & another
    [2014] eKLR
  • Jason Nyabuto Kembero v Siraj Sheikh Musdaf
    [2013] eKLR
  • Thomas Joseph O. Onyango & another v Teachers Service Commission
    [2016] eKLR
  • Thomas Joseph O. Onyango v Attorney General & another
    [2016] eKLR
  • Benson Mbuchu Gichuki v Norwegian Peoples Aid
    [2012] eKLR
On appeal from
High Court of Kenya (Constitutional Court)
Amended petition filed 14th June, 2016
Jurisdiction invoked
Rule 115 of the Court of Appeal Rules (application to appeal in forma pauperis)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Thomas Makongo Chagoche v Kenya National Examination Council [2019] KECA 671 (KLR)", Case Analysis (2019). Motion dated 16th March, 2017 (intended appeal from Constitutional Petition before Mativo J). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/671/eng@2019-04-05

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