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Court of AppealPartially AllowedCivil Application E160 of 2022· [2022] KECA 1189 (KLR)

Muigai v SKF Kenya Limited

Court of Appeal
28 October 2022
AAA Ali-Aroni
954 words in judgment
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The bottom line

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The Court of Appeal paused a Kenyan woman's fee-waiver appeal request, ruling she must first prove with evidence that she genuinely cannot afford court fees.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by Ali-Aroni JA on an application by Terry Muigai seeking leave to appeal as a pauper against the judgment of Nzioki wa Makau J in ELRC Cause No. 1254 of 2015 (delivered 6 October 2021), together with an extension of time to file and serve her memorandum and record of appeal. The application was brought under Article 159 of the Constitution and rules 4, 39, 42, 43 and 115 of the Court of Appeal Rules. The applicant asserted she was unemployed and unable to pay assessed fees of Kshs.100,400, but attached no evidence of her indigence. The court applied Peter Onditi Ogugu, holding that a party seeking dispensation from court fees must demonstrate indigence by evidence. It also followed Jane Njoki Gichuru and Benson Mbuchu Gichuhi, holding that under rule 115(2) the Registrar is entitled to be heard and that a pauper application should be preceded by a Registrar's inquiry and report. The court accordingly allowed the first prayer in part by directing the Registrar to investigate the applicant's status and file a report within 21 days, and placed the prayers for pauper leave and extension of time on hold pending that report, after which the file is to be placed before a single judge. No express costs order was made. The decision below was not disturbed; this ruling concerns only the procedure for the intended appeal.

Key legal issues

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01

Procedure for pauper appeals under rule 115 (now rule 120)

Holding

The Registrar's inquiry and report must precede the hearing of a pauperism application by a single judge

Reasoning

Relying on Benson Mbuchu Gichuhi and Jane Njoki Gichuru, the court held that rule 115(2) entitles the Registrar to be heard, and a single judge hearing a pauper application without the Registrar's report errs; the matter must be heard de novo after the report.

p. 2
02

Evidential burden on an applicant claiming indigence

Holding

An applicant must attach evidence of lack of means; mere assertion is insufficient

Reasoning

The applicant attached no evidence supporting her claim of unemployment and inability to pay assessed fees of Kshs.100,400. Following Peter Onditi Ogugu, indigence must be demonstrated by evidence before fees are dispensed with.

p. 2

Legal principles established

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  • A party seeking dispensation from court fees must demonstrate indigence by evidence
  • An application to appeal as a pauper must first be the subject of a Registrar's inquiry and report before a single judge hears it

Court orders

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  1. 1.The Registrar is directed to investigate the status of the applicant in relation to the application to proceed as a pauper and file a report within 21 days
  2. 2.The Registrar shall thereafter cause the file to be placed before any single judge of the court for hearing of the other two prayers

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Court of Appeal Rulesrules 4, 39, 42, 43, 109, 115, 120

Cases cited (3)

  • Peter Onditi Ogugu v Allpack Industries Limited & Another
    (2014)

    A party seeking waiver of court fees must demonstrate indigence by evidence.

  • Jane Njoki Gichuru v The Attorney General & Another
    Civil Application No. 75 of 2020

    Similar pauper application allowed; Registrar's inquiry to precede hearing.

  • Benson Mbuchu Gichuhi v Norwegian Peoples Aid
    (2012) eKLR

    Hearing of pauper application could only proceed after the Deputy Registrar's report on the applicant's status.

On appeal from
Employment and Labour Relations Court at Nairobi
ELRC Cause No. 1254 of 2015
Jurisdiction invoked
Article 159 of the Constitution and rules 4, 39, 42, 43 and 115 of the Court of Appeal Rules

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, "Muigai v SKF Kenya Limited", Case Analysis (2022). Civil Application E160 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1189/eng@2022-10-28

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