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ELCOtherMisc. Application No. 344 of 2016· [2018] KEELC 4277 (KLR)

Nancy Wanjira Wahome v Issac Ongeri & 2 others [2018] KEELC 4277 (KLR)

Environment and Land Court of Kenya
27 February 2018
MSMunyao Sila
340 words in judgment
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The bottom line

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A Kenyan court refused to approve a pauper suit application until the applicant attached documents proving her land ownership claim.

What this practically means

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Executive summary

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This is an interim order of the Environment and Land Court at Nakuru on the plaintiff's application dated 22 July 2016 for leave to sue as a pauper against three defendants over a dispute concerning plot No. 1099 Oljorai Settlement Scheme (Olesiria Nursery). The plaintiff asserted that she was a beneficiary of the plot, that the proposed first defendant was charged in Criminal Case No. 827 of 2010 (Republic v Isaac Ongeri), that she herself was charged and acquitted in Criminal Case No. 5562 of 2010, and that she had written complaint letters. Munyao Sila J declined to determine the pauper application immediately, holding that he first needed to see the documents underlying these allegations to satisfy himself whether the plaintiff's allegations demonstrate a cause of action under Order 33 Rule 5(d). The court ordered the applicant to annex the documents - the beneficial ownership evidence, both criminal judgments and the complaint letters - to a further affidavit to be filed within 30 days, and directed the file to be mentioned on 23 April 2018 for further assessment of the application. The court also noted the presence of Mr. Kisilah, Advocate, whom the court requested to assist the applicant, who appeared in person. No costs order was made, and the merits of the proposed suit were not determined at this stage.

Key legal issues

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01

Whether the pauper application demonstrates a cause of action under Order 33 Rule 5(d)

Holding

The court deferred determination, directing the applicant to file the supporting documents in a further affidavit within 30 days

Reasoning

The court perused the application and the draft claim but found it necessary to inspect the underlying documents before assessing whether the allegations disclose a cause of action. The applicant claimed beneficial ownership of a plot and referenced two criminal cases and complaint letters, none of which were exhibited. The court adjourned further assessment to a mention date.

p. 1

Legal principles established

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  • An applicant seeking to sue as a pauper must demonstrate a cause of action as required by Order 33 Rule 5(d), and the court may require documentary support before determining the application.

Court orders

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  1. 1.The applicant to annex, in a further affidavit to be filed within 30 days, the documents she relies on, including evidence of her beneficial ownership of plot No. 1099 Oljorai Settlement Scheme, the judgment in Criminal Case No. 827 of 2010 (Republic v Isaac Ongeri), the judgment in Criminal Case No. 5562 of 2010 (Republic v Nancy Wanjira), and her complaint letters
  2. 2.The matter to be mentioned on 23 April 2018 for further assessment of the application dated 22 July 2016

Authorities

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Legislation

  • Civil Procedure RulesOrder 33 Rule 5(d)
Jurisdiction invoked
Order 33 Rule 5(d) of the Civil Procedure Rules (application to sue as a pauper)

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, "Nancy Wanjira Wahome v Issac Ongeri & 2 others [2018] KEELC 4277 (KLR)", Case Analysis (2018). Misc. Application No. 344 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4277/eng@2018-02-27

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