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ELCOtherNot stated in the judgment· [2020] KEELC 1380 (KLR)

Pasogo Welfare Society v George Ngugi Wanjiru [2020] KEELC 1380 (KLR)

Environment and Land Court (High Court)
17 September 2020
815 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court rejected a welfare society's request to sue without paying court fees because the society filed in its own name, through a lawyer, without proof of poverty.

What this practically means

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Executive summary

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Pasogo Welfare Society, through the firm of Enock Otieno & Company Advocates, moved the court by notice of motion dated 4/5/2020 seeking leave under Order 33 of the Civil Procedure Rules to sue as a pauper, supported by an affidavit and statement of pauperism sworn by William Okello, citing reliance on members' contributions affected by Covid-19 containment measures. The court directed the applicant to file its certificate of registration, register of members and members' KRA tax returns; the applicant sought more time and later filed a supplementary affidavit. Justice B M Eboso rejected the application on three grounds. First, a society registered under the Societies Act lacks capacity to institute proceedings in its own name and must sue through its officials; the application was therefore incurably defective. Second, the motion was presented by a law firm in contravention of the mandatory requirement in Order 33 rule 3 that such applications be presented by the applicant in person, with no explanation offered. Third, the applicant failed to demonstrate pauperism with sufficient evidential materials, having produced none of the statutory books of accounts, annual returns or tax returns required of registered societies. The court held it could not properly exercise its jurisdiction to grant leave absent such materials. The notice of motion dated 4/5/2020 was rejected at the ex parte stage, with no order as to costs, and the suit was marked as case closed.

Key legal issues

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01

Capacity of a registered society to litigate in its own name

Holding

A society registered under the Societies Act cannot sue in its own name; it must sue through its officials, and failure renders the application incurably defective

Reasoning

The court held that settled law requires societies to institute proceedings through named officials. Because the present miscellaneous application was brought in the society's own name, it was defective on this ground alone and stood rejected without need to consider other grounds.

p. 2
02

Presentation of a pauperism application by an advocate

Holding

Order 33 rule 3 mandatorily requires the applicant to present the application in person; presentation by a law firm without explanation contravenes the rule

Reasoning

The firm of Enock Otieno & Co Advocates presented the motion on behalf of the society. The court found this in blatant contravention of the mandatory requirement that such applications be presented in person, and noted no explanation was tendered to justify the non-compliance.

p. 2
03

Proof of pauperism

Holding

The applicant failed to adduce sufficient evidence of pauperism, including the statutory accounts, annual returns and tax returns required of registered societies

Reasoning

The court observed that a registered society must keep books of accounts under Section 26 of the Societies Act, file annual returns and accounts, and file annual tax returns. None of these documents was presented to support the claim of pauperism, so the court could not properly exercise its jurisdiction to grant leave.

p. 2

Legal principles established

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  • A society registered under the Societies Act lacks capacity to initiate court proceedings in its own name; proceedings must be brought in the names of its officials
  • An application for leave to sue as a pauper must be presented by the applicant in person under Order 33 rule 3
  • An applicant must place sufficient evidential material, including statutory returns, before the court to prove pauperism

Court orders

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  1. 1.The notice of motion dated 4/5/2020 is rejected at this stage
  2. 2.There shall be no order as to costs
  3. 3.The suit is marked as case closed

Authorities

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Legislation

  • Civil Procedure RulesOrder 33 (including rules 1(2) and 3)
  • Civil Procedure ActSection 82
  • Societies ActSection 26
Jurisdiction invoked
Order 33 of the Civil Procedure Rules (leave to sue as a pauper, in forma pauperis)

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, "Pasogo Welfare Society v George Ngugi Wanjiru [2020] KEELC 1380 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1380/eng@2020-09-17

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