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Case Brief · caselaw.co.ke
Supreme CourtDismissedCivil Application E003 of 2023

Wafula v Director of Public Prosecutions & 149 others

Supreme Court of Kenya
16 June 2023
794 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Supreme Court rejects fee waiver for skipping Registrar's first step.

What this practically means

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The applicant wanted to file a case without paying fees, claiming financial hardship. However, the Supreme Court dismissed his request because he did not follow the correct procedure. He should have first applied to the Registrar for a fee waiver. If the Registrar refused, he could then ask a single judge to review that decision. The single judge's decision is final. By going directly to the full court, his application was improperly filed and dismissed. No costs were ordered.

Executive summary

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The applicant, Benjamin Barasa Wafula, acting in person, filed a notice of motion dated February 27, 2023 seeking a waiver of court fees to prosecute an originating motion dated February 21, 2023. He claimed financial inability due to termination of employment from Pan African Paper Mills (EA) Company Ltd in 2003 and subsequent difficulty securing work. The originating motion sought various declarations and orders, including the reinstatement of a Supreme Court criminal petition and transfer of certain respondents. The Supreme Court, in a unanimous decision by a five-judge bench, dismissed the application. The court held that the applicant had failed to follow the correct procedure under Rule 63(2) of the Supreme Court Rules, 2020, which requires an initial application to the Registrar for fee waiver, with any review to a single judge whose decision is final. Additionally, the court found that it lacked jurisdiction to grant the application because the originating motion sought to review a final decision of a single judge, which could not be revisited. The court ordered no costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant had invoked the correct procedure for seeking waiver of fees under Rule 63(2) of the Supreme Court Rules, 2020
  2. 2.Whether the court had jurisdiction to grant the application for waiver of fees to prosecute an originating motion that sought to review a final decision of a single judge

Key legal issues

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01

Whether the applicant followed the correct procedure for seeking a fee waiver under the Supreme Court Rules, 2020

Holding

The applicant failed to follow the correct procedure by filing a motion directly to the court instead of first applying to the Registrar under Rule 63(2), and then seeking review from a single judge if aggrieved.

Reasoning

The court noted that Rule 63(2) of the Supreme Court Rules, 2020 empowers the Registrar to permit a party to lodge a matter without paying fees if satisfied that the party lacks means. Any party aggrieved by the Registrar's decision must apply for review to a single judge, whose decision is final under Rule 6(2) and (3). The applicant bypassed this procedure by filing a motion directly to the court, which was procedurally improper.

02

Whether the court had jurisdiction to grant the application for fee waiver

Holding

The court lacked jurisdiction because the originating motion sought to review a final decision of a single judge, which the court could not revisit.

Reasoning

The Deputy Registrar had dismissed the applicant's plea to lodge pleadings, and a single judge had declined to review that decision. The single judge's decision was final under Rule 6(2) and (3) of the Supreme Court Rules, 2020. Granting the fee waiver to prosecute an originating motion that sought to review that final decision would be an action in vain, as the court had no jurisdiction to revisit it.

Legal principles established

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  • Under Supreme Court Rules 2020, a fee waiver application must first be made to the Registrar.
  • If the Registrar refuses, the party must seek review from a single judge, whose decision is final.
  • The Supreme Court lacks jurisdiction to revisit a final decision of a single judge under Rule 6(2) and (3).
  • A party cannot bypass the prescribed procedure by filing a motion directly to the full court.
  • The court will not grant a fee waiver if the underlying motion challenges a final, unreviewable decision.

Court orders

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  1. 1.The application dated February 27, 2023 seeking waiver of fees to prosecute an originating motion dated February 21, 2023 is hereby dismissed.
  2. 2.There shall be no orders as to costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya
Supreme Court criminal petition No E032 of 2022
Jurisdiction invoked
Rule 63(2) of the Supreme Court Rules, 2020

Relief refused

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Waiver of fees to prosecute the originating motion dated February 21, 2023

The applicant failed to invoke the correct procedure under Rule 63(2) of the Supreme Court Rules, 2020, and the originating motion sought to review a final decision of a single judge, which the court had no jurisdiction to revisit.

Costs

There shall be no orders as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The above-quoted provision confers powers on the Registrar to entertain an application for request for waiver of fees. Any party aggrieved by the decision of the Registrar is permitted to apply for review to a single judge whose decision shall be final by dint of rule 6(2) and (3) of the Supreme Court Rules, 2020.
p. 3 Procedure for fee waiver under Supreme Court Rules
That decision is final as explained above and therefore granting the present application would be an action in vain. As a consequence, we have no jurisdiction under the above rule to revisit that decision.
p. 3 Finality of single judge's decision and lack of jurisdiction
The application dated February 27, 2023 seeking waiver of fees to prosecute an originating motion dated February 21, 2023 is hereby dismissed.
p. 3 Final orders dismissing the application
There shall be no orders as to costs.
p. 3 Costs order

Key timeline

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Before February 2023
Deputy Registrar dismissed the applicant's plea to lodge pleadings without fees.
Before February 2023
A single judge declined to review the Deputy Registrar's decision.
2023-02-21
Applicant filed an originating motion seeking various declarations and orders.
2023-02-27
Applicant filed a notice of motion seeking waiver of court fees to prosecute the originating motion.
Judgment date not provided
Supreme Court dismissed the fee waiver application, finding no jurisdiction.

Practical implications

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For lawyers

Follow strict procedural hierarchy

When seeking a fee waiver in the Supreme Court, always start with the Registrar under Rule 63(2). If refused, the only recourse is review by a single judge under Rule 6(2). Do not skip these steps or file directly to the full bench, as the court will dismiss for lack of jurisdiction. This case reinforces that the single judge's decision is final and cannot be appealed.

For businesses

Litigation costs must follow rules

If your business faces financial constraints and needs a fee waiver in the Supreme Court, ensure you follow the correct two-step process: first to the Registrar, then to a single judge. Bypassing this procedure will result in dismissal and wasted time. Also, note that once a single judge rules, that decision is final, so plan your strategy accordingly.

For individuals

Self-represented litigants: follow steps

As a self-represented individual, you must follow the Supreme Court's rules exactly. To get a fee waiver, apply to the Registrar first. If refused, you can ask a single judge to review. Do not go straight to the full court. The single judge's decision is final, so you cannot appeal it. This case shows that even financial hardship does not excuse skipping the procedure.

Frequently asked questions

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How do I apply for a fee waiver in the Kenya Supreme Court?+

You must first apply to the Registrar of the Supreme Court under Rule 63(2) of the Supreme Court Rules, 2020. If the Registrar refuses, you can ask a single judge to review that decision. The single judge's decision is final. Do not file a motion directly to the full court.

Can I appeal a single judge's decision on fee waiver in Kenya?+

No. Under Rule 6(2) and (3) of the Supreme Court Rules, 2020, the decision of a single judge on a review of the Registrar's fee waiver decision is final. The Supreme Court has no jurisdiction to revisit that decision, as confirmed in the Benjamin Barasa Wafula case.

What happens if I file a fee waiver motion directly to the Supreme Court in Kenya?+

The court will dismiss your application because you skipped the required first step of applying to the Registrar. The court lacks jurisdiction to hear the matter unless you have followed the proper procedure under Rule 63(2) and, if needed, review by a single judge.

Is the Supreme Court's decision on fee waiver final in Kenya?+

Yes, once a single judge makes a decision on review of the Registrar's fee waiver refusal, that decision is final and cannot be appealed. The full Supreme Court cannot revisit it. The applicant in Benjamin Barasa Wafula v. Pan African Paper Mills learned this when his application was dismissed.

Cite this brief

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Cite this brief

Caselaw, "Wafula v Director of Public Prosecutions & 149 others", Case Analysis (2023). Civil Application E003 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/48/eng@2023-06-16

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