[2016] KEHC 7036 (KLR)
The court found that the application was properly filed under Order 33 of the Civil Procedure Rules and that the applicant had provided credible evidence of his lack of means, including medical documentation and evidence of loss of property and livelihood. The court noted that the respondent's allegations regarding...
Source-derived case information.
- Citation
- [2016] KEHC 7036 (KLR)
- Parties
- Applicant: Kalaine Kachiuki; Respondent: Misheck Ithalii; Respondent: Japhet Nkonge t/a Japhet Nkonge Auctioneers
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 38 of 2014
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Application for Leave to Sue as a Pauper
- Outcome
- Interlocutory order; application not rejected, respondent granted seven days to file affidavit in opposition to pauper status.
- Judges
- F Gikonyo
- Legal Topics
- Pauper Proceedings, Access to Justice, Court Fees Waiver
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kalaine Kachiuki
Applicant
Misheck Ithalii
Respondent
Japhet Nkonge t/a Japhet Nkonge Auctioneers
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Application for Leave to Sue as a Pauper
Legal Issues
- 1 Whether the applicant qualifies as a pauper under Order 33 of the Civil Procedure Rules.
- 2 Whether the applicant lacks sufficient means to pay the prescribed court fees.
- 3 Whether the respondent's allegations of the applicant's means are substantiated.
Ratio Decidendi
The court found that the application was properly filed under Order 33 of the Civil Procedure Rules and that the applicant had provided credible evidence of his lack of means, including medical documentation and evidence of loss of property and livelihood. The court noted that the respondent's allegations regarding the applicant's means were not supported by any affidavit on record. However, in the interest of fairness and to ensure all relevant evidence is considered, the court granted the respondent seven days to file the referenced affidavit. The court held that a final decision on the applicant's pauper status would be made after considering any such affidavit and, if necessary, after...
Court Disposition
Interlocutory order; application not rejected, respondent granted seven days to file affidavit in opposition to pauper status.
Orders
- Respondent to file affidavit in opposition to applicant's pauper status within seven days.
- Affidavit to be treated as evidence in disproof of pauperism.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC APPLICATION NO.38 OF 2014
In the Matter of Application by a Pauper under Order 33 of the Civil Procedure Rules
KALAINE KACHIUKI……………………................................…..…………..APPLICANT
Versus
MISHECK ITHALII………………………...............................………..1ST RESPONDENT
JAPHET NKONGE T/A JAPHET NKONGE AUCTIONEERS………2ND RESPONDENT
RULING
[1] I have before me a Notice of Motion Application expressed to be brought pursuant to Order 33 Rule 1 and 2 of the Civil Procedure Rules in which the Applicant has applied for permission to institute a suit as a pauper. He has also sought that cost of the application to be at the discretion of the court.The major grounds for applying are:
That the applicant is not possessed of sufficient means to enable him pay the court fees prescribed by the law for the institution of suit.
That the applicant has a good claim with overwhelming chances of success as evidenced by the plaint.
That the applicant is also suffering from diabetes and an accident victim and ready to be examined to prove he is a pauper.
[2] Parties filed submissions as directed by the court on 2nd October 2015. I have considered all of the rival submissions and I take the following view of the matter. The basis of this application is Order 33 of the Civil Procedure Rules which is a perfect exemplar of the right to access to justice by all. I will view it as such. From the onset, I must state that this application is aptly filed; accordingly, I see no reason of rejecting it. However, the important question to ask would be whether the Applicant is of sufficient means to pay the fee assessed for the filing of the intended suit. The facts that the Applicant was an accident victim and that he suffered from diabetes are uncontroverted. He has annexed a letter from Kenyatta National Hospital to support his claims. I cannot also doubt his averments that he was previously in good health and owned a welding workshop and hardware; but was closed down by his former landlord. Another thing which is not in dispute: That his properties were carted away and sold illegally by the auctioneer. Indeed the Auctioneers Board found the 2nd Respondent guilty and fined him Kshs 50,000. He took other steps, especially by seeking legal aid from Kituo Cha Sheria. Kituo Cha Sheria then requested the firm of Gikunda Anampiu Advocates to represent him on pro bonobasis. He annexed a letter from Kituo Cha Sheria in which it requesting the firm of Gikunda Anampiu Advocates to represent him. All these things are weighty and relevant material to the court. Nonetheless, I will not grant it straight away because the Respondent has claimed in their submissions that they had deposed in some affidavit that the applicant was a man of means, is a practicing pastor and that there are a myriad of cases against the Respondent in the Tribunal. Although I cannot see any such affidavit on record for the court’s benefit, the issues raised are important. I see no reason of rejecting this application. Nonetheless, I will give the Respondent an opportunity to file the affidavit they alluded to within 7 (seven) days. I will treat the affidavit as evidence in disproof of pauperism by the Respondent. If need be, I will decide whether further examination of the Applicant or any other person or persons shall be necessary. A final decision will ensue soon thereafter. This way, the court will be properly grounded to gauge whether the Applicant should be allowed to sue as a pauper. It is so ordered.
Dated, signed and delivered in open court at Meru this 4th day of
February 2016
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F. GIKONYO
JUDGE
In the presence of:
Applicant in person
No appearance for respondent
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F. GIKONYO
JUDGE