[2005] KECA 47 (KLR)
The court found that the applicant had demonstrated lack of means to pay the required court fees or deposit security for costs, based on his affidavit and oral submissions. The respondent failed to provide evidence to the contrary. The Deputy Registrar confirmed the estimated fees and supported conditional relief....
Source-derived case information.
- Citation
- [2005] KECA 47 (KLR)
- Parties
- Applicant: Richard Akwesera Onditi; Respondent: Kenya Commercial Finance Co. Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 234 of 2005
- Procedural Posture
- Civil Application / Application for Relief From Payment of Fees and Security for Costs Pending Appeal
- Outcome
- Application allowed with conditions.
- Legal Topics
- Waiver of Court Fees, Security for Costs, Indigent Litigants
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Richard Akwesera Onditi
Applicant
Kenya Commercial Finance Co. Ltd
Respondent
Procedural Posture
Civil Application / Application for Relief From Payment of Fees and Security for Costs Pending Appeal
Legal Issues
- 1 Whether the applicant should be granted relief from payment of court fees and security for costs under rule 112 of the Court of Appeal Rules.
- 2 Whether the applicant has demonstrated lack of means to pay the required fees or deposit security for costs.
- 3 Whether the appeal has a reasonable possibility of success.
Ratio Decidendi
The court found that the applicant had demonstrated lack of means to pay the required court fees or deposit security for costs, based on his affidavit and oral submissions. The respondent failed to provide evidence to the contrary. The Deputy Registrar confirmed the estimated fees and supported conditional relief. The court was satisfied that the proposed appeal was not without reasonable possibility of success. Accordingly, the court exercised its discretion under rule 112 of the Court of Appeal Rules to grant the applicant relief from payment of court fees and security for costs, conditional upon an undertaking to pay such fees from any recovery resulting from the appeal.
Court Disposition
Application allowed with conditions.
Orders
- The applicant may lodge the appeal without prior payment of court fees and without lodging security for costs.
- The relief is conditional upon the applicant furnishing to the Deputy Registrar an undertaking to pay the fees or balance thereof out of any money or property recovered in or as a consequence of the appeal.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
CORAM: DEVERELL, J.A. (IN CHAMBERS)
CIVIL APPLICATION NAI 234 OF 2005 (KSM.27/05 UR)
BETWEEN
RICHARD AKWESERA ONDITI …………………………………….. APPLICANT
AND
KENYA COMMERCIAL FINANCE CO. LTD ……………...………RESPONDENT
(Application to be allowed reliefs from payment of fees and
security for costs in an appeal from a judgment and decree
of the High Court of Kenya at Kakamega (Mr. Justice Tanui J)
dated 18th November, 2001
in
HCCC NO. 65 OF 1993)
************
R U L I N G
This is an application by Mr. Richard Akwesera Onditi who appeared before me in person. He seeks relief pursuant to rule 112 of the Court of Appeal Rules from the payment of fees to the Court and from furnishing security for costs.
The respondent, Kenya Commercial Bank was represented by Miss Konuche.
The relief sought was in relation to two matters intended to be brought before the Court. The first was an application for extension of time to lodge an appeal and the second was the substantive appeal itself.
The applicant stated that his only source of income was his pension amounting to Shs. 2,975. 80 per month. He claimed that he had many unemployed children and grand children. He said he had insufficient to pay for the inputs needed to make substantial money from the disputed land, which he occupies.
He had been told that the Court fees required for an appeal which involved in excess of Shs. 1. 6 million would be about Shs. 100,000 which was confirmed by the Deputy Registrar Mr. Luvuga before me in accordance with rule 112 (2)of the Rules. Miss Konuche opposed the application in so far as it is related to the relief from the requirement to provide security for costs arguing that the applicant should be able to pay the court fees and provide security for costs out of the pension and the land but there was no affidavit filed by the respondents and it is difficult to see how this could be achieved.
Having heard the submissions of both parties and the Deputy Registrar, who said that if relief was granted it should be conditional upon the applicant undertaking that he would pay the fees or the balance of the fees out of any money or property he may recover in or in consequence of the appeal, I am satisfied that the applicant lacks the means to pay the required fees or to deposit security for costs. Having read the affidavit of the applicant sworn on 28th July, 2005 and the proposed memorandum of appeal exhibited to that affidavit. I am satisfied that the appeal is not without reasonable possibility of success.
I therefore hereby direct that the appeal may be lodged without prior payment of fees of Court and without security for costs being lodged. The directions are conditional upon the applicant furnishing to the Deputy Registrar an undertaking signed by the applicant to pay the fees or the balance of the fees out of any money or property he may recover in or in consequence of the appeal. The costs of this application shall be in the appeal.
Dated and delivered at Kisumu this 1st day of December, 2005.
W. S. DEVERELL
…………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR