Ezekiel Ngare v Douglas Kahara [2001] KECA 281 (KLR)

REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAKURU (CORAM: O'KUBASU, J.A. (IN CHAMBERS)) CIVIL APPLICATION NO. NAI. 259 OF 2000 BETWEEN

EZEKIEL NGARE .......................................APPLICANT AND DOUGLAS KAHARA ......................................RESPONDENT

(Application for leave to appeal as a pauper in an intended appeal from a Judgment of the High Court of Kenya at Kitale (Justice Nambuye) dated 13th day of April, 2000 in H.C.C.C. NO. 34 OF 1997) ************** R U L I N G

This is an application by way of Notice of Motion brought under rule 112of this Court's Rule in which the applicant Ezekiel Ngare is seeking to be allowed to appeal as a pauper in the Land Case No. 240 of 1997. There is a supporting affidavit in which the applicant explains how he is unable to pay for court fees as he is a poor person. Mr. Onderu for the Attorney General has opposed this application on the ground that even if the application had to be granted it would amount to an exercise in futility since the judgment to be appealed from did not comply with Order XXRULE 3(1) of the Civil Procedure Rules.

Mr. Chebii who was kind enough to bring the judgment of High Court to my attention stated that his client was not party to the suit and hence the application ought to be dismissed or struck out. In this application it is the desire of the applicant to pursue this matter as a pauper. He has indicated that due to his financial condition he would not be able to pay court fees. In theHigh Court Civil Suit No. 34 of 1997 Kitale and 218 of 1996 at Eldoret, the parties were Ezekiel Ngare Wanjohi as the plaintiff and Leba Inyangala and Attorney General as defendants.

These are the parties in that suit in which the judgment of Nambuye, J. appears. At the moment this Court is not interested in the merits of the intended appeal but at the same time the applicant should not be allowed to drag into this dispute parties who are not involved. Hence the application to file appeal as a pauper is granted but the name of Douglas Kahara is struck out.

Dated and delivered at Nakuru this 20th day of February, 2001.

E. O'KUBASU ......... JUDGE OF APPEAL

I certify that this is a true copy of the original. DEPUTY REGISTRAR