Ndiso v Wahome & 2 others [2023] KECA 1523 (KLR)

Ndiso v Wahome & 2 others (Civil Appeal (Application) E001 of 2023) [2023] KECA 1523 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KECA 1523 (KLR)

Republic of Kenya

In the Court of Appeal at Mombasa

Civil Appeal (Application) E001 of 2023

GV Odunga, JA

December 8, 2023

Between

Titus Musembi Ndiso

Appellant

and

Rureri Wahome

1st Respondent

Julius M Nkanata t/a Zebra Safaris Ltd

2nd Respondent

The Attorney General

3rd Respondent

(An Application for leave to Appeal as a Pauper in accordance with Rule 115(1) of the Court of Appeal Rules, 2010 in an Intended Appeal against the Judgment and Decree of the High Court of Kenya at Mombasa in HCCC No. 102 of 2003 delivered by P.J Otieno on 12th April, 2019 Civil Suit 102 of 2003 )

Ruling

1. The Applicant, Titus Musembi Ndiso, by an application dated 16th February, 2023 seeks an order that he be allowed to file his Appeal without paying the court fees of Kshs. 100,000/- assessed by the Court vide invoice No. E2BCQRV2 and that the court fees be recovered from any award that the Applicant will be awarded and upon successful recovery of the same from the Respondent. He has further sought for an order for extension of time within which to lodge his appeal.

2. According to the Applicant, upon presenting the Record of Appeal at the Registry, he was informed that the filing fees had been under-assessed and the Officer issued him with another invoice in the sum of Kshs. 100,000/- from Kshs. 1,500 which was paid by his advocates after an assessment from the Judiciary E-Filing Portal. He avers that as a result of the injury he sustained, he is unable to work or have a source of income and depends on his family for livelihood hence it is not possible for him to raise Kshs. 100,000/- or any amount at all.

3. Regarding the order to extend time to file the appeal out of time, he avers that the delay came about when he was looking for the fees to file the appeal which efforts have proved fruitless. He avers that once the appeal is determined in his favour he will pay the amount which will be recovered from the Respondents.

4. On 12th March, 2023, Nyamweya J. ordered that pursuant to Rule 120(2) of the Court of Appeal Rules, 2022, the application be placed before the Deputy Registrar, Hon. H. Andika for purposes of compiling a report on the Applicant’s ability to pay the requisite court fees. On 7th June, 2023, the Deputy Registrar in his report recommended that the Applicant be allowed to lodge his appeal without making any payment and left it to the court to make any additional orders thereof.

5. I heard the application on this Court’s virtual platform on 4th December, 2023 when Learned Counsel, Mr Tindika, appeared for the Applicant. There was no representation on behalf of the Respondent notwithstanding the fact that service of the hearing notice was duly effected on their advocates on record.

6. I have considered the application. Rule 120 of the Rules of this Court provides that:1. If, in any appeal from a superior court, in exercise of its original or appellate jurisdiction in any civil case, the Court is satisfied on the application of an appellant that the appellant lacks the means to pay the required fees or to deposit the security for costs and that the appeal is not without reasonable possibility of success, the Court may, by order, direct that the appeal may be lodged—a.without prior payment of fees of Court, or on payment of any specified amount less than the required fees; orb.without security for costs being lodged, or on lodging of any specified sum less than the amount fixed by rule 109, and may order that the record of appeal be prepared by the registrar of the superior court without payment therefor or on payment of any specified sum less than the fee set out in the Second Schedule conditionally on the intended appellant undertaking to pay the fees or the balance of the fees out of any money or properly the appellant may recover in or consequence of the appeal.2. The Registrar shall be entitled to be heard on any such application.3. No fee shall be payable on the lodging of any such application.4. The Registrar shall have power to take such action as he or she may think necessary to enforce any undertaking given in accordance with sub-rule (1).

7. In light of the report made by the Deputy Registrar of this Court I am satisfied that the Applicant is deserving of this Court’s exercise of its discretion under Rule 120 aforesaid. Accordingly, I grant the Applicant to file his Appeal without paying the court fees of Kshs. 100,000/- assessed by the Court vide invoice No. E2BCQRV2 and that the court fees be recovered from any award that the Applicant will be awarded upon successful recovery of the same from the Respondent.

8. Since the delay in filing his record of appeal was due to his inability to raise the above sum, an obstacle which he has now surmounted, I hereby extend time to the Applicant to file and serve his record of Appeal with a period of 14 days from the date of this ruling.

9. It is so ordered.

DATED AND DELIVERED AT MALINDI THIS 8TH DAY OF DECEMBER, 2023. G. V. ODUNGA..................................JUDGE OF APPEALI certify this to be a true copy of the originalSingedDeputy Registrar