Paul Tsalwa Ambeyi v Southern Cross Safaris [2010] KECA 148 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

CIVIL APPLICATION NO.  76 OF 2010

BETWEEN

PAUL TSALWA AMBEYI…………………………………… APPLICANT

AND

SOUTHERN CROSS SAFARIS………………..…………. RESPONDENT

(Application to the Court of Appeal to waiver the payment of court fees and the applicant be allowed to file his intended appeal as a pauper from the ruling of the High Court of Kenya (Ransley J.) delivered on 17th May 2005

in

HIGH COURT MISC. CIV. APP. 983 OF 2004)

*********************

RULING

Paul Tsalwa Ambayi, is the applicant in an application for leave to file an appeal as a pauper, with Southern Cross Safaris as respondent. The application is expressed to be brought under rule 112 of the Court of Appeal Rules, which, as material, provides thus:

“112 (1) If in any appeal from a superior court in its original or appellate jurisdiction in any civil case the court is satisfied on the application of an appellant that he 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…”

without prior payment of the court fees or without security. The rule provides in sub-rule (2) that the Registrar of the court shall be entitled to be heard on any such application. I did not hear the Registrar as I did not consider it necessary to do so in view of what I am going to say hereafter.

The applicant intends to appeal against an order of the superior court made by Ransley J. (as he then was) in High Court Misc. Civil Application No. 983 of 2004, in which the said judge dismissed the applicants application to sue forma pauperis. The learned Judge was not satisfied that the applicant’s intended suit had any possibility of success. The applicant was aggrieved and says he would like to appeal against that refusal but he lacks the money to do so. He requests that I grant him the leave to file an appeal forma pauperis, or in ordinary language, without paying any court fees because he is poor and has no financial or other means for doing so.

The applicant was required to show not only that he lacks the resources to file an appeal but also that his intended appeal is not without merit or differently put that he has an arguable appeal. The applicant was employed as a domestic help of one Burns Lyall. The applicant contends that although the documents show that he was to work for Lyall, his employer was Southern Cross Safaris, the respondent herein. In a letter to him dated 14th February 1991, a copy of which forms part of the record of the application, Burns Lyall sets out the terms of the applicant’s employment. The applicant conceded before me that it is the letter he received when he was employed. However, he contends that although he was to and indeed worked for Burns Lyall, his employer was Southern Cross Safaris, as it was the one which employed him and was meeting his salary and other benefits. He stated orally before me that Burns Lyall was a director of the respondent although he was not going to the company premises to perform any duties. He had been involved in a serious accident which crippled him.

The applicant also exhibited a copy of a certificate of service to show he was an employee of Burns Lyall from March 1989 to June 2004. And by a letter on Mr. Burns Lyall’s letter head, and signed by the applicant with Simon Penfold as a witness, the applicant confirms therein that he was paid a total of Kshs.79,380/= less some money he owed Mr. Burns and which the latter had lent him, in full and final settlement of his terminal benefits. Although the applicant contends that he was forced to sign the letter when in fact much more money was owed him, I, prima facie, find no basis for accepting his verbal denial. The documents he has exhibited tell a different story. It was for that reason that Ransley J, declined to order that the applicant sue in forma pauperis.

In the above circumstances I have no basis for holding that the applicant’s intended appeal has any merit. Having come to that conclusion, even assuming that the applicant cannot afford the court fees, he has not satisfied the second condition. In the result, I decline to grant the applicant the relief sought and dismiss his application dated 2nd November, 2009. I make no order as to costs. For purposes of clarity, this order does not preclude the applicant from appealing if he can obtain resources for doing so.

Dated and delivered at Nairobi this 16th day of July, 2010

S.E.O. BOSIRE

…………………….

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR