Roseline Boke Motatiro v Thomas Chacha Gati & Standard Chartered Bank Kenya Ltd [2018] KEELC 2261 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND  COURTAT NAIROBI

ELC MISC. APPLICATION NO. 8 OF 2016

ROSELINE BOKE MOTATIRO...........................................PLAINTIFF

-VERSUS-

THOMAS CHACHA GATI..........................................1ST DEFENDANT

STANDARD CHARTERED BANK KENYA LTD...2ND DEFENDANT

RULING

What is before me is the plaintiff’s application dated 20th January, 2016 seeking leave of the court to sue as a pauper.  The application is supported by the affidavit and further affidavit sworn by the applicant on 20th January, 2016 and 18th March, 2016 respectively.  The application is accompanied by a statement of pauperism and the particulars of claim both dated 20th January, 2016.  In her statement of pauperism, the applicant has stated that she is unemployed and unable to make ends meet.  The applicant has stated that she relies mostly on well-wishers for her sustenance.  The applicant has stated that she does not have movable or immovable property and as such she has no means of paying court fees for the suit she intends to institute against the defendants.  The applicant has annexed to her affidavit in support of the application a letter from her area Chief confirming her poverty.

In her particulars of claim, the plaintiff has stated that she is married to the 1st defendant and that they have three (3) children.  The applicant has stated that the 1st defendant is the registered proprietor of all the parcel of land known as L.R No. Nairobi/Block 111/1215 (“the suit property”).  The applicant has averred that the suit property constitutes her matrimonial home and that she occupies the same with her family.

The applicant has averred that on or about 24th December, 2013, the 1st defendant without the applicant’s knowledge or consent took a further mortgage loan from the 2nd defendant on the security of the suit property. The applicant has averred that her purported consent to the said mortgage was forged by the 1st defendant and that the 2nd defendant accepted the said consent without conducting due diligence to confirm that she had indeed signed the same.  The applicant has averred that the 1st defendant who was an employee of the 2nd defendant was sacked in January, 2015 and that the 1st defendant has since then remained unemployed.  The applicant has averred that she learnt that the 1st defendant had executed a further charge over the suit property in favour of the 2nd defendant when the 1st defendant brought a prospective purchaser to view the suit property as he wanted to sell the same to pay off the loan due to the 2nd defendant.  The applicant has contended that the charge that was executed by the 1st defendant in favour of the 2nd defendant was tainted with fraud and that the 2nd defendant was negligent in accepting the purported spousal consent that was presented to it by the 1st defendant.

At the hearing of the application, the applicant told the court that she was unemployed and that she had three (3) children.  The applicant stated that she was unable to pay court fees for the intended suit against the defendants.The application was opposed by the 2nd defendant through grounds of opposition dated 29th January, 2016.  The 2nd defendant denied that the applicant is a pauper.  The defendant contended that the application offends Order 33 Rule 18 of the Civil Procedure Rules, 2010.  The 2nddefendant contended that the claim by the applicant does not disclose a cause of action against the 2nd defendant.  The 2nd defendant termed the application an abuse of the court process.

In his submissions in opposition to the application, the 2nd defendant’s advocate reiterated the contents of the 2nd defendant’s grounds of opposition.  The 2nd defendant’s advocate admitted that the application was properly before the court.  He submitted however that the applicant had failed to establish that she is a pauper. He submitted that the applicantdid not place sufficient material before the court on the basis of which the court could ascertain her pauperism.  The 2nd defendant’s advocate submitted further that the applicant’s claim does not disclose a cause of action against the 2nd defendant in that the applicant failed to demonstrate that her signature on the spousal consent to the further charge was forged. The 2nd defendant submitted that there was no dispute in relation to the first charge that was executed by the 1st defendant when spousal consent was not required.  Counsel urged the court to dismiss the application.

I have considered the application together with the supporting documents. Under Order 33 of the Civil Procedure Rules, the court is supposed to refuse to grant leave to an applicant to sue as a pauper on the following grounds:

Where the application is not brought in accordance with the prescribed rules;

Where the applicant is not a pauper;

Where the applicant has disposed of its property within a period of two (2) months preceding the bringing of the application with a view to apply for permission to sue as a pauper;

Where the allegations does not show a cause of action;

Where the applicant has entered into an agreement in respect of the property the subject of the proposed suit under which any person has acquired an interest in the subject matter.

I am satisfied that the applicant’s application has satisfied the conditions for granting the leave sought.  It was not contested that the application is properly before the court.  On the issue as to whether or not the applicant is a pauper, no affidavit was filed by the respondents to controvert the averments contained in the applicant’s affidavit that she is a pauper and that she is not able to raise the court fees.  The applicant’s contention that she is unemployed and that she has no movable or immovable assets was not controverted by the respondents.  There was also no evidence that the applicant had disposed of any of her properties prior to bringing the application or that she had entered into any contract in relation to the suit property.

For the foregoing reasons, I find merit in the Notice of Motion dated 20th January, 2016.  The application is allowed as prayed.

Dated and delivered at Nairobi this 5th day of July 2018

S. OKONG’O

JUDGE

Ruling read in open court in the presence of

The Applicant/Plaintiff in person

N/A for the 1st Defendant

Mr. Karanja h/b Mr. Nyaburi for the 2nd Defendant

Catherine Court Assistant