James Mwashori Mwakio v Kenya Commercial Bank Ltd. [1986] KECA 54 (KLR)
The bottom line
#Kenya's Court of Appeal cut appeal fees for a man who couldn't afford them and blocked his arrest over costs until his ability to pay is properly examined.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the undertaking given by the bank on December 14, 1982 not to sell the applicant's house LR 874707/7 could be extended
- 2.Whether the applicant should be allowed to pay reduced appeal fees of Kshs 600.00 instead of the estimated Kshs 20,000.00
- 3.Whether the stay of the warrant of arrest issued against the applicant for non-payment of taxed costs should be maintained
- 4.Whether directions should issue on supply of a copy of the decree of Porter, J
Key legal issues
#Extension of the undertaking not to sell the applicant's house
Refused; the bank is at liberty to apply for discharge of the undertaking, which must be made on notice to the applicant.
The court reiterated its earlier order of January 28, 1986 that after the High Court's determination the respondents may apply for discharge of the undertaking. An extension cannot be granted unilaterally at the applicant's instance alone; the proper procedure is a noticed application by the bank.
Reduced appeal fees for an indigent appellant
Granted; fees fixed at Kshs 600.00 with the balance of fees and security for costs of Kshs 2,000.00 waived, conditional on a written undertaking to pay the balance from any recovery.
Under rule 112(1) of the Court of Appeal Rules the court was satisfied the applicant lacked means, noting his salary and considerable debts. Because the appeal was arguable and not without possibility of success, the court accepted Kshs 600.00 and waived the balance, conditional on payment from any recovery in consequence of the appeal.
Validity of the arrest for non-payment of taxed costs
The stay of the warrant of arrest was justified on the merits; the stay is maintained until the Deputy Registrar re-opens the matter and inquires into the applicant's means and ability to pay by instalments.
Execution by arrest followed rule 105(2) of the Court of Appeal Rules and the certificate of taxation constituted a decree under Order 21 of the Civil Procedure Rules. However, the Deputy Registrar failed to conduct the inquiry required by Order 21 rule 35(1) into poverty or instalment payment, and instead assumed the applicant could pay. There was procedural failure and mutual misunderstanding justifying the stay.
Supply of a copy of the decree of Porter, J
Directions given; either party may apply for the decree under Order 20 Rule 7, and a certified copy may be included in a supplementary record under rule 85(2)A.
The court clarified the procedure after a misunderstanding between the parties over whether a draft decree had been submitted, pointing out that either party to the suit may apply for the decree and that the applicant may proceed himself.
Legal principles established
#- An undertaking given to the court not to sell property cannot be extended unilaterally; the party benefiting must apply for its extension or discharge on notice.
- Before arrest in execution of a decree for costs, the court must inquire whether the judgment-debtor is unable to satisfy the decree because of poverty or other sufficient cause, or whether it should be payable by instalments; if so, the debtor should be released.
- The Court of Appeal may, under rule 112(1), waive appellate fees and security for costs for an applicant who lacks means where the appeal is arguable, conditional on an undertaking to pay the balance out of sums recovered.
Court orders
#- 1.Refusal to extend the undertaking of December 14, 1982; the bank is at liberty to apply for its discharge on notice to Mr Mwakio
- 2.Reduced appeal fees of Kshs 600.00 accepted with the balance of fees and security for costs (Kshs 2,000.00 under rule 112) waived, conditionally on a written undertaking to pay the balance of fees out of any money or property recovered in consequence of the appeal
- 3.The record of appeal to be prepared by the Registrar of the High Court on payment of Kshs 600.00
- 4.Stay of the warrant of arrest maintained until the Deputy Registrar re-opens the matter and conducts an inquiry into the applicant's means and ability to pay by instalments
- 5.Directions given that either party may apply for the decree under Order 20 Rule 7 of the Civil Procedure Rules and on inclusion of a certified copy of the decree in a supplementary record of appeal under rule 85(2)A
- 6.No order as to costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- High Court Civil Case No 2815 of 1980
- Jurisdiction invoked
- Court of Appeal Rules (rule 112(1) on reduced appellate fees; rule 105(2) on execution; inherent directions jurisdiction over an intended appeal)
Relief refused
#Extension of the undertaking given on December 14, 1982 not to sell the applicant's house
The undertaking cannot be extended unilaterally; the bank must apply for its discharge on notice to the applicant
Costs
There will be no order as to costs of this application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We are satisfied that there was both lack of procedure and misunderstanding during the proceedings which led to the arrest f the Appellant and are happy to say that the order staying the arrest was justified on the merits.
the court should have satisfied itself by an inquiry into the applicant’s means whether he was unable to satisfy the decree because of poverty or other sufficient cause
Under rule 112(1) of the court of Appeal Rules, we are satisfied that the appellant lacks the means to pay more than Kshs 600.00.
There will be no order as to costs of this application.
it is not possible to extend the undertaking unilaterally, and therefore we await the application, which should be made on notice to Mr Mwakio.
Issues in the judgment
#The judgment labels the applicant 'the appellant' though this is an application in an intended appeal; also typographical errors in the text ('Appelant,s', 'arrest f the Appellant', 'the fess estimated', 'bank executive for these costs').
The coram spells the third judge 'APALOO' while the signature block reads 'F.K . APALLO'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Mwashori Mwakio v Kenya Commercial Bank Ltd. [1986] KECA 54 (KLR)", Case Analysis (1986). Civil Application No NAI 59 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/54/eng@1986-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.