Richard Akwesera Onditi v Kenya Commercial Finance Co. Ltd [2005] KECA 47 (KLR)
The bottom line
#Kenyans who can't afford appeal fees can still appeal if they prove hardship and merit, but must pay from any winnings.
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 applicant lacks the means to pay the required Court fees or to deposit security for costs
- 2.Whether the intended appeal has a reasonable possibility of success such that relief under rule 112 should be granted
- 3.Whether any relief granted should be conditional on an undertaking to pay fees out of anything recovered in the appeal
Key legal issues
#Indigence as a ground for relief from fees and security under rule 112
The court granted relief because it was satisfied the applicant could not pay the fees or provide security, relying on his pension of Shs. 2,975.80 per month and his evidence about unemployed children and grandchildren
The applicant gave sworn evidence of his means: a modest pension as his only income, many unemployed dependants, and insufficient funds to farm the disputed land productively. The respondent asserted he could pay from his pension and land but filed no affidavit, leaving that contention unproven. The Deputy Registrar confirmed fees of about Shs. 100,000 on an appeal involving over Shs. 1.6 million. On that evidence the court found the applicant lacked means to pay or to deposit security.
Merits as a condition for rule 112 relief
Relief is appropriate only where the intended appeal is not without reasonable possibility of success, assessed from the draft memorandum of appeal
The court did not rest relief on indigence alone; it examined the applicant's affidavit sworn 28 July 2005 and the proposed memorandum of appeal exhibited to it. Satisfied that the appeal was not devoid of a reasonable prospect of success, it exercised its discretion in the applicant's favour. This shows rule 112 relief requires both demonstrated lack of means and some arguable merit in the intended appeal.
Legal principles established
#- A single Judge of Appeal hearing a rule 112 application may direct that an appeal be lodged without prior payment of Court fees and without security for costs where the applicant lacks means and the appeal is not without reasonable possibility of success, on condition that the applicant undertakes to pay the fees out of any recovery
Court orders
#- 1.The appeal may be lodged without prior payment of Court fees and without security for costs being lodged
- 2.The directions are conditional upon the applicant furnishing to the Deputy Registrar a signed undertaking to pay the fees or the balance of the fees out of any money or property he may recover in or in consequence of the appeal
- 3.The costs of the application shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Not stated in the judgment
- Not stated in the judgment
- Jurisdiction invoked
- Rule 112 of the Court of Appeal Rules (application for relief from payment of Court fees and from furnishing security for costs)
Relief refused
#Unconditional relief from payment of fees and security
Relief was granted only on condition of a signed undertaking to pay fees or the balance out of any recovery in or in consequence of the appeal
Costs
The costs of this application shall be in the appeal.
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.
I therefore hereby direct that the appeal may be lodged without prior payment of fees of Court and without security for costs being lodged.
I am satisfied that the applicant lacks the means to pay the required fees or to deposit security for costs.
I am satisfied that the appeal is not without reasonable possibility of success.
The costs of this application shall be in the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Akwesera Onditi v Kenya Commercial Finance Co. Ltd [2005] KECA 47 (KLR)", Case Analysis (2005). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/47/eng@2005-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.