Mbithe Mutuku Mwangangi v David Muendo Mwangangi, Faith Ndimu & Patrick Ngila Safari

3. The Applicant stated that she was a resident of Shimba Hills in Kwale County and is a subsistence farmer. She avers that her financial position is such that she is unable to meet the necessary legal fees and expenses required to pursue her claim. She further states that her sources of income are insufficient to meet her ordinary living expenses together with the anticipated legal expenses. 4. The Applicant's claim concerns a parcel of land known as Kwale/Shimba Hills/1640, which she asserts belonged to her late husband, Justus Mutuku Mwangangi, and which she claims was intended to be held for the benefit of herself and her two children. The pleadings indicate that the Applicant alleges interference with the parcel of land by the Respondents, including cutting down trees and entering or occupying portions of the property without her authority. 5. The record further discloses that the Applicant obtained a Limited Grant of Letters of Administration ad Litem in respect of the estate of the late Justus Mutuku Mwangangi. The grant was issued in the Family Division at Mombasa and expressly authorised the Applicant, in her capacity as wife of the deceased, prosecuting for purposes and/or including defending instituting and/or pending further suits representation. 6. The Applicant has exhibited documentation relating to the suit property, including a copy of the title deed, searches and other land records. The title documentation identifies Kwale/Shimba Hills/1640 as measuring approximately 6.8 ELCLMISC E004 of 2026 HON. JUSTICE L.L NAIKUINI Page 2 of 17

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hectares and records the late Justus Mutuku Mwangangi as the registered proprietor. 7. The Applicant has also placed before the Court evidence of the death of her husband, including the Certificate of Death indicating that Justus Mutuku Mwangangi died on 4th January 2024. 8. The Court has also considered the Applicant's Notice of Motion application and Supporting Affidavit placed in the record. In the Supporting Affidavit, the Applicant reiterates that the parcel is property of her late husband, that she obtained limited letters of administration, and that the Respondents have continued to interfere with the property notwithstanding interventions by local authorities. 9. The Applicant's Notice of Motion application also sought, among other reliefs, orders restraining interference with the suit property pending hearing and determination of the suit. The application is founded, inter alia, on the allegation that the suit property belongs to the Applicant and that the Respondents have continued cutting trees and interfering with the property. 10. The immediate issue before this Court, however, is not the merits of the interlocutory application. The question presently calling for determination is whether the Applicant has established sufficient grounds upon which this Court may permit her to proceed as a pauper and/or facilitate access to legal aid. II. Analysis and Determination ELCLMISC E004 of 2026 HON. JUSTICE L.L NAIKUINI Page 3 of 17

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11. This Honourable Court has carefully considered the Petition for a Pauper's Grant, the pleadings and documents filed in support thereof, the Applicant's circumstances as disclosed in the record, the relevant provisions of the Constitution of Kenya, 2010, the Civil Procedure Rules, 2010 and the Legal Aid Act, 2016. 12. In order to arrive at a just and informed determination, the Court has framed the following three ( 3 ) major issues for determination:a) Whether the Applicant has satisfied the requirements for leave to sue as a pauper under Order 33 of the Civil Procedure Rules, 2010; b) Whether the Applicant is entitled to legal aid and/or legal representation in the circumstances of this case; and c) What orders should issue. ISSUE No. a). Whether the Applicant has satisfied the requirements for leave to sue as a pauper under Order 33 of the Civil Procedure Rules, 2010; 13. Under this Sub – title, the Honorable Court will be examining whether the Applicant has satisfied the requirements for being granted the permission to sue as a pauper. But who is a pauper? A definition of “a pauper” was given in the case of:“Benson Mbuchu Gichuhi – Versus - Nowegian Peoples Aid (2012) eKLR” as follows:‘A pauper in legal terms is not necessarily a person who is poor because poverty is relative. A pauper is essentially a person who cannot raise fees to file a suit or to mount an appeal. To bring oneself within that definition an applicant has to fully explain circumstances ELCLMISC E004 of 2026 HON. JUSTICE L.L NAIKUINI Page 4 of 17

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and show that, indeed he cannot raise the fees necessary. That, the applicant failed to do. Besides, in view of the history of the case, I cannot possibly grant permission to the applicant to file an appeal at public expense…” 14. The provision of Order 33 of the Civil Procedure Rules, 2010 governs the procedure for suing and defending as a pauper. Order 33 Rule 1 provides that any person who desires to sue or defend as a pauper may apply for leave to do so by presenting a Petition accompanied by a copy of the pleadings - Plaint or defence intended to be filed and an affidavit deposing that the applicant is unable to pay the costs of the suit and has not disposed of any property fraudulently in order to make such an application. 15. The provision of Order 33 Rule 2 of the Civil Procedure Rules, 2010 provides as follows: “Every application for permission to sue as a pauper shall contain the particulars required in regard to pleadings, together with a statement that the pauper is unable to pay the fee prescribed in such suit, and the whole shall be signed in the manner prescribed for the signing of pleadings.” 16. Under Rule 4 of the said Order, where the Court finds that the application is made in the proper form and duly presented to the Court, the Court may proceed to examine the applicant or his agent regarding the merits of the claim. As it were however, in the matter before me, the Applicant has only moved this honourable court orally. ELCLMISC E004 of 2026 HON. JUSTICE L.L NAIKUINI Page 5 of 17

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17. Under Order 33 Rule 5 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: 5. Rejection of application [Order 33, rule 5] The court shall reject an application for permission to sue as a pauper— (a) where it is not framed and presented in the manner prescribed in rules 2 and 3; (b) where the applicant is not a pauper; (c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper; (d) where his allegations do not show a cause of action; or (e) where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter. 18. The concept of a pauper is not therefore synonymous with mere poverty. The material consideration is whether the applicant possesses sufficient means to pay the prescribed court fees necessary for the institution and prosecution of the proceedings. 19. In the case of “Benson Mbuchu Gichuhi (Supra)”, the Court observed, as reflected in the John Musau ruling placed before this Court, that a pauper in legal terms is not necessarily simply a person who is poor; rather, the applicant must demonstrate that he or she cannot raise the fees necessary to prosecute the proceedings. ELCLMISC E004 of 2026 HON. JUSTICE L.L NAIKUINI Page 6 of 17

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20. In the present matter, the Applicant has expressly stated that she lacks sufficient financial means to meet the costs associated with prosecuting the proceedings. She describes herself as a subsistence farmer and states that her income is insufficient to meet her ordinary living expenses together with the anticipated legal expenses. 21. The Court is also entitled to consider the circumstances surrounding the litigation and the nature of the property in question. The documents placed before Court indicate that the dispute concerns a substantial parcel of land measuring approximately 6.8 hectares, registered in the name of the Applicant's deceased husband. 22. The Applicant has further demonstrated that her deceased husband died in January 2024 and that she subsequently obtained a limited grant of letters of administration ad litem to enable her to undertake specified proceedings concerning the estate. 23. The Applicant has not, from the material before Court, demonstrated ownership of substantial independent assets or a source of income sufficient to meet the costs of litigation. The mere fact that the suit property is registered in the name of the deceased does not, without more, establish that the Applicant has liquid resources available to her with which to pay court fees and legal expenses. 24. The Court is also mindful that the subject property is the very property over which the Applicant asserts rights arising from her late husband's estate. The existence of the property ELCLMISC E004 of 2026 HON. JUSTICE L.L NAIKUINI Page 7 of 17

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cannot, without evidence of actual access to disposable resources, be equated with the Applicant having sufficient means to fund litigation. 25. The Court has considered the documentary material placed before it, including the title documentation, search documents, the death certificate and the limited grant of letters of administration. The material establishes a prima facie connection between the Applicant, the deceased's estate and the suit property. 26. The Court has also considered whether there is anything on the record demonstrating that the Applicant has, within the relevant period, disposed of property fraudulently or otherwise manipulated her financial circumstances in order to qualify as a pauper. No such evidence has been placed before the Court. 27. Further, the underlying Plaint discloses a dispute concerning alleged interference with land, including alleged entry upon the property and cutting down of trees. The pleadings therefore disclose an identifiable cause of action requiring adjudication by this Court. 28. I therefore find that, on the material presently before Court, the Applicant has demonstrated sufficient grounds to bring herself within the meaning of a pauper under Order 33 of the Civil Procedure Rules. 29. The Court nevertheless observes that Order 33 establishes a specific procedure and that the Court should ordinarily ensure compliance with the prescribed requirements before granting ELCLMISC E004 of 2026 HON. JUSTICE L.L NAIKUINI Page 8 of 17

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leave. The constitutional command against undue regard to procedural technicalities, however, requires the Court to consider whether a procedural deficiency has occasioned or is likely to occasion substantive prejudice. 30. The provision of Article 159(2)(d) of the Constitution requires justice to be administered without undue regard to procedural technicalities. This provision does not abolish procedural rules. Rather, it requires the Court to distinguish between procedural requirements that are necessary for the fair administration of justice and technical defects that can be cured without prejudice. 31. In the present case, the Applicant has presented a substantive petition, identified her financial circumstances, exhibited documents relating to the suit property and demonstrated the basis upon which she seeks to prosecute the proceedings. The Court is therefore satisfied that the substance of the requirements for a pauper application has been placed before it. 32. I consequently find that the Applicant has established, on a balance of probabilities, that she does not possess sufficient means to meet the prescribed court fees necessary for the prosecution of the present proceedings. ISSUE No. b). Whether the Applicant is entitled to legal aid and/or legal representation 33. The right of access to justice is constitutionally protected under Article 48 of the Constitution, which provides that the State shall ensure access to justice for all persons and that ELCLMISC E004 of 2026 HON. JUSTICE L.L NAIKUINI Page 9 of 17

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any fee required shall be reasonable and shall not impede access to justice. 34. Article 19 (2) further provides that the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. 35. Article 50(1) guarantees every person the right to have any dispute capable of being resolved by application of law determined in a fair and public hearing before a court or other independent and impartial tribunal or body. 36. Although Article 50(2)(g) and (h) specifically address legal representation in the context of an accused person, the broader constitutional guarantee of fair hearing under Article 50(1), read together with Article 48 on access to justice, underscores the constitutional imperative that civil litigants should not, by reason of indigence or vulnerability, be effectively excluded from the justice system. 37. The Legal Aid Act, No. 6 of 2016, was enacted to give effect to the constitutional framework on access to justice and to establish a legal and institutional framework for provision of legal aid to indigent persons. 38. The Act recognises indigence as one of the circumstances relevant to eligibility for legal aid. Section 36 provides for eligibility for legal aid and requires consideration of the applicant's factors. financial The ELCLMISC E004 of 2026 17 Act circumstances further and recognises other relevant matters involving HON. JUSTICE L.L NAIKUINI Page 10 of

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complexity, the possible loss of rights, substantial injustice and other reasonable grounds as relevant considerations in determining whether legal aid should be granted. 39. The Court is therefore not required to approach legal aid merely as an issue of charity. Legal aid is an important component of the broader constitutional objective of ensuring that indigent persons have meaningful access to justice. 40. The Court of Appeal in the case of: “ David Njoroge Macharia – Versus - Republic [2011] eKLR” emphasized the importance of legal representation in an adversarial justice system and recognised that circumstances such as complexity of the issues and the inability of a litigant to effectively conduct proceedings may justify legal representation. 41. While David Njoroge Macharia arose in a criminal context and should therefore proceedings, the not be Court mechanically finds the applied underlying to civil principle persuasive: justice must be practical and effective rather than merely theoretical. 42. The present proceedings concern land. The Applicant is a widow prosecuting a claim arising from the estate of her deceased husband. She asserts rights over a parcel measuring approximately 6.8 hectares and alleges continuing interference with the property. The record also demonstrates that she has had to obtain limited letters of administration in order to undertake proceedings concerning the estate. 43. These are not matters that can fairly be described as trivial. They involve questions of title, succession, proprietary rights, ELCLMISC E004 of 2026 17 HON. JUSTICE L.L NAIKUINI Page 11 of

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occupation and alleged interference with land. They are matters which ordinarily require a litigant to understand and comply with substantive and procedural rules governing land litigation. 44. The Court is further persuaded by the fact that the Applicant has already sought assistance from a legal aid organisation. The papers indicate that Legal Aid & Resource Centre Kenya agreed to support her on a pro bono basis. 45. This is significant because it demonstrates not only the Applicant's asserted financial inability but also her effort to obtain lawful assistance in prosecuting her claim. 46. The Applicant's vulnerability is further demonstrated by the circumstances in which the proceedings arose. The documents show that her husband died in January 2024 and that she thereafter obtained a limited grant of letters of administration ad litem. 47. The Court must, however, balance the Applicant's right of access to justice with the rights of the Respondents. Legal aid should not become a means of advancing frivolous or hopeless proceedings or of subjecting other parties to unnecessary litigation. 48. In the present case, the Applicant's pleadings disclose a genuine dispute concerning the ownership, occupation and alleged interference with the suit property. The documentary evidence placed before Court, including the title deed, search documentation, death certificate and grant of representation, provides an evidential foundation for the proceedings. ELCLMISC E004 of 2026 17 HON. JUSTICE L.L NAIKUINI Page 12 of

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49. The Court therefore finds that the Applicant has demonstrated both indigence and a sufficient interest in the subject matter of the proceedings to warrant assistance. 50. The Court further notes that the Applicant is not seeking to have the Court determine the merits of the substantive claim at this interlocutory stage. The question is simply whether lack of financial means should prevent her from accessing the Court. 51. In the circumstances, it would be contrary to the constitutional objective of access to justice to require the Applicant to abandon or discontinue her claim merely because she is unable to pay the prescribed court fees. ISSUE No. C). What orders should the Honourable Court issue? 52. Having found that the Applicant has established that she lacks sufficient means to meet the prescribed court fees, the Court must determine the appropriate orders to preserve her access to justice while maintaining the integrity of the proceedings. 53. The Court is satisfied that this is an appropriate case in which to grant the Applicant leave to proceed as a pauper under Order 33 of the Civil Procedure Rules. 54. The Court is also satisfied that the Applicant should be permitted to continue receiving legal assistance from Legal Aid & Resource Centre Kenya, through the Advocate who has undertaken to represent her, subject to the applicable legal- ELCLMISC E004 of 2026 17 HON. JUSTICE L.L NAIKUINI Page 13 of

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aid framework and the Advocate's continued eligibility to act in that capacity. 55. This Court is mindful that the grant of pauper status does not amount to a determination that the Applicant has succeeded in her substantive claim. It merely removes the financial barrier to access to the Court. The Respondents retain their full right to defend the proceedings and to challenge the Applicant's claim on both facts and law. 56. Similarly, the grant of leave to sue as a pauper does not exempt the Applicant from compliance with the substantive and procedural requirements of the Civil Procedure Rules, the Environment and Land Court Act, the applicable land laws, directions of the Court or any orders subsequently made in the proceedings. 57. The Court further considers it appropriate that the Applicant's pauper status should remain subject to the provisions of Order 33, including the Court's power to reconsider the position should circumstances arise demonstrating that she was not, in fact, entitled to the benefit granted. III. Conclusion and Directions 58. In view of the foregoing, this Honourable Court finds that the Applicant, Mbithe Mutuku Mwangangi, has demonstrated that she is a person without sufficient means to meet the prescribed court fees necessary for the prosecution of the present proceedings. 59. The Court further finds that denying the Applicant access to the Court solely on account of her financial circumstances ELCLMISC E004 of 2026 17 HON. JUSTICE L.L NAIKUINI Page 14 of

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would undermine the constitutional guarantee of access to justice under Article 48 of the Constitution. 60. Accordingly, and having considered the Petition for a Pauper's Grant, the pleadings and documents filed herein, Order 33 of the Civil Procedure Rules, 2010, Articles 48, 50 and 159 of the Constitution of Kenya, 2010, the Legal Aid Act, No. 6 of 2016, and the interests of justice, this Honourable Court makes the following orders: a. THAT the Applicant, Mbithe Mutuku Mwangangi, be and is hereby granted leave to sue/prosecute the present proceedings as a pauper pursuant to Order 33 of the Civil Procedure Rules, 2010, and shall accordingly be exempted from payment of the prescribed court fees applicable to the institution and prosecution of the present suit, subject to the applicable law. b. THAT the Applicant shall be at liberty to continue receiving legal assistance and representation through the National Legal Aid & Resource Centre Kenya, or such other accredited legal-aid provider as may be assigned in accordance with the Legal Aid Act, 2016. c. THAT the Applicant's Advocate shall continue to represent her in the proceedings subject to the applicable legal-aid framework and the terms upon which legal aid is provided. ELCLMISC E004 of 2026 17 HON. JUSTICE L.L NAIKUINI Page 15 of

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d. THAT the grant herein shall not be construed as a determination of the merits of the Applicant's claim, and the Respondents shall remain at liberty to defend the suit in accordance with the law. e. THAT the Applicant shall comply with all further directions of this Court concerning pleadings, pretrial procedures, hearing discovery, notwithstanding mediation and the grant of pauper status. f. THAT should the financial circumstances of the Applicant materially change, or should it subsequently emerge that the Applicant was not entitled to the benefit of Order 33, the Respondents shall be at liberty to move the Court for appropriate orders in accordance with the Civil Procedure Rules. g. THAT the question of the interlocutory reliefs sought in application, the Applicant's including Notice the prayers of Motion relating to interference with Kwale/Shimba Hills/1640, shall be considered accordance and with determined the separately applicable in principles governing interlocutory relief. h. THAT ease of flow, the following should be adhered with:i. the Applicant granted 14 days to institute fresh suit against any suitable party (ies) seeking ELCLMISC E004 of 2026 17 HON. JUSTICE L.L NAIKUINI Page 16 of

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appropriate reliefs and to serve them with the Summons to Enter Appearance. j. Pursuant to that, the Defendant (s) and/or Respondent (s) to have 14 days leave to comply with the provision of Orders 7 and 11 of the Civil Procedure Rules, 2010. k. There be a mentioned of the case on 5th November, 2026 to ascertain compliance and further direction. l. THAT there shall be no orders as to costs of this application. IT IS SO ORDERED ACCORDINGLY. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT KWALE THIS ……… 30 TH ….……DAY OF …… SEPTEMBER ..……..2026. ………………………………. HON. MR. JUSTICE L. L. NAIKUNI ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of: a. Mr. Daniel Disii, the Court Assistant. b. M/s. Kemunto Advocate holding brief for Mr. Adika Advocate for the Applicant. c. Mr. Salim Moshe Advocate for the Respondent. ELCLMISC E004 of 2026 17 HON. JUSTICE L.L NAIKUINI Page 17 of

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