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Wednesday 19th June 2013
Case Summaries  

CIVIL PRACTICE AND PROCEDURE Test to be applied in an application for leave to institute a pauper brief

John Mbugua and another V the Attorney General and 16 Others
Petition No. 3 of 2013
Supreme Court of Kenya at Nairobi
L. Njora DRSC.
March 20, 2013
Reported by Njeri Githang’a Kamau

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The applicants in the application sought to be allowed to file the petition challenging the swearing in of the President-elect as paupers.

  1. Matters which the registrar of the Supreme Court should consider in an application for leave to institute a pauper brief.

Civil Practice and Procedure-pauper briefs- application for leave to file petition as a pauper in the Supreme Court –matters which the registrar of the supreme court should consider in such an application –-Supreme Court Rules, Rule 50

Supreme Court Rules
Proceedings in forma pauperis
50.(1) A party may apply in any proceedings in the court to proceed in forma pauperis.
(2) Where the Registrar of the court is satisfied in any proceedings that a party lacks the means to pay the required fees, the Registrar may by order direct that the matter be lodged
(a) Without prior payment of fees of Court, or on payment of any specified amount less than the required fees; and
(b) On condition that the applicant undertakes to pay the fees or the balance of the fees out of any money or property that may be recovered in or as a consequence of the proceedings.
(3) In considering an application under sub-rule (2), the Registrar shall consider—
(a) whether the person has the capacity to pay the costs;
(b) whether the suit in the court below was instituted in forma pauperis.
(c) the affidavit of means deponed by the party;
(d) the objective merit of the case; and
(e) any practice directions made by the Chief Justice.
(4) No fee shall be payable on the lodging of an application under sub-rule (1).
(5) Any expenses arising from waiver of fees under this Rule shall be charged on the Judiciary Fund.


  1. The threshold of proving that an applicant deserves the leave of the Court to be pronounced as one capable of filing in forma paupers is extremely high.

  2. The prayers sought called for the exercise of the courts discretion which was in terms unfettered. But as in all cases where the court had to exercise its discretion, there must be some reasonable basis in fact or in law to warrant the orders made. The courts discretion had to be exercised judiciously at all times under any given circumstances.

  3. The applicants had failed to;
    1. provide the Court with sufficient evidence to persuade the Court to find in their favour.

    2. meet the threshold of proving and providing full disclosure

    3. provide an inventory of their assets and liabilities by merely stating that they have none.
  4. The onus in pauper briefs lay squarely on the applicant to candidly and in extreme openness reveal all about his status to the Court. Failure to provide disclosure in its strict sense would knock out the matter and would render a matter as uncreditworthy.

  5. The court must be satisfied on the application of an applicant that he lacks the means to pay the required fees or to deposit the security for costs and that the matter is not without reasonable possibility of success. Court of Appeal Civil Application number 228 of 2004

  6. A court was entitled to reject such an application where the court was satisfied that the applicant could not recover more than nominal damages, the court might well be justified in refusing permission because it would be unjust to the other party who would have to incur substantial costs which might not be recoverable. Ali Suleman Mandeviavs Rongwe African Co-operative Union Ltd. (1958) EA 524,

Application dismissed.


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