RULING
The application before me is the one dated 16/03/2013. The applicants in this application state that they are without means; they sought orders to be allowed to file the petition challenging the swearing in of the President-elect.
The prayers sought herein call for the exercise of the courts discretion which is in terms unfettered. But as in all cases where the court has to exercise its discretion, there must be some reasonable basis in fact or in law to warrant the orders made. The courts discretion has to be exercised judiciously at all times under any given circumstances.
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. The court has seen a lot of paper work, volumes of paperwork that has mentioned that the applicants are internally displaced persons. I have also seen a Court order from the High Court granting leave to the applicants to file matters in the High Court in forma paupers status.
The Court has looked at the applicants’ affidavit as well as the voluminous bundle of exhibits that the applicants have presented to this court in support of their application. The court, having so critically applied its mind to this matter, finds as follows:
1. That the applicants have failed to provide this Court with sufficient evidence to persuade this Court to find in their favour.
2. The applicants failed to meet the threshold of proving and providing full disclosure. The applicants failed to provide an inventory of their assets and liabilities by merely stating that they have none.
3. The applicants stated that they rely on well wishers for their daily upkeep. To what extent, they did not show the Court. To whom they depended on was also not disclosed. The duty falls squarely on the applicants to provide all pertinent and material information to the court.
4. The onus in briefs such as this, is as held by this Court in ISAACK ALUOCHIER v. IEBC and 19 OTHERS lies 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. It would and does render a matter as uncreditworthy.
The court is fortified in its arriving at this decision by the following authorities –
a) In the Court of Appeal Civil Application number 228 of 2004,
The Court of Appeal held that..... “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”
b) In the case of Ali Suleman Mandeviavs Rongwe African Co-operative Union Ltd. (1958) EA 524, it was held that “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.”
5. Reasons wherefore this Court is not satisfied that the applicants have demonstrated that they are worthy of this Court exercising its discretion in their favour.
6. In the result, I decline to grant the applicants the relief sought. The upshot therefore is that the applicants’ application dated the 16/03/2013 does fail in its entirety and is hereby dismissed. I make no orders as to costs.
7. For the purposes of clarity and for the avoidance of doubt, this order does not preclude the applicants from appealing if they can obtain resources for doing so.
DATED and DELIVERED at NAIROBI this 20th day of March, 2013 .
In the presence of:
1st Applicant
2nd Applicant
Court clerk, Ismael.
HON. LUCY NJORA
SUPREME COURT OF KENYA