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Court of AppealDismissedCivil Appeal No. 236 of 2013· [2014] KECA 127 (KLR)

Ali Ismail Baraki & another v Chairman, Garissa County Service Board & 4 others [2014] KECA 127 (KLR)

Court of Appeal
3 October 2014
2,671 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that filing the same dispute in two courts at once is an abuse of process that gets cases struck out with costs.

What this practically means

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Executive summary

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The appellants, aggrieved by the recruitment, vetting and approval of the Garissa County Public Service Board, applied to be joined as interested parties in Constitutional Petition No. 8 of 2013 before the High Court at Garissa, where their joinder application was held in abeyance pending determination of a preliminary objection. Without withdrawing that application, they commenced judicial review proceedings in Nairobi seeking certiorari to quash the County Assembly's approval of the nominees, contending that the approval was granted in contempt of a court order. The respondents applied to strike out the Nairobi proceedings as an abuse of process, and Majanja J struck out the action with costs, holding that the parties and subject matter were the same as in the Garissa petition and that the judicial review was a collateral attack on the Garissa court's orders. On appeal, the Court of Appeal (Karanja, Maraga and Gatembu Kairu, JJ.A) in a single judgment dismissed the appeal. It held that the subject matter of the two proceedings was identical, and that a litigant with a pending application in one court cannot institute parallel proceedings elsewhere without first withdrawing the earlier application; to do so is an abuse of the process. The Court affirmed the sub judice principle in section 6 of the Civil Procedure Act and the courts' inherent power to prevent abuse of process, reaffirmed in Richard N. Leiyagu v IEBC. The Court also declined to disturb the costs award, rejecting the submission that public-interest litigation should attract no costs. The appeal was dismissed with costs.

Key legal issues

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01

Whether parallel proceedings over the same subject matter constitute an abuse of process

Holding

Where a party's pending application in a previously instituted proceeding directly and substantially raises the same issue, commencing parallel proceedings without withdrawing the earlier application is an abuse of court process justifying striking out.

Reasoning

The appellants had applied to be joined in Constitutional Petition No. 8 of 2013 in Garissa; that application was held in abeyance pending determination of a preliminary objection. Without withdrawing it, they instituted judicial review in Nairobi seeking certiorari over the same board appointments. The matters in issue were directly and substantially the same; the sub judice principle in section 6 of the Civil Procedure Act and the court's inherent powers supported striking out.

p. 4
02

Courts' inherent power to control their own process

Holding

Courts have inherent jurisdiction to make orders necessary for the ends of justice and to prevent abuse of the process, reaffirmed in Richard N. Leiyagu v IEBC.

Reasoning

The Court adopted its earlier statement in Leiyagu that statutes cannot cover every situation and courts possess implied jurisdiction to control their own procedure to prevent injustice. This inherent power properly grounded the High Court's striking out of the abusive proceedings.

p. 5
03

Discretion on costs

Holding

An appellate court will not lightly interfere with a judge's discretion on costs; the argument that public-interest litigation should attract no costs was rejected.

Reasoning

Counsel for the appellants urged that, as the litigation was a public-interest matter promoting good governance, each party should bear its own costs, citing Trusted Society of Human Rights Alliance v AG. The Court held the judge properly exercised his power and declined to disturb the costs order.

p. 5

Legal principles established

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  • A litigant who has a pending application in one court cannot commence parallel proceedings over the same subject matter in another court without first withdrawing the pending application; doing so is an abuse of the process of the court.
  • To pursue substantially the same matter in different courts is an abuse of the process of the court, and courts have inherent power to prevent it.

Court orders

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  1. 1.Appeal dismissed with costs
On appeal from
High Court of Kenya at Nairobi
Nairobi High Court J.R. Miscellaneous Civil Application No. 301 of 2013
Jurisdiction invoked
First appellate jurisdiction over the High Court ruling (Constitution of Kenya; appeal against exercise of judicial review discretion)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ali Ismail Baraki & another v Chairman, Garissa County Service Board & 4 others [2014] KECA 127 (KLR)", Case Analysis (2014). Civil Appeal No. 236 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/127/eng@2014-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.