Ali Ismail Baraki & another v Chairman, Garissa County Service Board & 4 others [2014] KECA 127 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether parallel proceedings over the same subject matter constitute an abuse of process
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.
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.
Courts' inherent power to control their own process
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.
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.
Discretion on costs
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.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.