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Court of AppealDismissedCivil Appeal No. 217 of 2015· [2017] KECA 591 (KLR)

Kivanga Estates Ltd v National Bank of Kenya Ltd [2017] KECA 591 (KLR)

Court of Appeal
24 March 2017
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'Inoti
2,336 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that repeatedly filing and abandoning lawsuits over the same dispute is an abuse of court process that justifies striking a case out.

What this practically means

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Executive summary

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The Court of Appeal (Makhandia, Ouko and M'Inoti, JJ.A) dismissed the appellant's appeal against a ruling of Havelock, J. striking out its suit (Nbi H.C.C.C. No. 479 of 2010) under Order 2 rule 15(1)(b) and (d) of the Civil Procedure Rules as frivolous, vexatious and an abuse of the court process. The dispute arose from financial facilities obtained in 1987 from the respondent's predecessor, secured by a charge over plot No. 1112/19 Embu Township. Over some 27 years the appellant filed a succession of suits - in Meru, Embu and Nairobi - to resist the respondent's statutory power of sale; none was determined on merit, several being abandoned or dismissed for want of prosecution or default in discovery. The High Court found the fresh suit res judicata and an abuse of process and struck it out with costs. On appeal, the Court of Appeal restated the principles governing striking out of pleadings: the jurisdiction is draconian and discretionary, to be exercised sparingly and only in plain cases where a pleading cannot be cured by amendment, balancing the right to a full trial against the unfairness of subjecting a party to a hopeless case. It affirmed that an appellate court will not interfere with that discretion where properly exercised. Critically, it held that serially abandoning suits and refiling fresh ones over the same subject matter is itself an abuse of process justifying striking out even absent merit-based determinations, weighing the public interest in finality of litigation against constitutional access to courts. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Principles governing striking out of pleadings under Order 2 rule 15

Holding

Striking out is a drastic, discretionary, last-resort remedy to be used sparingly and only where a pleading cannot be salvaged by amendment, balancing the litigant's right to a full trial against fairness to a party facing a non-starter case.

Reasoning

The Court recast Order 2 rule 15 (which retains Order VI rule 13 of the repealed rules) and the settled case law. Because the jurisdiction can end a suit before hearing on merit, natural justice ordinarily requires every litigant be heard; yet it is unfair to drag a party through litigation that is plainly groundless. The word 'may' signals discretion and sparing use.

p. 1
02

Whether serial abandonment and refiling of suits over the same subject matter constitutes abuse of process

Holding

Yes. Filing successive suits in different courts over 27 years to frustrate a chargee's statutory power of sale amounts to gross abuse of the process of the court, even though none of the earlier suits was determined on merit.

Reasoning

The Court weighed the public interest in finality of litigation against the constitutional right of access to courts. It held the court may examine the conduct of a party bringing successive proceedings and, ex debito justitiae, prevent abuse of its process to preserve the integrity of the administration of justice.

p. 3
03

Meaning of frivolous and vexatious pleadings

Holding

A pleading is frivolous when groundless or fanciful, and vexatious when it lacks bona fides, is hopeless, and tends to cause the opposite party unnecessary anxiety, trouble or expense.

Reasoning

Adopting the definition in Trust Bank Limited v Amin Company Ltd, the Court found the appellant's conduct fell squarely within it: suits actuated by bad faith, meant to cause the respondent anxiety and unnecessary expense, justifying striking out under rule 15(1)(b).

p. 4

Legal principles established

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  • The power to strike out pleadings is drastic and must be exercised sparingly; it is only for plain cases where the pleading cannot be salvaged by amendment.
  • An appellate court will not interfere with a trial court's discretion to strike out pleadings where the court below properly addressed itself to the principles and the grounds under Order 2 rule 15 exist.
  • Repeatedly abandoning suits before determination and filing fresh suits over the same subject matter is itself an abuse of the process of the court justifying striking out under Order 2 rule 15(1)(b) and (d), even where none of the previous suits was determined on merit.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Appellant to pay costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15(1)
  • Civil Procedure Rules (repealed)Order VI rule 13
  • Civil Procedure Actsection 7
  • Constitution of Kenyaright of access to courts

Cases cited (10)

  • Co-Operative Merchant Bank Ltd. vs George Fredrick Wekesa
    Civil Appeal No. 54 of 1999
  • Yaya Towers Limited vs Trade Bank Limited (In Liquidation)
    Civil Appeal No. 35 of 2000
  • DT Dobie & Company (Kenya) Ltd vs Muchina
    (1982) KLR 1
  • Nicholas Njeru v The Attorney General & 8 Others
    HCCC No. 60 of 2012
  • Geoffrey M. Kabethi v Peter W. Njogu & Another
    ELC No. 411 of 2013
  • Loise M. Gachinga & Ano. v Stephen Kiiru Mugo & Another
    ELC No. 62 of 2013
  • Michael C. Toroitich v Peter M. Y. Chebii
    HCCC No. 58 of 2012
  • Enock K. Muhanji v Hamid Abdalla Mbarak
    Malindi Civil Suit No. 58 of 2012 (2013) eKLR
  • Mwaniki Kibui v Jane M. Waweru & 6 Others
    ELC No. 66 of 2012
  • Trust Bank Limited v Amin Company Ltd & Another
    (2000) KLR 164
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 479 of 2010
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Civil Procedure Act and Appellate Jurisdiction Act (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kivanga Estates Ltd v National Bank of Kenya Ltd [2017] KECA 591 (KLR)", Case Analysis (2017). Civil Appeal No. 217 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/591/eng@2017-03-24

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