Jingo Tours and Safaris Ltd v Jamal Shariff Swaleh & 2 others [2019] KECA 355 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that hiding other court cases from a judge can get your whole case thrown out as an abuse of court process.
What this practically means
#Executive summary
#Key legal issues
#Whether the withdrawal of pending cases by notice, filed belatedly after non-disclosure was exposed, cured the abuse of court process
The belated filing of withdrawal notices did not establish valid withdrawal and was an afterthought; the burden was on the appellant to demonstrate valid withdrawal, which it failed to do.
The court applied Beijing Industrial Designing & Research Institute v Lagoon Development Ltd, setting out three scenarios for discontinuance under the Civil Procedure Rules. Since it was not possible to tell what stage the cases had reached, any scenario could apply and the appellant bore the burden of proving valid withdrawal. The explanation of missing files was unsupported and self-serving, and the withdrawal notices came only after the 1st respondent exposed the non-disclosure.
Whether non-disclosure of pending suits rendered the judicial review application an abuse of court process
Yes. The pendency of three other suits between the same parties on the same subject matter, undisclosed in the leave application and the substantive motion, rendered the application an abuse of process, and the Judge correctly dismissed it.
It was common ground that the appellant had four cases pending involving the same parties and subject matter and did not disclose them when seeking leave or in the substantive notice of motion. Disclosure came only when the 1st respondent raised it in his replying affidavit, followed immediately by withdrawal notices. The court held this was a belated attempt to pull the rug from under the 1st respondent's feet and affirmed the Judge's discretion.
Whether the judicial review application premised on the 1st respondent's conviction could succeed while the conviction was on appeal
No. The conviction had been overturned on first appeal and a second appeal by the State was pending, so the foundation of the application did not currently exist; the application was premature.
The judicial review proceedings were heavily pegged on the 1st respondent's conviction for forgery, but the 1st respondent successfully appealed to the High Court and the State lodged a further appeal to the Court of Appeal which remained pending. The court declined to speculate on the criminal appeal's outcome and noted the registrars could not transfer or issue title until the criminal case was conclusively decided.
Legal principles established
#- The filing of notices of withdrawal of pending cases does not in itself mean that the cases stand withdrawn; the burden lies on the party asserting withdrawal to demonstrate a valid withdrawal in accordance with the applicable scenarios under the Civil Procedure Rules.
- Non-disclosure of pending suits involving the same parties and subject matter in judicial review proceedings renders the application an abuse of the court process.
Court orders
#- 1.The appeal is dismissed with costs
- 2.Costs to the 1st respondent
- On appeal from
- High Court of Kenya at Mombasa
- HC Misc. Application No. 11 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal against the ruling and order of the High Court of Kenya at Mombasa
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Energy Regulatory Commission v John Sigura Otido [2021] KECA 1060 (KLR)[2021] KECA 1060 (KLR)29 Jan 2020
Cite this brief
#Cite this brief
Caselaw, "Jingo Tours and Safaris Ltd v Jamal Shariff Swaleh & 2 others [2019] KECA 355 (KLR)", Case Analysis (2019). Civil Appeal No. 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/355/eng@2019-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.