Tatu City Limited & another v Rosemary Wanja Mwangiru & 4 others [2019] KECA 764 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that parallel civil disputes cannot stop a criminal prosecution unless there is strong evidence of abuse of court process.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction to hear an appeal filed by the persons sued as respondents in the constitutional petition rather than by the Director of Public Prosecutions
- 2.Whether the preliminary objection was a proper procedure for seeking striking out of an appeal
- 3.Whether the learned Judge was entitled to prohibit the prosecution of the petitioners in Criminal Case No. 2077 of 2010 as an abuse of process
- 4.Whether the existence of parallel civil proceedings justified staying or prohibiting the criminal proceedings
Key legal issues
#Whether the appellants, sued as respondents in the constitutional petition, had a right of appeal
Yes. They were respondents, not interested parties, and the right to appeal belongs to any person; the appeal is a civil appeal from a constitutional determination, not an exercise of prosecutorial power.
The Court found the record showed the petitioners had sued the appellants as respondents. Rule 75(1) grants the right of appeal to 'any person', and Rule 77 requires notice of appeal to be served on all persons directly affected. An appeal against an order prohibiting prosecution is a civil appeal from a constitutional determination, not the institution of a criminal prosecution reserved to the DPP under Article 157. The preliminary objection was dismissed.
Whether the learned Judge misdirected herself on the facts in finding the caveats were at the heart of all the litigation
Yes. Only two of five civil cases related to the caveats and the criminal case concerned forgery of a Form CR 12, with no mention of caveats; the misapprehension was central to the finding of abuse and constituted a wrongful exercise of discretion.
The pleadings in the civil cases and the charge sheet were clear and unequivocal: the criminal charges alleged forgery and uttering of a company search document, not anything to do with the caveats. Construing the caveat issue as the heart of all litigation was a total misapprehension of the facts, which the Court held to be a reversible error compelling interference with the Judge's discretion.
Whether the appellants were properly described as 'galloping litigants' using the criminal process for collateral purposes
No. Given that three of the five cases were filed by the petitioners, the appellation was unwarranted, and there was no evidence that the appellants got state officers to act in breach of their mandate.
The Court held that serious allegations against state officers require solid evidence beyond mere allegations, and public officers enjoy a rebuttable presumption of good faith. The DPP and Attorney-General below had maintained there was a genuine complaint supported by a document examiner's report. The learned Judge erred in accepting Kuloba J's description without evidential foundation.
Whether the learned Judge misdirected herself on the law governing prohibition of criminal proceedings
Yes. She ought to have adopted an approach of deference and circumspection; section 193A of the Criminal Procedure Code forecloses prohibition merely because matters are also in issue in civil proceedings, and evidence of abuse was absent.
The Court reaffirmed that parallel criminal and civil proceedings may lawfully coexist, citing section 193A. While the High Court retains inherent power to stop oppressive or vexatious prosecutions (Githunguri line of cases), the complainant must place evidence before the court. Failing that, and applying the Indian and English authorities on sparing exercise of the power to quash prosecutions, the Judge's decision was plainly wrong.
Whether abuse of process had been pleaded in the petition
Yes, it had. Despite counsel's submission that abuse of process was not pleaded, the petition expressly alleged abuse of the criminal court process and fabrication of charges.
The Court pointed to paragraph 36 of the petition, which described use of the criminal process to compel settlement of a civil dispute as an abuse of process and a contravention of Article 48, and to paragraphs 55 and 61 alleging fabricated, false and malicious charges. This ground of appeal therefore failed.
Legal principles established
#- The right to appeal to the Court of Appeal belongs to any person affected, regardless of their role or description in the court below, and an appeal against an order prohibiting a prosecution is a civil appeal from a constitutional determination that may be filed by persons other than the DPP
- The mere co-existence of criminal and civil claims cannot justify halting criminal proceedings, as statutorily confirmed by section 193A of the Criminal Procedure Code
- A party alleging abuse of process or oppression must place before the court evidence backing up the complaint; bare allegations are insufficient, and the stoppage of criminal proceedings must issue only in exceptional circumstances
- The power to quash or stop criminal proceedings must be exercised very sparingly, with circumspection, in the rarest of rare cases
- There is a rebuttable presumption that public officers act in good faith, rebuttable only by evidence
- Preliminary objections are an improper instrument for striking out appeals, which should be brought by application under Rule 84 of the Court of Appeal Rules within thirty days
Court orders
#- 1.The preliminary objection is dismissed
- 2.The decision of the High Court is set aside and substituted by an order dismissing the petition
- 3.The petitioners to pay the costs of the petition
- 4.The appellants shall have the costs of this appeal to be paid by the 1st, 2nd and 3rd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Reference No. 165 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the Constitution and Court of Appeal Rules; the judgment does not cite a specific appellate provision
Relief refused
#Respondents' request that the appeal be struck out via preliminary objection on the basis that only the DPP could appeal
The appellants were sued as respondents, not interested parties, and the right to appeal belongs to any person; further, jurisdictional objections of this kind should be brought by application under Rule 84
Costs
The petition dismissed with costs; the appellants shall have the costs of this appeal to be paid by the 1st, 2nd and 3rd respondents (the 4th respondent Attorney-General was excused and no order made against him)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that this appeal succeeds. The decision of High Court is set aside and substituted by an order dismissing the petition with costs. And the appellants shall have the costs of this appeal to be paid by the 1st, 2nd and 3rd respondents.
The stoppage or truncation of criminal charges, cases, investigations and processes must issue only in exceptional circumstances, and not willynilly so long as an accused person complains, notwithstanding that he has not demonstrated the abuse of process or oppression complained of with satisfactory evidence.
The rule recognizes that the right to appeal belongs to any person. It does not speak of ‘any party’ or ‘main party’ or ‘substantive party’.
Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.
There has to be, as a pragmatic matter, a presumption, rebuttable only by evidence, that public officers act in good faith.
It is therefore neither proper, nor a practice to be encouraged, for parties to attempt to strike out appeals, as the respondents here seek by the instrumentality of preliminary objections.
this Court will only interfere with a discretionary decision of a Judge where it is established that the Judge misdirected himself in law; or that he misapprehended the law; or took into account; considerations that he should not have taken into account; or failed to take into account considerations that he should have taken into account or where the decision was plainly wrong.
Issues in the judgment
#The memorandum of appeal is described both as raising 'a dozen or so grounds' and as 'eleven grounds' collapsed into one issue
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.
- Republic v Kaburu (Criminal Case E1724 of 2024) [2026] KEMC 610 (KLR)[2026] KEMC 610 (KLR)29 Jun 2026applied
Cite this brief
#Cite this brief
Caselaw, "Tatu City Limited & another v Rosemary Wanja Mwangiru & 4 others [2019] KECA 764 (KLR)", Case Analysis (2019). Civil Appeal No. 349 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/764/eng@2019-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.