Kenya Anti-corruption Commission v Willesden Investments Limited & 7 others
The bottom line
#Kenya's Court of Appeal reinstated an anti-corruption suit over prime Nairobi land, ruling a judge cannot strike out a case without hearing the party first.
What this practically means
#Executive summary
#Key legal issues
#Striking out the appellant's suit without hearing it
It was erroneous for the Judge to deal with a matter not before him and to strike out the suit without according the appellant a hearing; the discretion was thus not judicially exercised.
The Judge had expressly directed that only the 1st respondent's application of 2nd March 2010 be heard. The appellant's counsel took a neutral stand because its injunction application was pending. The Judge nevertheless struck out the entire suit, tagging it to the 6th respondent's application. That exceeded the matters canvassed and condemned the appellant unheard, violating the audi alteram partem rule and Articles 47 and 50 of the Constitution.
Whether the appellant's suit was res judicata
The strictures for res judicata were not met: the appellant was not a party to the previous suits, the issues of fraud and illegality of title were never litigated, and the parties were not litigating under the same title.
HCCC No. 367 of 2000 and Civil Appeal No. 149 of 2007 concerned trespass and mesne profits between the 1st and 6th respondents; the legality and regularity of the 1st respondent's title was never in issue. This Court had consistently so held in prior decisions in the same dispute. The four conditions in Uhuru Highway Development Ltd v Central Bank of Kenya were therefore not satisfied against the appellant.
Whether the 6th respondent's application was properly struck out
The 6th respondent's application was properly found to be res judicata; its long campaign to evade the decree amounted to an abuse of court process.
Having been condemned in HCCC No. 367 of 2000 and lost in Civil Appeal No. 149 of 2007, the 6th respondent had, over 18 years, mounted at least nine unsuccessful proceedings to evade settlement of the decretal sum. Its application in the court below sought to re-open matters already conclusively determined and was a further attempt to piggyback on the litigation.
Legal principles established
#- Striking out a pleading is a discretionary, draconian power exercised sparingly, only in plain cases, and an appellate court will not interfere absent error of principle.
- No party may be condemned without a fair hearing; the right to be heard under the audi alteram partem rule is a constitutional imperative under Articles 47 and 50.
- Res judicata applies only where all four elements are met, including identical parties or parties litigating under the same title; a stranger to the earlier suit cannot be bound by it.
Court orders
#- 1.Appeal allowed
- 2.Ruling rendered and orders issued on 27th May, 2010 set aside
- 3.Amended plaint filed in the court below on 18th February, 2010 reinstated
- 4.Chamber summons dated 3rd February, 2010 reinstated for hearing on merit
- 5.No orders as to costs
- On appeal from
- High Court at Nairobi
- HCCC No. 35 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court
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.
- Peter Njuguna Kariuki v James Njogu Kagunda [2021] KEELC 3758 (KLR)[2021] KEELC 3758 (KLR)8 Apr 2021
Cite this brief
#Cite this brief
Caselaw, "Kenya Anti-corruption Commission v Willesden Investments Limited & 7 others", Case Analysis (2019). Civil Appeal No. 325 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/850/eng@2019-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.