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Court of AppealAllowedCivil Appeal No. 325 of 2013· [2019] KECA 850 (KLR)

Kenya Anti-corruption Commission v Willesden Investments Limited & 7 others

Court of Appeal
22 March 2019
4,881 words in judgment
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The bottom line

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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

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Executive summary

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The Kenya Anti-Corruption Commission sued challenging the legality of the grant of L.R No. 209/12748 to Willesden Investments Limited, alleging the property was carved from a public road reserve and that the allotment letter was issued to a non-existent company. Alongside the suit it sought temporary injunctions. Willesden applied to strike out the 6th respondent's application as res judicata; Muchelule J, instead of confining himself to that application as his own directions required, struck out the 6th respondent's application and the KACC's entire suit as res judicata of HCCC No. 367 of 2000 and Civil Appeal No. 149 of 2007, without hearing KACC. Allowing the appeal, the Court of Appeal (Ouko, Nambuye and M'inoti, JJA) held the Judge erred in deciding a matter not before him and condemned KACC unheard, contrary to the audi alteram partem rule and Articles 47 and 50 of the Constitution. On res judicata, the Court held the four conditions in Uhuru Highway Development Ltd v Central Bank of Kenya were not met: KACC was not a party to the earlier suits, the earlier litigation concerned trespass and mesne profits between Willesden and Kenya Hotel Properties, and the legality and regularity of Willesden's title was never litigated, as this Court had consistently held in prior decisions in the same dispute. The Court found the allegations of fraud and illegal alienation to be compelling and grave issues deserving trial, while confirming that the 6th respondent's own application was properly struck out as an abuse of process after 18 years of attempting to evade the decree. The ruling of 27th May 2010 was set aside, the amended plaint and KACC's chamber summons of 3rd February 2010 were reinstated for hearing on merit, with no orders as to costs.

Key legal issues

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01

Striking out the appellant's suit without hearing it

Holding

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.

Reasoning

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.

p. 4
02

Whether the appellant's suit was res judicata

Holding

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.

Reasoning

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.

p. 5
03

Whether the 6th respondent's application was properly struck out

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.Ruling rendered and orders issued on 27th May, 2010 set aside
  3. 3.Amended plaint filed in the court below on 18th February, 2010 reinstated
  4. 4.Chamber summons dated 3rd February, 2010 reinstated for hearing on merit
  5. 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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.