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High CourtDismissedJudicial Review Application No. 347 of 2018

Patrick Nderitu Macharia v Director of Public Prosecutions & 2 Others; Dove Pharma Limited (Interested Party)

High Court of Kenya
17 January 2020
6,979 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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Filing the same lawsuit twice without disclosing prior attempts is an abuse of process and will result in your case being dismissed.

What this practically means

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Executive summary

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Patrick Nderitu Macharia, a director of Pimp My Ride East Africa Ltd, sought leave to apply for judicial review orders - certiorari to quash the DCIO Central Police Division's proceedings and charge sheet, conservatory orders and prohibition restraining the DPP, DCI and DCIO from charging him or any director of the company over a failed sub-lease transaction with Dove Pharma Limited in which Ksh. 5,600,000/= was paid and later refunded by company cheques that were dishonoured. The respondents and the interested party opposed, contending the dispute was criminal (obtaining by false pretences and issuance of bad cheques) and that judicial review could not stop statutory bodies from performing their duties. The interested party further showed that the applicant had filed an identical application, JR No. 326 of 2018, which was struck off for non-attendance, and that the instant application concealed that prior suit. The court held that the duty of full and frank disclosure was breached and that instituting two identical suits on the same facts between the same parties, even where a right to begin exists, is an abuse of court process. It dismissed the application as a mischievous attempt to obtain orders not obtained in the first suit, with costs to the respondents and the interested party. In an extended discussion, the court also observed that judicial review is now a constitutional remedy under Articles 22, 23, 47, 48 and 258, and that the leave requirement under the Law Reform Act and Order 53 may be obsolete under the 2010 Constitution.

Key legal issues

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01

Whether filing two identical judicial review applications on the same facts constitutes an abuse of court process

Holding

Yes. The applicant filed JR No. 326 of 2018 and then the instant application on identical grounds without disclosing the first suit; the court dismissed the instant application as an abuse of process.

Reasoning

The court found the two applications were replicas premised on similar facts, grounds, averments and exhibits. The applicant owed a solemn duty of full and frank disclosure of the prior suit, which was breached. The abuse lies in the multiplicity and manner of exercising the right, aimed at obtaining the orders not obtained in the first suit.

p. 5
02

Whether leave is a prerequisite to judicial review under the 2010 Constitution

Holding

The court, obiter to the dismissal, reasoned that judicial review is now entrenched in the Constitution and the leave requirement may be obsolete, though it still set out the traditional leave-stage tests.

Reasoning

The court traced the two-tier statutory basis (Law Reform Act ss 8 and 9; Order 53) and held that Articles 22, 23, 47, 48 and 258 guarantee access to court, making judicial review a constitutional supervision of public power rather than a common law prerogative, and rendering leave requirements obsolete.

p. 7
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The tests for granting leave at the leave stage

Holding

An applicant must show sufficient interest (locus standi), that he is affected by the decision, an arguable case with a reasonable chance of success, that the matter is a public law matter, and that the decision was taken by a public body.

Reasoning

The court restated the established jurisprudence that the leave stage filters out frivolous, vexatious or hopeless claims, that the grant or refusal is a judicial discretion, and that the threshold is low - the applicant must raise a serious issue resolvable only at a full hearing.

p. 6

Legal principles established

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  • A litigant must candidly disclose to the court, at the earliest opportunity, the existence of any similar or previous litigation; concealment of material facts disentitles the litigant from relief
  • Instituting a multiplicity of actions on the same subject matter between the same parties, even where there exists a right to begin the action, constitutes an abuse of court process
  • The pursuit of two processes with the same effect simultaneously or concurrently constitutes an abuse of court process
  • Under the 2010 Constitution, judicial review is a constitutional remedy and the requirement of leave to commence judicial review proceedings may be obsolete

Court orders

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  1. 1.The applicant's application dated 15th August 2018 is dismissed for being an abuse of court process
  2. 2.Costs of the application to the Respondents and the Interested Party
Jurisdiction invoked
High Court supervisory jurisdiction over persons and bodies exercising judicial or quasi-judicial functions under Article 165 of the Constitution, with judicial review procedure under sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Patrick Nderitu Macharia v Director of Public Prosecutions & 2 Others; Dove Pharma Limited (Interested Party)", Case Analysis (2020). Judicial Review Application No. 347 of 2018. Source: 

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