Patrick Nderitu Macharia v Director of Public Prosecutions & 2 Others; Dove Pharma Limited (Interested Party)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether filing two identical judicial review applications on the same facts constitutes an abuse of court process
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.
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.
Whether leave is a prerequisite to judicial review under the 2010 Constitution
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.
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.
The tests for granting leave at the leave stage
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.
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.
Legal principles established
#- 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
#- 1.The applicant's application dated 15th August 2018 is dismissed for being an abuse of court process
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.