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High CourtDismissedNairobi HCC No. E270 of 2023

Ashok Labshanker Doshi v Kenya Deposit Insurance Corporation

High Court of Kenya
11 January 2024
3,865 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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The High Court struck out a depositor's suit against Kenya's bank liquidator because identical cases were already pending elsewhere, and awarded costs against him.

What this practically means

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Executive summary

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The plaintiff, a depositor of Imperial Bank Limited (in liquidation), moved by Notice of Motion dated 13th June 2023 seeking temporary injunctions to restrain the Kenya Deposit Insurance Corporation, as liquidator appointed on 8th December 2021, from paying out protected deposits and publishing the final statement of account in the Kenya Gazette before conclusion of the liquidation, arguing that Section 28(2) of the Kenya Deposit Insurance Act permits such payments only after conclusion of liquidation, and urging that the later-enacted Section 28(2) effectively repealed Section 33(6), which mandates payment within thirty days of the liquidator's appointment. The defendant, through a replying affidavit of David Irungu, contended it was wrongly joined since Imperial Bank can still sue and be sued, that payment of protected deposits was its statutory mandate, that the suit duplicated several pending matters in Mombasa and the Court of Appeal, and was sub judice, forum shopping and an abuse of process. The court first addressed sub judice under Section 6 of the Civil Procedure Act, applying the conditions in the Kirima case. Finding four suits by the plaintiff on the same subject matter with similar orders previously granted by Onyiego J and later set aside, it held the matter sub judice, an abuse of process, and that the court lacked jurisdiction. The suit and application were dismissed and struck out, the plaintiff directed to prosecute the pending matters, and the defendant allowed to execute its statutory mandate. The plaintiff was ordered to bear the defendant's costs.

Key legal issues

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01

Whether the suit is sub judice under Section 6 of the Civil Procedure Act

Holding

The suit is sub judice; similar suits between the same parties over the same subject matter were pending in Mombasa and the Court of Appeal, and similar orders had already been sought and granted elsewhere

Reasoning

The court applied the five conditions for sub judice from the Kirima case: same matter directly and substantially in issue, same parties, pending before competent Kenyan courts, first court competent to grant the relief, and same title. It identified four pending suits by the plaintiff on the same subject matter, with similar orders previously granted by Onyiego J and not controverted. Consequently the court lacked jurisdiction.

p. 7
02

Whether the suit is an abuse of court process

Holding

Yes; the multiplicity of suits seeking identical relief was an abuse of process and amounted to forum shopping

Reasoning

The defendant showed the plaintiff had filed several suits and applications challenging the liquidation and halting payments, with one application dismissed on 15th May 2023 and an injunction granted in 2016 subsequently set aside on appeal. The court found the orders sought had been sought, granted elsewhere and similarly set aside, making the present suit duplicative and an abuse.

p. 7
03

Whether the plaintiff met the Giella v Cassman Brown threshold for an interlocutory injunction

Holding

The court declined to reach this question once it found the suit sub judice

Reasoning

Having held that the suit and application were sub judice and that the court lacked jurisdiction, the court found it unnecessary to interrogate the framed issues, including the injunction threshold. The effect was dismissal of the entire suit and application, with directions to prosecute the pending Mombasa and Court of Appeal matters.

p. 7

Legal principles established

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  • Where the same matter is directly and substantially in issue in a previously instituted suit between the same parties pending before a competent Kenyan court, a later court lacks jurisdiction under Section 6 of the Civil Procedure Act
  • A suit duplicating pending litigation between the same parties over the same subject matter amounts to an abuse of the court process

Court orders

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  1. 1.The suit and the application are dismissed and struck out in their entirety
  2. 2.The plaintiff is directed to prosecute the matters pending before the High Court in Mombasa and the Court of Appeal
  3. 3.The Defendant may proceed to execute its mandate under the Kenya Deposit Insurance Act unless otherwise lawfully restrained
  4. 4.The plaintiff to bear the costs of the Defendant
Jurisdiction invoked
Sections 28 and 55(2) of the Kenya Deposit Insurance Act; Section 1A and 3A of the Civil Procedure Act; Order 40 Rule 1 of the Civil Procedure Rules, 2010; Article 159 of the Constitution of Kenya

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, "Ashok Labshanker Doshi v Kenya Deposit Insurance Corporation", Case Analysis (2024). Nairobi HCC No. E270 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/

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