https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12024

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION** **CIVIL SUIT NO. E028 OF 2025** **ETHICS AND ANTI-CORRUPTION COMMISSION…. PLAINTIFF/RESPONDENT** **VERSUS** **KIRIMI PETER KABERIA...............................1ST DEFENDANT****/RESPONDENT** **JOHN RUGA................................................2ND DEFENDANT/RESPONDENT** **HARON KOMEN CHEBET..............................3RD DEFENDANT/RESPONDENT** **ISAAC OKOTH OMOGI.................................4TH DEFENDANT/RESPONDENT** **NICHOLAS MWENDWA KITHUKU..................5TH DEFENDANT/RESPONDENT** **GREGORI INTERNATIONAL.............................6TH DEFENDANT/APPLICANT** **AND** **PRINCIPAL SECRETARY, STATE DEPARTMENT** **OF SPORTS.............................................................INTERESTED PARTY** **RULING** 1. The 6th Defendant filed a Notice of Motion dated 4th September 2025, under a Certificate of Urgency, pursuant to Section 12(c) read with Section 11(1)(j) of the Ethics & Anti-Corruption Commission Act, Sections 53(3) and 56(5) of the Anti-Corruption & Economic Crimes Act, Section 43(1) of the Leadership & Integrity Act, and Sections 1A, 3A and 7 of the Civil Procedure Act. 2. The 6th Defendant seeks for the following orders: - 3. *Spent* 4. *Spent* 5. THAT the Honourable Court be pleased to stay proceedings pending the hearing and determination of the Application. 6. THAT the Honourable Court be pleased to strike out this suit for having been filed out of the statutory period prescribed by, and in violation of the provisions of the Limitation of Actions Act. 7. THAT in the alternative and without prejudice to prayer 3 above, the Honourable Court be pleased to strike out this suit for being res judicata on account of the judgment in Nairobi High Court Commercial Cause No. COMM/E100/2020. 8. THAT the Plaintiff/Respondent be condemned to pay the 6th Defendant’s Costs of the suit and this Application in any event. 9. THAT the Honourable Court be pleased to make such further orders as are necessary for the ends of justice and to prevent abuse of the process of the Honourable Court. 10. The application is premised on grounds apparent on its face and is supported by the affidavit of Xavier Jean Gregori, which asserts that the Plaintiff/Respondent’s suit is incompetent and should be struck out on several grounds. The 6th Defendant stated that the proceedings are res judicata, as they arise from substantially the same facts, issues, and parties as those determined in Nairobi High Court Commercial Cause No. COMM/E100/2020, where judgment has already been delivered. They averred that under the Anti-Corruption and Economic Crimes Act and the Leadership and Integrity Act, the suit could have been instituted by either the Attorney General or the Plaintiff, and since the Attorney General participated in the commercial proceedings, the two are, for purposes of Section 7 of the Civil Procedure Act, effectively the same party. 11. The 6th Defendant further relied on the explanation to Section 7 of the Civil Procedure Act, which provides that matters which were or ought to have been raised in the earlier proceedings are deemed to have been heard and determined. They pointed to the Plaintiff’s application in the commercial suit, seeking to set aside the partial judgment and to file additional documents in support of its challenge to the 6th Defendant’s claim, as an acknowledgement that the issues belong in the earlier proceedings, thereby reinforcing the plea of res judicata. 12. Additionally, the 6th Defendant contended that the suit is statute-barred under the Limitation of Actions Act. It further states that the Plaintiff has failed to provide a satisfactory explanation for commencing investigations approximately eight (8) years after the impugned transaction and five years after public litigation had already begun. According to the 6th Defendant, the suit is a belated attempt to assist the Interested Party in frustrating the enforcement of a valid court judgment. They therefore urged the court to uphold the preliminary objections and grant the orders sought, particularly those in their favour. **RESPONSES** 1. In their Replying Affidavit, sworn on 30th September 2025 by Evans Ronoh, an Investigator with the Ethics and Anti-Corruption Commission, duly authorised to depose on behalf of the Plaintiff, the Plaintiff opposed the 6th Defendant’s application, deposing that the EACC is constitutionally and statutorily mandated to investigate corruption and to institute proceedings for the recovery and protection of public property and proceeds of corruption. The deponent maintained that the present suit seeks the recovery of public funds lost through an unlawful procurement process. 2. The deponent further averred that the suit is not statute-barred, relying on section 42(1)(j) of the Limitation of Actions Act, and contended that the limitation objection is misconceived. He explained that the EACC investigated Tender No. MOSCA/CHAN/002/2017–2018, concerning the design, rehabilitation and installation of sports facilities for CHAN 2018, valued at approximately Kshs. 995 million. The investigations allegedly established that the 6th Defendant was neither registered nor accredited by the National Construction Authority at the material time and was registered in Kenya only after the procurement contract had been executed, rendering it ineligible for the award. 3. According to the deponent, the investigations further revealed that the 1st to 5th Defendants conspired with the 6th Defendant to manipulate the procurement process in breach of Article 227(1) of the Constitution, the Public Procurement and Asset Disposal Act, the Public Finance Management Act, and the Anti-Corruption and Economic Crimes Act. As a consequence of the fraudulent procurement, the Government allegedly paid Kshs. 220,402,074.64 to the 6th Defendant without adequate supporting documentation, despite the contract being tainted by corruption, fraud and collusion. The public officers involved allegedly acted negligently, breached their fiduciary duties, abused their offices, and violated constitutional and statutory standards of integrity. 4. On the plea of res judicata, the deponent denied that the present proceedings are barred. He explained that although EACC was joined as an interested party in Milimani Commercial Case No. E100 of 2020 and Judicial Review Case No. E172 of 2022, its role as an interested party did not permit it to file a counterclaim or institute recovery proceedings. Instead, EACC could only inform the court of its intended action and seek a stay of enforcement pending the filing of an independent recovery suit. The deponent therefore maintained that the present proceedings are founded on EACC’s independent statutory mandate and are neither an abuse of the court process nor an attempt to relitigate issues already determined. 5. The deponent concluded that EACC’s investigations disclosed serious procurement irregularities, corruption, abuse of office, fraudulent misrepresentation, unlawful direct procurement, unlawful payments, and the preparation of false procurement documents by the Defendants. He therefore urged the court to dismiss the 6th Defendant’s application with costs and to allow the substantive recovery suit to proceed to hearing on its merits. 6. The **1st Defendant**, Kirimi Peter Kaberia, filed a Replying Affidavit, sworn on 26th September 2025, in support of the 6th Defendant’s application, contending that the present suit is res judicata because it concerns substantially the same parties, facts, and issues as High Court Commercial Cause No. E100 of 2020, Gregori International v The Hon. Attorney General and Ministry of Sports, in which the Commercial Court entered a partial judgment on 30th June 2022. The 1st Defendant further deposed that the Plaintiff’s suit is statute-barred under the Limitation of Actions Act and that it was instituted in bad faith to assist the Interested Party in preventing the enforcement of the valid judgment obtained by the 6th Defendant. According to the 1st Defendant, the suit is a delaying tactic, misconceived, incompetent, lacks merit, and amounts to an abuse of the court process. The 1st Defendant therefore urged the court to allow the 6th Defendant’s application and award costs against the Plaintiff. 7. In his Replying Affidavit, sworn on 2nd October 2025 in support of the 6th Defendant’s application, the 2nd Defendant, John Ruga, stated that the Plaintiff’s suit is res judicata, sub judice, statute-barred, and an abuse of the court process. He deposed that the present proceedings violate Sections 6 and 7 of the Civil Procedure Act because they arise from the same subject matter as Milimani HCCC No. E100 of 2020, Gregori International v Ministry of Sports & another, namely Tender No. MOSCA/CHAN/002/2017–2018 and the payment of over Kshs. 220 million under that contract. 8. The 2nd Defendant asserted that the Plaintiff was already participating in the Commercial Court proceedings as an Interested Party and was therefore improperly attempting to relitigate the same dispute through separate recovery proceedings. He maintained that allowing parallel suits would expose the Defendants to double jeopardy, risk conflicting decisions, and undermine the principles of finality in litigation. According to the 2nd Defendant, the Plaintiff ought to have pursued any claims relating to the tender within the existing Commercial Court proceedings rather than instituting a fresh suit. 9. The 2nd Defendant further deposed that the suit is barred by the Limitation of Actions Act, noting that the Plaintiff had failed to justify the institution of recovery proceedings many years after the cause of action arose. While acknowledging the Plaintiff’s constitutional and statutory mandate to recover proceeds of corruption, he stated that such powers must be exercised within the confines of the Civil Procedure Act and cannot be used to circumvent mandatory procedural requirements or facilitate forum shopping. 10. The 2nd Defendant concluded that the public interest lies in the finality of litigation, the avoidance of duplicative proceedings, and the efficient use of judicial resources. He therefore urged the court to find that the suit is fatally defective, offends the doctrines of *res judicata* and *sub judice*, constitutes an abuse of the court process, and to allow the 6th Defendant’s application with costs. 11. **The 3rd Defendant,** Haron Komen Chebet, filed a Replying Affidavit sworn on 26th September 2025 in Support of the 6th Defendant’s application, urging the court to strike out the Plaintiff’s suit. He deposed that the suit arises from Tender No. MOSCA/CHAN/002/2017–2018 for the design and installation of sports facilities in preparation for the Africa Nations Championship (CHAN), a contract valued at approximately Euros 8,117,869, about Kshs. 995 million. 12. The 3rd Defendant stated that following the Interested Party’s alleged breach of the contract, the 6th Defendant instituted High Court Commercial Case No. E100 of 2020, *Gregori International v Ministry of Sports, Culture and Arts, Principal Secretary State Department of Sports Development & the Attorney General*. He averred that on 30th June 2022, the Commercial Court entered a partial judgment in favour of the 6th Defendant for €2,232,500, leaving the balance of the claim for determination. He contended that the issues determined in that judgment are *res judicata*, and that the doctrine exists to prevent repetitive litigation, inconsistent decisions, and unnecessary expenditure of judicial resources by requiring parties to litigate all their claims in one proceeding. 13. The deponent further stated that although the Plaintiff was joined as an Interested Party in the Commercial Case on 23rd June 2025, such joinder did not alter the character of the parties or the applicability of the doctrine of res judicata. He maintained that the Attorney General represents the National Government under Article 156 of the Constitution and that parties cannot avoid the doctrine of *res judicata* merely by adding new parties or causes of action in subsequent proceedings. Accordingly, he asserted that the present suit remains barred by *res judicata* and ought to be struck out. 14. The 3rd Defendant also deposed that the suit is time-barred, arguing that the Interested Party’s liability had already been determined by a court of competent jurisdiction through the partial judgment. He stated that the Plaintiff cannot rely on the exceptions under the Limitation of Actions Act to recover the same claim, with the result that the court lacks jurisdiction to entertain the suit. On that basis, he urged the court to allow the 6th Defendant’s application and dismiss the Plaintiff’s suit. 15. **The 5th Defendant,** Nicholas Mwendwa Kithuku, swore a Replying Affidavit in support of the 6th Defendant’s application deposing that the present suit concerns Tender No. MOSCA/CHAN/002/2017–2018 relating to the design, mobilization, rehabilitation and installation of sports facilities for CHAN 2018, and seeks recovery of Kshs. 220,402,074.64. He averred that the procurement process commenced in February 2016, before his election as President of the Football Kenya Federation, and referred to documents filed by the Plaintiff in support of that position. 16. He deposed that the 6th Defendant had previously instituted High Court Commercial Case No. E100 of 2020, *Gregori International v Ministry of Sports, Culture and Arts, Principal Secretary State Department of Sports Development & the Attorney General* concerning the same contract. According to the 5th Defendant, the Commercial Court entered a partial judgment on 30th June 2022 for €2,232,500, with the balance of the claim left for hearing. He also referred to Judicial Review Application No. E172 of 2022, filed to enforce the partial decree, and noted that the Plaintiff subsequently sought to be joined in both the Commercial Case and the Judicial Review proceedings while also applying to set aside the partial judgment. 17. The 5th Defendant stated that, at the time the present suit was filed, courts of concurrent jurisdiction were already seized of the same dispute arising from the performance of the contract under Tender No. MOSCA/CHAN/002/2017–2018. He deposed that the Plaintiff, as a government agency, was effectively litigating on behalf of the Ministry of Sports, the State Department of Sports Development and the Attorney General, who were parties to the earlier proceedings. He maintained that merely adding other defendants could not defeat the doctrine of *res judicata*, and that the suit was therefore barred by the partial judgment in Commercial Case No. E100 of 2020. 18. The deponent further asserted that the present proceedings are also caught by the doctrine of *sub judice*, as another court of competent jurisdiction is already considering the same subject matter. He maintained that allowing the suit to proceed would amount to an abuse of the court process, expose the parties to conflicting decisions, and embarrass the administration of justice. He therefore urged the court to stay or strike out the proceedings and allow the 6th Defendant’s application. 19. The Plaintiff filed a Further Affidavit sworn on 20th February 2026 by Evans Ronoh, an investigator with the Ethics and Anti-Corruption Commission, supplementing the earlier Replying Affidavit sworn on 30th September 2025 in opposition to the 6th Defendant’s application. He stated that the present suit seeks to recover public funds arising from the allegedly irregular procurement under Tender No. MOSCA/CHAN/002/2017–2018, valued at approximately €8,117,869 (Kshs. 995 million). 20. The deponent further informed the court that on 4th February 2026, the High Court directed that Milimani Judicial Review Case No. E172 of 2022, ACEC Suit No. E028 of 2025, and Milimani Commercial Case No. E100 of 2020 remain effectively coordinated, with the Judicial Review proceedings being held in abeyance until the Commercial Case and the present ACEC suit are determined. He annexed the court directions and a letter dated 6 February 2026 in support of that position. According to the deponent, these directions demonstrate that the pending proceedings can proceed in an orderly manner and undermine the Defendants’ objections based on parallel proceedings. **SUBMISSIONS** 1. **The 6th Defendant** in their submissions dated 10th May 2026 argued that the Plaintiff’s suit should be struck out on the grounds that it is *res judicata*, time-barred, and an abuse of the court process. They argued that the suit seeks to reopen issues that were substantially determined in Nairobi High Court Commercial Cause No. E100 of 2020, where a partial judgment was entered in their favour on 30th June 2022. According to the 6th Defendant, the present proceedings represent an improper attempt by the EACC to assist the Interested Party in avoiding compliance with a valid court judgment. 2. On the issue of *res judicata*, the 6th Defendant submitted that all the ingredients under Section 7 of the Civil Procedure Act, as set out in *Independent Electoral and Boundaries Commission v Maina Kiai & 5 others* (2017) eKLR and *Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others* (2014) eKLR, have been satisfied. They argued that the Commercial Court was a court of competent jurisdiction, the judgment delivered by Majanja J. remains unchallenged by appeal or review, and the issues in both suits arise from the same contract, namely Tender No. MOSCA/CHAN/002/2017–2018. The 6th Defendant contended that the allegations of fraud now relied upon by the Plaintiff either were or ought to have been raised in the Commercial Case and are therefore deemed to have been conclusively determined. 3. The 6th Defendant further argued that the parties in the two suits are, for purposes of *res judicata*, substantially the same. They submitted that although EACC was not an original party to the Commercial Case, both EACC and the Attorney General litigate on behalf of the Government and represent the same public interest. Relying on Explanation 6 to Section 7 of the Civil Procedure Act, Article 156 of the Constitution, Section 43 of the Leadership and Integrity Act, and authorities such as *Africa Oil Turkana Limited (previously known as Turkana Drilling Consortium Ltd) & 3 others v Permanent Secretary, Ministry of Energy & 17 others* [2016] KECA 321 (KLR) where the Court of Appeal upheld and made reference to the decision in *Omondi v National Bank of Kenya Ltd and others* [2001] 1 EA 177 at page 183, which position was reiterated by the Court of Appeal in *John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others* (2015) eKLR, the 6th Defendant argued that the Plaintiff cannot evade *res judicata* by introducing additional defendants or recasting the dispute as a recovery suit. 4. Regarding limitation, the 6th Defendant submitted that the suit was filed approximately seven years after the alleged cause of action arose and is therefore statute-barred. They contended that the Plaintiff’s reliance on the exemption under Section 41 (1) (j) of the Limitation of Actions Act is misplaced because the liability arising from the contract had already been conclusively determined in the Commercial Case. Consequently, the statutory exemption cannot be invoked to revive a claim that has already been extinguished by the doctrine of *res judicata*. 5. The 6th Defendant also pointed out that the Plaintiff has abused the court process by commencing the present proceedings after the 6th Defendant had obtained judgment, initiated mandamus proceedings, and pursued contempt proceedings to enforce the decree. They argued that the EACC only commenced investigations nearly eight years after the contract was executed and after the Government had failed to satisfy the judgment, without offering any explanation for the delay. According to the 6th Defendant, the timing of the investigations and the institution of the present suit reveal collusion between the EACC and the Interested Party aimed at frustrating the enforcement of the Commercial Court’s judgment and denying the 6th Defendant the fruits of its decree. 6. In conclusion, the 6th Defendant maintained that the Plaintiff’s suit is *res judicata*, time-barred, and a clear abuse of the court process. They therefore urged the court to strike out the suit with costs, arguing that permitting the proceedings to continue would undermine the finality of litigation and the rule of law. 7. **The Plaintiff** filed submissions dated 21st May 2026 opposing the 6th Defendant’s application and contended that it is devoid of merit. They identified three issues for determination: whether the suit is statute-barred, whether it offends the doctrines of *res judicata* and *sub judice*, and whether the orders sought by the 6th Defendant should be granted. 8. On whether the suit is statute-barred, the Plaintiff submitted that the suit is not barred by the Limitation of Actions Act because it falls within the exception provided under section 42 (1) (j) of the Act, a provision which the Defendants failed to rebut. They argued that, under the Constitution, the Ethics and Anti-Corruption Commission Act, the Anti-Corruption and Economic Crimes Act (ACECA), and the Anti-Bribery Act, the EACC has the constitutional and statutory mandate to investigate corruption, economic crimes and bribery, and to institute recovery proceedings for public property and proceeds of corruption. 9. The Plaintiff contended that the present suit seeks to recover Kshs. 220,402,074.64, allegedly unlawfully acquired by the 6th Defendant through the impugned tender. They explained that their investigations were complex, involved international elements and financial inquiries, and therefore required considerable time before proceedings could be commenced. They further stated that before filing the suit, they were joined as an Interested Party in Milimani Commercial Case No. E100 of 2020 and Judicial Review Case No. E172 of 2022, but maintained that the Attorney General’s participation in those proceedings did not amount to representation of the EACC or the exercise of the EACC’s statutory mandate. Consequently, the Plaintiff submitted that their claim is exempted from limitation and is properly before the court. 10. On whether the suit is *res judicata* or *sub judice*, the Plaintiff argued that neither doctrine applied. They submitted that recovery of proceeds of corruption falls within the jurisdiction of the Anti-Corruption and Economic Crimes Division of the High Court rather than the Commercial Division, and therefore filing the present recovery suit does not offend the doctrine of *sub judice*. 11. The Plaintiff further relied on subsequent court directions, stating that proceedings in Commercial Case No. E100 of 2020 were stayed on 13th October 2025, while Judicial Review Case No. E172 of 2022 was suspended on 4th February 2026 pending the determination of the Commercial Case and the present ACEC suit. According to the Plaintiff, these directions demonstrated that the present proceedings are not duplicative. 12. Regarding *res judicata*, the Plaintiff submitted that the essential ingredients under Section 7 of the Civil Procedure Act have not been met because the parties in the Commercial Case and the present suit are different, the parties are litigating under different capacities and titles, the EACC was only joined as an Interested Party in the Commercial Case after the partial judgment, the issues of corruption, economic crimes and unethical conduct raised in the present suit were never pleaded, canvassed or determined in the Commercial Case, and the reliefs sought in the two proceedings are distinct. 13. The Plaintiff therefore contended that neither *res judicata* nor *sub judice* is applicable. They relied on *Kiki Investments Ltd & 2 others v Insurance Regulatory Authority* [2024] KECA 1316 (KLR) and *Ethics & Anti-Corruption Commission v Gikonyo & 3 others* [2023] KECA 456 (KLR) in support of its position. 14. On whether the 6th Defendant’s application should be allowed, the Plaintiff submitted that the 6th Defendant has failed to establish that the suit is statute-barred, *res judicata*, or *sub judice*, and therefore none of the orders sought should be granted. 15. They further argued that granting the application would elevate the private interests of the 6th Defendant over the public interest in combating corruption and recovering public funds. According to the Plaintiff, dismissal of the suit would expose the Government to substantial financial prejudice by jeopardizing the recovery of Kshs. 220,402,074.64 allegedly lost through corruption and facilitating payment of €2,232,500 pursuant to a partial judgment allegedly procured through fraudulent misrepresentation. 16. In conclusion, the Plaintiff urged the court to dismiss the 6th Defendant’s application with costs. They relied on the Supreme Court decision in *Ethics and Anti-Corruption Commission v Tom Ojienda & Associates & 2 others* [2020] KESC 56 (KLR), submitting that the fight against corruption and economic crime is a matter of significant public importance and that allowing the application would undermine the constitutional objective of combating corruption and recovering public assets. **ANALYSIS AND DETERMINATION** 1. Having considered the Notice of Motion application dated 4th September 2025, Replying Affidavits by the Plaintiff, 1st, 2nd, 3rd,5th and 6th Defendants, and submissions by the 6th Defendant and the Plaintiff, the issues for determination are: - 2. Whether the Plaintiff’s suit is statute-barred 3. Whether the suit is barred by the doctrines of *res judicata* or *sub judice* 4. Whether the Plaintiff’s suit constitutes an abuse of the court process 5. What orders on costs should issue **Whether the Plaintiff’s suit is statute-barred** 1. The 6th Defendant contended that the impugned procurement occurred between 2017 and 2018, yet the present proceedings were instituted in 2025, approximately seven to eight years later. They argued that the Plaintiff cannot invoke Section 42 (1) (j) of the Limitation of Actions Act because the contractual rights had already crystallized and culminated in the judgment delivered in Commercial Case No. E100 of 2020. 2. The Plaintiff, on the other hand, submitted that the suit is exempted from limitation by virtue of Section 42 (1) (j) of the Limitation of Actions Act, read together with Articles 79, 252 and 253 of the Constitution, the Ethics and Anti-Corruption Commission Act and the Anti-Corruption and Economic Crimes Act. They contended that the suit seeks recovery of public property allegedly acquired through corruption and economic crime. 3. This court agrees with the Plaintiff. The present proceedings are not based on an ordinary contractual dispute. Rather, they are proceedings instituted by the Ethics and Anti-Corruption Commission in exercise of its constitutional and statutory mandate to investigate corruption and recover public property alleged to have been lost through corruption. Article 79 of the Constitution established the Ethics and Anti-Corruption Commission, while Articles 252 and 253 confer upon constitutional commissions the power to investigate and institute proceedings. 4. Section 11 (1) (j) of the Ethics and Anti-Corruption Commission Act expressly empowers the Commission to institute and conduct proceedings for the recovery or protection of public property, while Sections 53, 55 and 56 of ACECA confer jurisdiction on the Commission to institute civil recovery proceedings. 5. The Supreme Court in ***Ethics and Anti-Corruption Commission v Tom Ojienda & Associates & 2 others* [2020] KESC 56 (KLR)**emphasized that: - “It is not in doubt that the fight against corruption and economic crimes is a matter of great public importance.” 1. Whether Section 42 (1) (j) of the Limitation of Actions Act ultimately applies is intertwined with the nature of the claim and the evidence to be presented at trial. At this interlocutory stage, this court is unable to conclusively determine that the suit is statute-barred without hearing evidence regarding the alleged corrupt procurement, concealment, investigations and recovery process. This court therefore declines to strike out the suit on grounds of limitation. **Whether the suit is barred by the doctrines of *res judicata* or *sub judice*** 1. The 6th Defendant argued that all the ingredients of Section 7 of the Civil Procedure Act were satisfied. They relied on the decision in Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR), where the Court of Appeal stated the following conditions for res judicata to apply: - 2. The suit or issue was directly and substantially in issue in the former suit. 3. That former suit was between the same parties or parties under whom they or any of them claim. 4. Those parties were litigating under the same title. 5. The issue was heard and finally determined in the former suit. 6. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 7. The Supreme Court reaffirmed the principles in **Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR).** 8. There is no dispute that Commercial Case No. E100 of 2020 concerns the same procurement contract. However, similarity of the underlying transaction alone is insufficient. This court must examine whether the causes of action and issues are identical. While the Commercial Court was concerned with contractual rights arising from an alleged breach of contract between Gregori International and Government entities, the present suit is fundamentally different. 9. The Plaintiff alleges corruption, fraudulent procurement, abuse of office, unlawful payments, breach of procurement law, and recovery of proceeds of corruption. These issues were neither pleaded nor determined in the Commercial Court. More importantly, EACC was not a substantive party in the Commercial Court proceedings when the partial judgment was delivered. Although it was later joined as an Interested Party, an Interested Party does not ordinarily prosecute an independent cause of action or seek substantive relief unless permitted by law. 10. In **Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR),** the Supreme Court explained the limited role of an interested party in litigation as follows: - **“Any interested party or amicus curiae that signalled that he or she intended to steer the court towards a consideration of ‘new issues’ could not be allowed to do that.”** 1. EACC cannot be said to have litigated its statutory recovery claim in the Commercial Court. This court is not persuaded that the Attorney General and EACC are interchangeable for the purposes of Section 7 of the Civil Procedure Act. The Attorney General represents Government in civil litigation under Article 156 of the Constitution. EACC exercises an independent constitutional mandate under Article 79 and the EACC Act. Accordingly, this court finds that the ingredients of res judicata have not been established. 2. Regarding sub judice, Section 6 of the Civil Procedure Act aims to prevent simultaneous adjudication of the same issues before courts of concurrent jurisdiction. 3. The Plaintiff has exhibited the directions issued by the High Court in relation to Commercial Case No. E100 of 2020, Judicial Review No. E172 of 2022, and the present proceedings. Those directions demonstrate judicial case management rather than duplication. The Commercial Court itself acknowledged the coexistence of these proceedings. Accordingly, the doctrine of sub judice is inapplicable. **Whether the Plaintiff’s suit constitutes an abuse of the court process** 1. This court appreciates the concern raised by the Defendants that multiple proceedings may lead to inconsistent outcomes. However, an abuse of process must be clearly demonstrated. 2. In ***Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others* [2009] KECA 453 (KLR),** the Court of Appeal observed that: - **“Again the Court of Appeal in Abuja, Nigeria in the case of ATTAHIRO v BAGUDO 1998 3 NWLL pt 545 page 656, stated that the term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it.”** 1. The present proceedings were instituted pursuant to statutory powers vested in the Plaintiff. Whether the allegations of corruption are ultimately proved is a matter for trial. At this stage, this court cannot conclude that the EACC has commenced these proceedings merely to frustrate the execution of the Commercial Court judgment. Indeed, allegations of corruption affecting procurement involve public interest considerations and, where properly pleaded, ought to be determined on evidence rather than summarily struck out. 2. This court is guided by the principle in ***DT Dobie & Company (Kenya) Ltd vs. Muchina* [1982] KLR** 1 that: - “… The power to strike out is a draconian power... It should be exercised with extreme caution and only in the clearest of cases.” 1. The present suit cannot be described as hopeless. It raises serious allegations of corruption, fraudulent procurement and the recovery of public assets, all of which require interrogation at a full hearing. 2. Accordingly, the Notice of Motion dated 4th September 2025 is dismissed. The Plaintiff's suit shall proceed to hearing on its merits. Costs of the application shall abide the outcome of the main suit. **Dated, Signed** and **Delivered** **Virtually** this **31st** day of **July 2026.** **R.E. OUGO** **JUDGE** **In the presence of: -** **Mr. Makori -For the Plaintiff** **Miss Maina -For the 1st Defendant** **Miss Munyoki h/b Mr. Mwangi Ndegwa - For the 2nd Defendant** **Miss Opiyo -For the 3rd Defendant** **Miss Raburu h/b Mr. Omondi - For the 4th Defendant** **Mr. Kalii -For the 5th Defendant** **Mr. Oange h/b Mr. Maruti -For the 6th Defendant** **For the Interested Party** **Adan/ Minah -C/A**