[2016] KEHC 8544 (KLR)
The court found that the Nairobi City Council abused the court process by failing to disclose the existence of related proceedings in other courts and by not enjoining Grace Wairimu Sorora, a necessary party. The consent order was obtained by misleading the court, as not all material facts were disclosed. The...
Source-derived case information.
- Citation
- [2016] KEHC 8544 (KLR)
- Parties
- Applicant: Nairobi City Council; Respondent: Directorate of Criminal Investigations; Respondent: The National Police Service; Interested Party: Chaka Limited; Applicant: Grace Wairimu Sorora
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 323 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Previous Orders and for Costs
- Outcome
- Application allowed. Orders granted in terms of Prayers 2, 3 & 4. Costs awarded to the applicant against Nairobi City Council and the Respondents.
- Judges
- LK Kimaru
- Legal Topics
- Abuse of Court Process, Non Disclosure of Material Facts, Joinder of Parties, Forensic Investigation, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nairobi City Council
Applicant
Directorate of Criminal Investigations
Respondent
The National Police Service
Respondent
Chaka Limited
Interested Party
Grace Wairimu Sorora
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Previous Orders and for Costs
Legal Issues
- 1 Whether the application filed by Nairobi City Council was an abuse of the court process.
- 2 Whether there was material non-disclosure regarding pending proceedings in other courts.
- 3 Whether Grace Wairimu Sorora was a necessary party who should have been enjoined.
Ratio Decidendi
The court found that the Nairobi City Council abused the court process by failing to disclose the existence of related proceedings in other courts and by not enjoining Grace Wairimu Sorora, a necessary party. The consent order was obtained by misleading the court, as not all material facts were disclosed. The proceedings were commenced for an ulterior purpose, namely to assist Chaka Limited in its property claim and to procure a forensic report to rebut an earlier genuine report. The court emphasized its duty to prevent abuse of process and to act decisively when the judicial process is being misused. Consequently, the application dated 25th January 2016 was allowed, and costs were...
Court Disposition
Application allowed. Orders granted in terms of Prayers 2, 3 & 4. Costs awarded to the applicant against Nairobi City Council and the Respondents.
Orders
- Application dated 25th January 2016 allowed in terms of Prayers 2, 3 & 4.
- Costs of the application awarded to Grace Wairimu Sorora, to be paid by Nairobi City Council and the Respondents.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION NO.323 OF 2015
NAIROBI CITY COUNCIL.............…….…………………….…………………………APPLICANT
VERSUS
DIRECTORATE OF CRIMINAL INVESTIGATIONS...…………….……………1ST RESPONDENT
THE NATIONAL POLICE SERVICE...................................................................2NDRESPONDENT
CHAKA LIMITED.............................................................................................INTERESTED PARTY
AND
GRACE WAIRIMU SORORA...................................................PRESENT APPLICANT
RULING
The application dated 25th January 2016 is for allowing for the following reasons:
The application filed on 16th September 2015 was filed in abuse of the due process of this court.
The applicant in that case, Nairobi City Council, did not disclose to the court critical and material information that there were other proceedings pending before the Land & Environment Court and the Court of Appeal over the same subject matter that they were canvassing before the court.
The said applicant ought to have enjoined the present applicant i.e. Grace Wairimu Sorora in the proceedings because she was a necessary party to the proceedings and would be affected by any orders that may be issued by the court.
The consent or the purported consent recorded in court on 21st October 2016 was obtained after this court was misled and duped because not all material facts were placed before the court for its consideration.
The said proceedings were commenced with ulterior purposes i.e. The police do not require a court order to investigate an alleged crime that has been reported to them. They do not require an order from the court not hearing the case to forensically examine documents which are alleged to be forged. It is clear to this court that the said order was obtained specifically to enable SP John Muinde to prepare another Forensic report to rebut an earlier report that had been prepared which had declared the particular documents presented to him to be genuine. It is clear to this court that the said proceedings were intended to assist Chaka Limited to advance its claim for the property that the present applicant is in occupation of.
Where the court forms the opinion that a litigant is misusing the court process to advance or to subvert the course of justice, the court must act decisively to prevent such abuse from continuing or from such litigant making a mockery of the judicial process.
From the foregoing, the application dated 25th January 2016 shall be allowed in terms of Prayers 2, 3 & 4. The applicant shall have the costs of the application which shall be paid by the Nairobi City Council and the Respondents.
DATED AT NAIROBI THIS 21ST DAY OF APRIL 2016
L. KIMARU
JUDGE