1. Tatu City Limited & 1 other v 1. Rosemary Wanja Mwangiru & 4 others
The bottom line
#Kenya's Court of Appeal ruled that parallel civil disputes cannot stop a criminal prosecution unless there is strong evidence of abuse of court process.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellants, sued as respondents in the constitutional petition, had a right of appeal
Yes. They were respondents, not interested parties, and the right to appeal belongs to any person; the appeal is a civil appeal from a constitutional determination, not an exercise of prosecutorial power.
The Court found the record showed the petitioners had sued the appellants as respondents. Rule 75(1) grants the right of appeal to 'any person', and Rule 77 requires notice of appeal to be served on all persons directly affected. An appeal against an order prohibiting prosecution is a civil appeal from a constitutional determination, not the institution of a criminal prosecution reserved to the DPP under Article 157. The preliminary objection was dismissed.
Whether the learned Judge misdirected herself on the facts in finding the caveats were at the heart of all the litigation
Yes. Only two of five civil cases related to the caveats and the criminal case concerned forgery of a Form CR 12, with no mention of caveats; the misapprehension was central to the finding of abuse and constituted a wrongful exercise of discretion.
The pleadings in the civil cases and the charge sheet were clear and unequivocal: the criminal charges alleged forgery and uttering of a company search document, not anything to do with the caveats. Construing the caveat issue as the heart of all litigation was a total misapprehension of the facts, which the Court held to be a reversible error compelling interference with the Judge's discretion.
Whether the appellants were properly described as 'galloping litigants' using the criminal process for collateral purposes
No. Given that three of the five cases were filed by the petitioners, the appellation was unwarranted, and there was no evidence that the appellants got state officers to act in breach of their mandate.
The Court held that serious allegations against state officers require solid evidence beyond mere allegations, and public officers enjoy a rebuttable presumption of good faith. The DPP and Attorney-General below had maintained there was a genuine complaint supported by a document examiner's report. The learned Judge erred in accepting Kuloba J's description without evidential foundation.
Whether the learned Judge misdirected herself on the law governing prohibition of criminal proceedings
Yes. She ought to have adopted an approach of deference and circumspection; section 193A of the Criminal Procedure Code forecloses prohibition merely because matters are also in issue in civil proceedings, and evidence of abuse was absent.
The Court reaffirmed that parallel criminal and civil proceedings may lawfully coexist, citing section 193A. While the High Court retains inherent power to stop oppressive or vexatious prosecutions (Githunguri line of cases), the complainant must place evidence before the court. Failing that, and applying the Indian and English authorities on sparing exercise of the power to quash prosecutions, the Judge's decision was plainly wrong.
Whether abuse of process had been pleaded in the petition
Yes, it had. Despite counsel's submission that abuse of process was not pleaded, the petition expressly alleged abuse of the criminal court process and fabrication of charges.
The Court pointed to paragraph 36 of the petition, which described use of the criminal process to compel settlement of a civil dispute as an abuse of process and a contravention of Article 48, and to paragraphs 55 and 61 alleging fabricated, false and malicious charges. This ground of appeal therefore failed.
Legal principles established
#- The right to appeal to the Court of Appeal belongs to any person affected, regardless of their role or description in the court below, and an appeal against an order prohibiting a prosecution is a civil appeal from a constitutional determination that may be filed by persons other than the DPP
- The mere co-existence of criminal and civil claims cannot justify halting criminal proceedings, as statutorily confirmed by section 193A of the Criminal Procedure Code
- A party alleging abuse of process or oppression must place before the court evidence backing up the complaint; bare allegations are insufficient, and the stoppage of criminal proceedings must issue only in exceptional circumstances
- The power to quash or stop criminal proceedings must be exercised very sparingly, with circumspection, in the rarest of rare cases
- There is a rebuttable presumption that public officers act in good faith, rebuttable only by evidence
- Preliminary objections are an improper instrument for striking out appeals, which should be brought by application under Rule 84 of the Court of Appeal Rules within thirty days
Court orders
#- 1.The preliminary objection is dismissed
- 2.The decision of the High Court is set aside and substituted by an order dismissing the petition
- 3.The petitioners to pay the costs of the petition
- 4.The appellants shall have the costs of this appeal to be paid by the 1st, 2nd and 3rd respondents
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Reference No. 165 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the Constitution and Court of Appeal Rules; the judgment does not cite a specific appellate provision
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v Kaburu (Criminal Case E1724 of 2024) [2026] KEMC 610 (KLR)[2026] KEMC 610 (KLR)29 Jun 2026applied
Cite this brief
#Cite this brief
Caselaw, "1. Tatu City Limited & 1 other v 1. Rosemary Wanja Mwangiru & 4 others", Case Analysis (2019). Civil Appeal No. 349 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/764/eng@2019-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.