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Court of AppealPartially AllowedNairobi ACEC No 14 of 2018 (OS) – Appeal against ruling of H Ong’udi, J· [2023] KECA 456 (KLR)

Ethics & Anti-Corruption Commission v Gikonyo & 3 others (Civil Appeal 454 of 2018) [2023] KECA 456 (KLR)

Court of Appeal
20 April 2023
4,552 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that freezing assets pending investigation doesn't prevent a later forfeiture case over the same property.

What this practically means

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Executive summary

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The Ethics and Anti-Corruption Commission instituted ACEC No 14 of 2018 (OS) under section 55 of the Anti-Corruption and Economic Crimes Act seeking forfeiture of properties and moneys allegedly constituting unexplained assets, together with interim injunctive relief under section 56A. The 1st respondent raised a preliminary objection contending that the suit was res judicata, having been determined in Nairobi HC Misc App No 98 of 2016, in which Sergon, J had on September 9, 2016 set aside freezing orders earlier obtained by the Commission. The 4th respondent, a purchaser of the Nyali property, sought joinder and orders restraining his interrogation. The High Court (H Ong’udi, J) upheld the preliminary objection, excluded the listed properties from the Summons, and allowed the 4th respondent’s Motion. On appeal, the Court of Appeal (Musinga, P, Laibuta and Ngenye-Macharia, JJA) framed five conjunctive questions mirroring section 7 of the Civil Procedure Act and the elements set out in IEBC vs Maina Kiai. It held that the preservation application in the Misc App and the forfeiture Summons raised issues that were 'world’s apart'; the parties and titles differed; and preservation orders, being interlocutory, could not have finally determined forfeiture. The appeal was allowed: the High Court ruling of November 23, 2018 was set aside, the preliminary objection struck out and the 4th respondent’s Motion dismissed with costs to the Commission, and the forfeiture suit remitted to the High Court for hearing on its merits. Costs of the appeal were awarded to the Commission against the respondents.

Key legal issues

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01

Whether the doctrine of res judicata barred the forfeiture Summons

Holding

It did not; the preservation application and the forfeiture Summons raised different issues between different parties under different titles, and the preservation orders were interlocutory and never finally determined forfeiture.

Reasoning

The Court applied the conjunctive test in section 7 of the Civil Procedure Act as elaborated in IEBC vs Maina Kiai. The earlier Misc App sought preservation of assets pending investigations under section 56 ACECA, whereas the later Summons sought forfeiture of unexplained assets under section 55. The parties and titles also differed, and no issue was heard and finally determined in the former proceedings.

p. 7
02

Effect of lifting of freezing orders on a subsequent forfeiture claim

Holding

Whether freezing orders are lifted or maintained, the fate of the suit properties on forfeiture can only be determined at the hearing of the forfeiture suit against all persons claiming an interest.

Reasoning

The Court held that an application for preservation orders is interlocutory and cannot determine with finality the outcome of a forfeiture application. Finality on forfeiture requires determination against every person claiming to be lawful proprietor, beneficial owner or trustee at the hearing of the section 55 suit.

p. 8

Legal principles established

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  • For res judicata to apply, the five elements must all be satisfied conjunctively; orders for preservation or freezing of property pending investigations do not finally determine questions of forfeiture under section 55 of ACECA, and a later forfeiture suit on the same properties is not barred.

Court orders

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  1. 1.The ruling and orders of the High Court (H Ong’udi, J) dated November 23, 2018 be and are hereby set aside
  2. 2.The impugned orders be substituted for orders striking out the 1st respondent’s preliminary objection dated July 30, 2018 with costs to the appellant
  3. 3.Dismissing the 4th respondent’s Notice of Motion dated August 20, 2018 with costs to the appellant
  4. 4.The appellant’s case, ACECA No 14 of 2018, be and is hereby remitted to the High Court for hearing and determination on its merits
  5. 5.The costs of the appeal be borne by the respondents
On appeal from
High Court of Kenya at Nairobi
ACEC No 14 of 2018 (OS); arising from Nairobi HC Misc App No 98 of 2016
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act against an interlocutory ruling of the High Court in an anti-corruption forfeiture suit under ACECA

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, "Ethics & Anti-Corruption Commission v Gikonyo & 3 others (Civil Appeal 454 of 2018) [2023] KECA 456 (KLR)", Case Analysis (2023). Nairobi ACEC No 14 of 2018 (OS) – Appeal against ruling of H Ong’udi, J. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/456/eng@2023-04-20

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