Registered Trustees of the Sisters of Mercy (Kenya) t/a Mater Hospital v Muriithi & 5 others (Civil Appeal 20 of 2019) [2024] KECA 1688 (KLR)
The bottom line
#The Court of Appeal confirmed Kenyans can sue for corruption losses in civil court without waiting for a criminal conviction, but must file in the Civil Division.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a private person can institute civil proceedings under sections 51 and 52 of the Anti-Corruption and Economic Crimes Act before a conviction has been entered against the defendant for corruption or economic crime or receipt of an improper benefit
- 2.Whether the forum for instituting such a suit is the Anti-Corruption and Economic Crimes Division of the High Court
- 3.Whether the suit, having been filed in the wrong Division, should be struck out or transferred (cross-appeal)
Key legal issues
#Whether civil liability under sections 51 and 52 ACECA is predicated on conviction
No; liability arises from conduct that constitutes corruption or economic crime, with conviction only required for compensation orders under section 54
The court contrasted the language of sections 51 and 52 ('does anything that constitutes') with section 54 (compensation on conviction). It also drew support from section 55 forfeiture proceedings, where reading 'constitutes' as 'convicted of' would defeat the non-conviction-based design of the statute. It found it unfair to require a victim to await a criminal conviction, with its higher standard of proof, before pursuing civil compensation on a balance of probabilities.
The proper forum for private civil suits under sections 51 and 52 ACECA
The Civil Division of the High Court, not the Anti-Corruption and Economic Crimes Division
The Chief Justice's Practice Directions of 9th December 2016 confer on the ACEC Division jurisdiction over matters including 'the payment of compensation of proceeds of corruption', which the court read as referring to enforcement of compensation orders under section 54(4), not original civil claims under sections 51 and 52. Such suits belong in the Civil Division, or the ordinary High Court or subordinate court depending on pecuniary jurisdiction.
Whether the trial court erred in holding that section 54 must 'come to play first'
The Court could not uphold that finding; sections 51 and 52 stand independently of section 54
The Court held the trial judge erred in reading sections 51 and 52 as dependent on section 54. It nonetheless affirmed the judge's conclusion on forum, agreeing the suit ought to have been filed in the Civil Division. This partially reverses and partially affirms the decision below.
Whether the suit should have been struck out (cross-appeal)
No; transfer was the correct remedy since the defect was one of forum, not jurisdiction
Having found the suit was filed in the wrong Division for administrative reasons rather than want of jurisdiction, the Court held the trial judge could not be faulted for ordering transfer. Striking out was not available, so the 1st respondent's cross-appeal failed in its entirety.
Legal principles established
#- Civil liability under sections 51 and 52 of the ACECA arises upon conduct constituting corruption or economic crime, not upon conviction; civil proceedings for compensation under those sections need not be preceded by a conviction.
- Compensation orders under section 54 are conviction-based, and this contrast confirms that sections 51 and 52 create non-conviction-based civil liability.
- Civil proceedings under sections 51 and 52 of the ACECA belong in the Civil Division of the High Court (or the ordinary High Court/subordinate court), not the Anti-Corruption and Economic Crimes Division.
- Where a suit is filed in the wrong Division of the High Court for administrative rather than jurisdictional reasons, the proper course is transfer, not striking out.
Court orders
#- 1.Appeal allowed partially to the extent that the appellant can pursue a private action for compensation pursuant to sections 51 and 53 of the ACECA without first obtaining a conviction against the respondents, but at the Civil Division of the High Court at Nairobi
- 2.Cross-appeal dismissed in its entirety
- 3.Each party to bear its own costs on both the appeal and the cross-appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Anti-Corruption and Economic Crimes Division
- HC ACEC No. 03 of 2018
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court (the judgment does not cite a specific provision; the matter is a first appeal on issues of law)
Relief refused
#1st respondent's cross-appeal seeking striking out of the suit
The suit was in the improper forum on account of administrative arrangement of the High Court, not lack of jurisdiction, and could not be struck out
Appellant's contention that the Anti-Corruption and Economic Crimes Division is the proper forum
The Practice Directions did not intend to inundate the Division with civil proceedings under sections 51 or 52 brought by private persons
Costs
Each party to bear its own costs on both the appeal and the cross-appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Ultimately, the appeal partially succeeds to the extent that the appellant can pursue a private action for compensation pursuant to Sections 51 and 53 of the Anti-corruption and Economic Crimes Act without first obtaining a conviction against the respondents but at the Civil Division of the High Court at Nairobi. The cross appeal fails in its entirety. Each party to bear its own costs on both the appeal and the cross-appeal.
civil proceedings for compensation or recovery of improper benefit under section 51 or 52 are neither predicated upon nor triggered by conviction for the ofience of corruption or economic crime
A private person has a right to institute legal proceedings for damage sufiered as a result of corruption.
The suit was in the improper forum not because of jurisdictional considerations but on account of the administrative arrangement of the High Court and it could never be amenable for striking out.
Those can be instituted in the Civil Division of the High Court or in stations where the division does not exist, in the High Court of such station and where the pecuniary amount is within the jurisdiction of the subordinate court, of the relevant subordinate court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Registered Trustees of the Sisters of Mercy (Kenya) t/a Mater Hospital v Muriithi & 5 others (Civil Appeal 20 of 2019) [2024] KECA 1688 (KLR)", Case Analysis (2024). Not stated in judgment (arising from HC ACEC No. 03 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1688/eng@2024-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.