The Roguish Litigant: ‘’Abuse of Process'' in Criminal and Civil Proceedings in Kenya

In litigation, it is common practice for litigants to argue through their legal representatives and in their pleadings that the conduct of a party or an application filed by a party amounts to an abuse of the process of the court. The question that lends itself for determination in this article is to what extent will a litigant’s act or conduct be deemed to be an abuse of the process of the court?

Abuse of process also referred to as abuse of the court process or abuse of the legal process occurs when a party unjustifiably and unreasonably uses the legal process to advance a cause of action. Typically, it entails a legal process that is set in motion so as to give a party an unfair litigation advantage. For one to prove abuse of process a two-stage test must be satisfied; (1) there must be an ulterior motive or purpose that has triggered the use of the process. (2) The act alleged to amount to an abuse of process is inconsistent with the manner in which regular prosecution of civil or criminal proceedings is conducted. The chief aim of a party that abuses the legal process is to accomplish an improper purpose that is not in accord with the ordinary object of the process. It must be manifest that the act offends the best interest of justice. A rigorous and perhaps obvious example of abuse of process is an unjustified arrest or a fallacious criminal prosecution.

Judges and Magistrates would virtually frown on the practice of abuse of process owing to the fact that it creates an inessential backlog of cases and wastes precious judicious time. The point to underscore is that a litigant must abide by the rules of procedure in court. Ideally, litigation is not a game of chess where players outsmart themselves by the dexterity of purpose and traps. Litigation is a contest by a judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks. In Muchanga Investments Limited vs Safaris Unlimited (Africa) Ltd & 2 others Civil Appeal No. 25 of 2002 (2009)?eKLR 229, the court emphatically stated as follows;-“The term abuse of court process has the same meaning as abuse of judicial process. The employment of the judicial process is regarded as 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 bonafide and frivolous, vexatious or oppressive

According to Order 2, Rule 15 (1) of the?Civil Procedure Rules, 2010, the court has the power to make an order at any stage in civil proceedings directing that a pleading be struck out on the ground that it amounts to an abuse of the court process and further order that a suit be dismissed and/or judgment entered. The Court in Satya Bhama Gandhi v Director of Public Prosecutions & 3 others?[2018]?eKLR made a deliberate effort to outline some of the instances which would fall within the realm of the definition of an abuse of the legal process. It rendered itself in the following manner; "The situation that may give rise to an abuse of court process is indeed exhaustive, it involves situations where the process of the court has not been used or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of the court process in addition to the above arises in the following situations:-

a)?????Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.

b)?????Instituting different actions between the same parties simultaneously in different courts even though on different grounds.

c)?????Where two similar processes are used in respect of the exercise of the same right for example a cross-appeal and respondent notice.

d)????Where an application for adjournment is sought by a party to an action to bring another application to the court for leave to raise an issue of fact already decided by the court below.

e)?????Where there is no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.

f)??????Where a party has adopted the system of forum shopping in the enforcement of a conceived right.

g)?????Where an appellant files an application at the trial court in respect of a matter which is already subject to an earlier application by the respondent at the Court of Appeal.

h)?????Where two actions are commenced, the second asking for a relief which may have been obtained in the first.

i)???????Abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent."

Abuse of the criminal process also occurs when the state agents or officers capriciously, recklessly and in utter disregard their constitutional imperative. ?In Thuita Mwangi & 2 Others vs. Ethics and Anti-Corruption Commission & 3 Others [2015] eKLR?the Court stated that: ‘’The discretionary power vested in the Director of Public Prosecution is not an open?cheque and such discretion must be exercised within the four corners of the Constitution. It must be exercised reasonably within the law and to promote the policies and objects of the law which are set out in Section 4 of the Office of Director of Public Prosecution Act. These objects are as follows: the diversity of the people of Kenya; impartiality and gender equity; the rules of natural justice, promotion of public confidence in the integrity of the office; the need to discharge the functions of the office on behalf of the people of Kenya, the need to serve the cause of justice; prevent abuse of legal process and public interest, protection of the sovereignty of the people; secure the observance of democratic values and principles and promotion of constitutionalism. The court may intervene where it is shown that the impugned criminal proceedings are instituted for other means other?than the honest enforcement of criminal law, or are otherwise an abuse of the court process’’.

As per the court in Justus Mwenda Kathenge v Director Of Public Prosecutions & 2 others [2014] eKLR abuse of process also occurs where a prosecution is based on a complete misapprehension of the facts and the applicable law and where a suspect is being lumped together with others for no credible reason, of the process of the court. In?Anthony Murimi Waigwe v Attorney General & 4 others [2020) eKLR?the Court took to the view that the Prosecutor has a duty to analyze the case before prosecuting it and it should let free those whom there is no prosecutable case against them. Under Article 157 (1) of the Constitution the Director of Public Prosecution is enjoined in exercising the powers conferred by the Constitution to take into account the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process. The interest of the administration of justice dictates that only those whom the DPP believes have a prosecutable case against them be arraigned in Court and those who DPP believes have no prosecutable case against them be let free. This is why Article 159 (2) of the Constitution is crying loudly every day, every hour that "justice shall be done to all, irrespective of status". Justice demands that it should not be one way and for some of us but for all of us irrespective of who one is or what one has.

Abuse of criminal processes in a bid to settle personal scores is prevalent within the criminal justice system in Kenya.?Political opponents use the office of the Director of Public Prosecution (DPP) to proffer tramped-up criminal charges against other political opponents. Litigants must not use the process of the court to settle personal scores. This implies that the courts do not allow its function as a court of law to be misused and will summarily prevent its machinery from being used as a means of vexation or of oppression in the process of litigation. It follows that where there is an abuse of the court process there is a breach of a person's fundamental rights under article 50 of the Constitution of Kenya to receive a fair trial. It is the duty of the court to stop such abuse of the justice system. The criminal process ought not to be used to harass or oppress another person by instituting criminal proceedings. If the court is convinced that criminal or civil proceedings have been instituted as a result of an ulterior or improper motive other than genuine enforcement of the law, it has the power to intervene and stop further prosecution of an accused or defendant and prevent further abuse and misuse of the process of the court.