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-Vexatious proceeding refers to a claim which is pursued where there is plainly no prospect of success or, where the motive of the party instituting such a claim is aimed at harassing the Defendant.
-Vexatious proceedings are governed by the Vexatious Proceedings Act, CAP 41 Laws of Kenya, which empowers the High Court under Section 2 thereof to declare a person a vexatious litigant.
-The Act is aimed at preventing abuse of the court process by vexatious litigants to the prejudice of other parties.
-A vexatious litigant is defined in Section 2(1) of the Act as one who habitually and persistently and without any reasonable ground institutes vexatious proceedings. The section provides as follows:
“If, on an application made by the Attorney-General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground instituted vexatious proceedings, whether civil or criminal, and whether in the High Court or in any subordinate court, and whether against the same person or against different persons, the Court may, after hearing that person or giving him an opportunity of being heard, make an order declaring such person to be a vexatious litigant.”
-In re Matter of Nature Green Holdings [2018] eKLR, the court cited with approval the description of a vexatious litigant adopted by court in ONELL V Deacons 2007 AD QB 754 as follows:
“What the various common law and statutory criteria suggest is that vexatious litigants are those who persistently exploit and abuse the processes of the court in order to achieve some improper purpose, or obtain some advantage. Vexatious litigants tend to be self-represented and quite often the motivation appears to punish or wear the other side down through the expense of responding to persistent, fruitless applications. This is why the failure to pay costs to such applications is a significant element in determining whether a litigant is vexatious.”
-In Re Langton [1966] 3 All E.R. 576 the court declared the Respondent therein a vexatious litigant and, subsequently ordered that she be prohibited from instituting proceedings in the High court or any other court without leave of the High Court or a judge; which leave would only be granted upon satisfaction that such proceedings are not an abuse of the court process and that there is prima facie ground for such proceedings. The court further ordered that any legal proceedings instituted by the litigant in any court before the making of the order be not continued by the litigant without any such leave aforesaid. The court expressed itself as follows :
“However, ever since then it is perfectly clear that the litigant has been attempting to re-litigate, in one form or another, that very matter which was decided by REES, J and by the Court of Appeal, who dismissed an appeal from the judge. I find it unnecessary to go through these proceedings in detail; there have been following the original action some ten actions over the last eight years. Those actions have taken various forms. They have taken the form of attempting to set aside the judgment of REES, J on the ground that it was obtained by fraud; there have been attempts to re-litigate the matter by setting aside orders made in the proceedings by the Registrar and there has been a proceeding to set aside the original order made before all this litigation commenced in 1957. Finally, action has been instituted claiming that all the judgments and orders of the court in all the preceding actions in the matter be set aside as being obtained by fraud. Some of those actions have been dismissed and are at the end. Others are in various stages but it is perfectly clear that the litigant has been habitually and persistently and without any reasonable ground instituting in an attempt to re-litigate the matter which was fully dealt with in the first action. Looking at the whole history of the matter, the general character of the proceedings and the results, that conclusion is inevitable.”
-The principles that will usually guide court in determining whether or not to declare a party a vexatious litigant were laid down by the Canadian court in Lang Michener Lash Johnston v. Fabian, 1987 CarswellOnt 378 (H. Ct.) as cited in McKee v. McKee, 2018 ONSC 4948 as follows:
Analysis: The Vexatious Litigant The principles of a vexatious litigant as enumerated in Lang Michener Lash Johnston v. Fabian, 1987 CarswellOnt 378 (H. Ct.) are:
(a) The bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction constitutes a vexatious proceeding;
(b) Where it is obvious that an action cannot succeed, or if the action would lead to no possible good or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
(c) Vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) It is a general characteristic of vexatious proceedings that grounds and issues;
(e) Raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(f) In determining whether proceedings are vexatious, the Court must look at the whole history of the matter and not just whether there was originally a good cause of action;
(g) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and
(h) The respondent’s conduct and persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
The Act applies to persons acting both in individual and representative capacities
-During the hearing of Re Langton [1966] 3 All E.R. 576, the counsel for the litigant argued that “any person” should be given a restricted meaning as applying to only persons acting in a purely personal capacity. The counsel pointed out that in that matter all except four of the actions had been instituted by the litigant as an administrator of the estate of his deceased mother and that therefore actions so commenced ought not to have been considered by the court in deciding whether they are satisfied that the litigant has habitually and persistently and without reasonable ground instituted vexatious legal proceeding. Lord Parker C.J. addressed the issue as follows:
“I am quite unable to see any ground for giving a restricted meaning there to “any person”. Certainly it covers any person acting in a representative capacity or fiduciary capacity. After all as the solicitor general has said, the whole purpose of this section is to protect those whom these actions are being brought, and to prevent them from being subjected to the burden of costs which they will never recover. In my judgment, there is no ground for giving any restricted meaning to the words; accordingly I think this is a proper case in which an order should be made.”
Procedure to have a party declared a vexatious litigant
-A declaration that a party is a vexatious litigant can only be made at the instance of the Attorney General as he is the only person vested with the mandate to institute such proceedings under Section 2(1) of the Act cited hereinabove.
-What this means is that a party who wishes to have another declared a vexatious litigant should refer the same to the Attorney General who will then file an application to have the party declared as such which application will usually be supported by an affidavit declared by the party who referring the matter to the Attorney General and/ or their advocate.
-Upon institution of the suit by the Attorney General, the party against whom such orders is given an opportunity to give a reasonable explanation as to why he should not be declared as such.
-This was so held by the court in Environment and Land Case 285 of 2014 - Gerald Munene Mugo v Muriithi Maganjo & 2 others [2016] eKLR wherein the court stated as follows:
“The statute which governs vexatious proceedings is the Vexatious Proceedings Act Chapter 41 Laws of Kenya which empowers the Court, by Section 2 thereof, to declare a person a vexatious litigant. However, such declaration would need to be made in an application filed at the instance of the Attorney General. Secondly, the orders to declare one a vexatious litigant can only be made after the Court grants that person an opportunity to be heard in those proceedings. Having said so, a vexatious proceeding refers to a claim which is pursued where there is plainly no prospect of success or where the motive of the plaintiff is aimed solely at harassing the defendant. Such a proceeding is usually instituted without good or just cause. It is also synonymous with what can be termed as an abuse of the process of the Court.
Consequence of being declared a vexatious litigant
-A court order declaring a party a vexatious litigant will usually be published in the Kenya Gazette in line with Section 2(3) of the Act.
-The effect of such an order is that the person against whom the order is granted can only institute suit or continue to prosecute any suit instituted before the issuance of the order upon obtaining leave of the court.
-Court will usually not grant such leave unless sufficient cause is shown by the person that institution or continuance of such suit will not amount to an abuse of the court process and that there is a prima facie ground for the suit. This is so provided under Sections 3 and 4 of the Act which reads as follows:
-Restraint of civil proceedings
“No suit shall, except with leave of the High Court or of a judge thereof, be instituted by or on behalf of a vexatious litigant in any court, and any suit instituted by him in any court before the making of an order under section 2(1) of this Act shall not be continued by him without such leave; and such leave shall not be given unless the Court or the judge is satisfied that the suit is not an abuse of the process of the court and that there is a prima facie ground for the suit.”
-In the case of criminal proceedings, a vexatious litigant can only institute proceedings upon obtaining leave from the Attorney General under Section 4 of the Act which provides as follows:
-Restraint of criminal proceedings
No criminal proceedings shall, except with the written consent of the Attorney General, be instituted by a vexatious litigant in any court.
-In Attorney General v Rachel Wacera Kareithi the Attorney General applied to have the Respondent declared vexatious for duly interfering with the administration by the Public Trustee of the deceased’s estate without her having applied for or being granted letters of administration. The Respondent had filed numerous suits against the Public Trustee and had, therefore, by her conduct made it practically impossible for the public trustee to discharge his duties in regard to the administration of the estate of the deceased. The Attorney General also sought an order to restrain the Respondent from continuing without leave o the court the prosecution of any litigation which she may have instituted prior to the granting of such declaration.
The court in declaring the Respondent a vexatious litigant held as follows:
“In opposition to the present motion and in reply to the affidavits filed in support of it, the respondent filed or lodged in Court a number of lengthy and somewhat abrasive affidavits and statements; the most recent of which (filed on 13th June 1979) contains several irresponsible suggestions and allegations which, had I been asked to do so, I would order to be expunged. Having heard both counsel for the applicant and the respondent in person (who preferred to appear without legal representation) I am satisfied that, although the number of separate suits involved is not great, the manner in which she has instituted and conducted several of those to which I have referred is such that the respondent is, and should be declared, a vexatious litigant for the purpose of the Act; and it is so ordered.”
-However, with regards to the second prayer to restrain the Respondent from continuing with prosecution of any suits already instituted prior to the issue of the order without leave, the court analysed the effect of Section 3 of the Act and proceeded to determine as follows:
“Section 2(1) of the Act enables the Court, if satisfied that a person has habitually and persistently and without any reasonable ground instituted what the Act terms “vexatious proceedings” and after hearing or affording him an opportunity of being heard, to make an order declaring that person to be a vexatious litigant.
Section 3 provides: No suit shall, except with leave of the High Court or of a judge thereof, be instituted by or on behalf of a vexatious litigant in any Court, and such leave shall not be given unless the Court or the judge is satisfied that the suit is not an abuse of the process of the court and that there is a prima facie ground for the suit.
The effect of section 3 is to preclude the present respondent, having been declared to be a vexatious litigant, from instituting any further suits without leave of the court; and the question is whether, in addition to its powers under the section, the Court can impose a similar injunction upon her in regard to any of the existing suits"
-I disagree with the court’s interpretation of section 3 of the Act as the wording therein is very clear that the effect of being declared a vexatious litigant is two- fold:
i. The vexatious litigant can only file a new suit upon obtaining leave of the court.
ii. Any suit instituted by the vexatious litigant prior to the order declaring him as such can only be continued upon obtaining leave.
Does the court have inherent power to declare a party a vexatious litigant?
-In James Mwashori Mwakio v Kenya Commercial Bank Ltd & another [2014] eKLR the litigant kept filing multiple applications at the Court of Appeal all of which sought interpretation of a judgment delivered by the same court on 3rd April 1984. By that judgment, the Court of Appeal had remitted the proceedings to the High Court to proceed to trial in the usual way.
The suit was heard and dismissed by the High Court on 14th April 1986 following which Mr. Mwashori moved to the Court of Appeal seeking enforcement of judgment delivered by Court of Appeal 3rd April 1984 which he alleged had been ‘disobeyed’ by the High Court. Mr. Mwashori was under the misguided impression that the Court of Appeal judgment had finally decided his rights in his favour and that the High Court had no jurisdiction to go beyond the scope of that judgment when in fact the judgment did not finally decide anything but simply remitted the suit back to the High Court for hearing and determination.
-The Appeal was dismissed with costs for lack of merit, which dismissal gave birth to myriad of applications to the Court of Appeal even though in mutated forms but all of which sought interpretation of the judgment of 3rd April 1984.
-The court had on several occasions advised the applicant that it was functus officio as the issue raised in all his applications had been conclusively determined and even gone ahead to warn the litigant against filing further applications as he risked his case being referred to the Attorney General under provisions of Section 2 of the Vexatious Proceedings Act seeking orders that he be declared a vexatious litigant.
-The litigant however did not heed to the court’s advice but instead kept filing applications similar to those that had been earlier determined.
-The Court of Appeal acting on its on motion, declared the Plaintiff/Applicant therein a vexatious litigant and ordered the court Registry to desist from accepting any further applications from him as follows:
“The time has come for this Court to decisively put its foot down and put an end to the chorus that litigation must come to an end.
This Court has the responsibility under Section 3A and 3B of the Appellate Jurisdiction Act to facilitate the just, expeditious, proportionate and affordable resolution of appeals.
Under Section 3B of the said Act, an advocate in an appeal has a duty to assist the court in furthering the overriding objective and to comply with directions and orders of the court. Invariably, this provision extends to parties who appear before us in person. They are not exempted from this duty. Mr. Mwakio is not exempted from this duty and it is high time that he desists from filing frivolous applications in flagrant disobedience of this Court's directions. There is nothing left for us to say in this matter that has not been said by other Honourable Judges of this Court who have dealt with the same for the last few decades.
We make a finding that the application before us is totally devoid of merit. The same is hereby dismissed with costs to the respondent. We further direct that the registry shall not accept any other application filed by the applicant herein in respect of this matter.”
-From the foregoing, the Court can exercise inherent power under Sections 3A and 3B of the Civil Procedure Rule to declare a vexatious litigant so as to stop him from further abusing the court process and prejudicing other parties.
Remedy in the event the Attorney General fails to institute suit-
-Article 47 of the Constitution guarantees administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
-The above is in Section 4 of the Fair Administrative Actions Act (FAAA), which Act was enacted to give effect to Article 47 of the Constitution.
-In the event that, the Office of the Attorney General, an administrative body fails to act or to discharge a duty imposed under written law, a party may apply to court for review under Section 7(2)(j). The section provides as follow:
Institution of proceedings
A court or tribunal under subsection (1) may review an administrative action or decision, if- There was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under written law.
Upon filing an application for judicial review, the court may grant an order compelling the administrator to discharge the duty imposed by law under Section 11(1)(f) which provides as follows:
Orders in proceedings for judicial Review
In proceedings for judicial review under Section 8(1) the court may grant any order that is just and equitable, including an order:
Compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right.
An order of mandamus will usually be granted by court to compel a public body to discharge its statutory duty more so in situations where there is a specific legal right but no specific remedy for enforcing that right as is the case under the Vexatious Proceedings Act.
In Shah vs. Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543 where Goudie, J expressed himself as follows: “Mandamus is a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent. Thus it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual.
The Courts will not intervene to compel an action by an executive officer unless his duty to act is clearly established and plainly defined and the obligation to act is peremptory…”
Conclusion
-The Plaintiffs/Applicants in the Juja Coffee matter fall within the definition in section 2 of the Act and fit well within the criteria set out in Lang Michener Lash Johnston v. Fabian, 1987 CarswellOnt 378 (H. Ct.).
-In order to stop them from continuing to abuse the court process, it is advisable that we refer the matter to the Attorney General to institute proceedings to have them declared vexatious litigant and consequently to stop them from instituting any other suits or proceeding with the prosecution of the pending suit without leave of the court.
-In the event that the office of the Attorney General fails to institute the proceedings, we can apply to court for an order of mandamus to compel them to institute the suit.

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