Kenya Revenue Authority v Shijenje & 3 others (Civil Appeal E450 of 2021) [2026] KECA 1603 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that KRA can continue investigating tax crime suspects after they plead, and that vague constitutional petitions can't block such investigations.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred by holding that the appellant violated the 1st and 2nd respondents' constitutional rights under Articles 27, 28, 29(a), 39, 31, 47, 49(1)(a)(i), (c) & (h) and 50 of the Constitution
- 2.Whether the learned judge erred in finding that the appellant carried out further investigations as against the 1st and 2nd respondents, thus violating their constitutional rights
- 3.Whether the learned judge erred in failing to address the issue of forum shopping and abuse of the court process
Key legal issues
#Whether the KRA letters of 8th and 28th March, 2019 amounted to further investigations violating the right to fair trial under Article 50
The letters amounted to further investigations, but post-plea investigations by a state agency are lawful and did not infringe the respondents' right to a fair trial, provided any new evidence is disclosed to the accused under Article 50(2)(j), (k) and (l).
The Court agreed with the trial judge that the content and tone of the letters showed further investigations, not mere correspondence, since failure to comply would be an offence. However, it disagreed that this violated Article 50: the law permits continuous investigation after plea-taking as the prosecution prepares for trial, and the investigating agency remains bound to disclose any new material to the accused so they can prepare their defence.
Whether the respondents pleaded and proved the constitutional violations claimed
The respondents did not plead the violations of Articles 27, 28, 29(a), 39, 31, 47, 49(1)(i), (c), (h) and 50 with exactitude nor substantiate them; unsupported allegations of harassment fail.
Applying the Anarita Karimi Njeru rule as restated in Mumo Matemu, the Court found the petition and supporting affidavit contained only unsubstantiated averments, such as claims of night calls, with nothing on record proving them. Pleadings define the issues and give fair notice; a petitioner must state the precise right violated, show how the injury was caused, and support the claims with a sworn affidavit.
Whether the respondents engaged in forum shopping and abuse of court process
Yes. By filing a constitutional petition in the High Court duplicating a pending application in the Magistrates' Court on the same parties, grounds and reliefs, the respondents forum shopped and abused the court process, contrary to the doctrine of constitutional avoidance.
The trial judge failed to address the pleaded issue of forum shopping, an omission which vitiated the judgment. On re-appraisal, the Court found the petition almost word for word identical to the Notice of Motion pending in the criminal case; the Magistrates' Court had jurisdiction over the issues, which raised no substantial constitutional questions. The Court decried multiplicity of suits over the same subject matter as wasting judicial resources and undermining the justice system.
Legal principles established
#- Continuous investigation in criminal matters after plea-taking is permitted; the prosecution or a state agency may gather further intelligence, documents or witness statements post plea-taking, subject to the duty of disclosure under Article 50(2).
- A constitutional petition violates the doctrine of constitutional avoidance where it masks an ordinary civil, criminal or administrative dispute to by-pass a lower court or to forum shop; a constitutional petition is only tenable if it raises distinct, substantial questions the lower court lacks competence to handle.
- A petitioner asserting constitutional violation must plead the precise right violated with reasonable precision and substantiate how it was infringed.
- A trial court must address all issues raised and answered by the parties; failure to consider pleaded issues vitiates the judgment.
Court orders
#- 1.The judgment delivered on 28th January, 2021 is set aside and High Court Petition No. 139 of 2019 is dismissed
- 2.Each party shall bear its costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court
- High Court Petition No. 139 of 2019
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules, rule 31(1)(a), in an appeal from the High Court's constitutional petition judgment
Relief refused
#Appellant's prayer for costs of the appeal
The Court ordered that each party bear its own costs rather than awarding costs to the appellant as sought
Costs
Each party shall bear its costs.
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.
The judgment delivered on 28th January, 2021 is hereby set aside and High Court Petition No. 139 of 2019 delivered on 28th January, 2021 is hereby dismissed; and
Each party shall bear its costs.
It is our view that the continuous investigation in criminal matters is permitted under the law.
by presenting a constitutional petition in the High Court, the 1st and 2nd respondents did engage in forum shopping and thus an abuse of the court process
In order to prove a constitutional violation, the petitioner must state the precise constitutional right violated, show how the injury has been caused and support the claims with a sworn afidavit.
Issues in the judgment
#The judgment refers to a 'Petition dated 18th April, 2019' and elsewhere to 'the petition dated 4th April, 2019' as the document found meritorious by the trial court, an internal inconsistency in dates.
The judgment does not state the appeal number of the present appeal, identifying the matter only by reference to the trial court's Petition No. 139 of 2019.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Revenue Authority v Shijenje & 3 others (Civil Appeal E450 of 2021) [2026] KECA 1603 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1603/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.