Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutJudicial Review proceedings, Notice of Motion dated 20.12.2024

Republic v Inspector – General of State Corporations & 2 others (Judicial Review Application E072 of 2024) [2025] KEELRC 826 (KLR)

Employment and Labour Relations Court
14 March 2025
1,021 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court struck out a bid to quash a Kshs.2.76 million surcharge because the applicant skipped the mandatory appeal to the State Corporations Appeals Tribunal.

What this practically means

#

Executive summary

#
The ex-parte applicant moved the Court by notice of motion dated 20.12.2024 seeking certiorari to quash a surcharge certificate of Kshs.2,761,236.00 issued by the 1st respondent under letter dated 08.10.2024, and prohibition against any further surcharge decisions. The 1st and 3rd respondents filed a preliminary objection contending that the suit was res judicata before the State Corporations Appeals Tribunal and that prohibition could not issue because the surcharge had already been confirmed. The 2nd respondent raised the preliminary point that the applicant ought first to have appealed to the State Corporations Appeals Tribunal under section 21 of the State Corporations Act, Cap 446, and that the application offended section 9(2) of the Fair Administrative Action Act. The Court held that the applicant, by her own pleadings, knew the statutory appeal was the proper avenue to attack the surcharge decision; her assertion about the allegedly illegal tenure of the Acting Inspector-General was extraneous and bore a 'zero correlation' with her ability to invoke the statutory appeal. The availability of the statutory appeals procedure therefore operated as an absolute bar, and that ground of the preliminary objection passed the test of a pure point of law on undisputed pleaded facts. The res judicata ground and the prohibition ground both collapsed as they depended on disputed facts requiring a full hearing. The preliminary objection was upheld on the exhaustion ground, the judicial review proceedings were struck out, and each party was ordered to bear its own costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the judicial review application is barred for want of exhaustion of the statutory appeal procedure under section 21 of the State Corporations Act
  2. 2.Whether the application is res judicata on the ground that the State Corporations Appeals Tribunal already dispensed with the issues
  3. 3.Whether an order of prohibition can issue to stop that which was already done (the confirmed surcharge)

Key legal issues

#
01

Whether the judicial review application was barred by want of exhaustion of the statutory appeal under section 21 of the State Corporations Act

Holding

Yes - the statutory appeal procedure applied and operated as an absolute bar; the preliminary objection on this ground was upheld.

Reasoning

The applicant herself acknowledged that the statutory appeal to the State Corporations Appeals Tribunal was the proper avenue to challenge the surcharge certificate. Her argument that the Acting Inspector-General's alleged illegal tenure vitiated the surcharge was treated as extraneous and unrelated to her ability to invoke the statutory appeal. The point was one of law on undisputed facts, satisfying the test for a preliminary objection, so the proceedings were struck out.

p. 2
02

Whether the application was res judicata having been dispensed with by the State Corporations Appeals Tribunal

Holding

No - whether the Tribunal ever determined the applicant's appeal was disputed, so this ground failed.

Reasoning

The Court found that the applicant disputed that the Tribunal had determined her appeal against the surcharge decision. Because a preliminary objection must rest on undisputed facts and a pure point of law, the res judicata ground collapsed, and the submission for the applicant on that respect was upheld. Res judicata was held not to have been established at all.

p. 3
03

Whether an order of prohibition could issue where the surcharge was said to have been already confirmed

Holding

The question could not be determined on a preliminary objection; it required evaluation of facts and evidence at full hearing, so the ground collapsed.

Reasoning

The Court held that whether anything remained of the impugned surcharge decision capable of being arrested by prohibition depended on weighing evidence and circumstances that were not said to be undisputed. Therefore this ground of the preliminary objection did not pass the test of a pure point of law based on undisputed pleaded facts and collapsed.

p. 3

Legal principles established

#
  • Where a statutory appeal procedure is available, it operates as an absolute bar to judicial review proceedings in the absence of other material
  • A proper preliminary objection must be based on undisputed pleaded facts and raise a pure point of law

Court orders

#
  1. 1.The preliminary objection is upheld upon the ground of want of invoking the prescribed statutory appeal procedure
  2. 2.The judicial review proceedings herein are struck out
  3. 3.Each party to bear own costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction of the Employment and Labour Relations Court; State Corporations Act, Cap 446 (sections 19, 21, 23)

Relief refused

#

Order of certiorari to quash the surcharge certificate of Kshs.2,761,236.00 dated 08.10.2024

The proceedings were struck out for failure to exhaust the statutory appeal procedure under section 21 of the State Corporations Act

p. 2

Order of prohibition against the 1st respondent issuing further surcharge decisions

The preliminary objection on this ground did not pass the test of a pure point of law based on undisputed facts and fell away with the striking out of the proceedings

p. 3

Costs

Each party to bear own costs of the application

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 Court finds that the availability of the statutory appeals procedure, in absence of any other material, operates as an absolute bar to the instant judicial review proceedings.
p. 2Exhaustion of statutory appeal remedies as a bar to judicial review
The same is found to pass the test for a proper preliminary objection – one based on undisputed pleaded facts and raising a pure point of law.
p. 2Test for a proper preliminary objection
In conclusion the preliminary objection is upheld upon the ground of want of invoking the prescribed statutory appeal procedure and with orders: a. The judicial review proceedings herein are struck out. b. Each party to bear own costs.
p. 3Final orders/disposition

Issues in the judgment

#
minor

The surcharge amount appears inconsistently in the judgment text (Kshs.2,761.236.00, likely intended as Kshs.2,761,236.00)

minor

The 2nd respondent's grounds appear to contain a typographical error ('application ofiends' for 'offends')

minor

Typographical error ('efiect' for 'effect') in the quoted section 21(2) of the State Corporations Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Inspector – General of State Corporations & 2 others (Judicial Review Application E072 of 2024) [2025] KEELRC 826 (KLR)", Case Analysis (2025). Judicial Review proceedings, Notice of Motion dated 20.12.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/826/eng@2025-03-14

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