Republic v Inspector – General of State Corporations & 2 others (Judicial Review Application E072 of 2024) [2025] KEELRC 826 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the application is res judicata on the ground that the State Corporations Appeals Tribunal already dispensed with the issues
- 3.Whether an order of prohibition can issue to stop that which was already done (the confirmed surcharge)
Key legal issues
#Whether the judicial review application was barred by want of exhaustion of the statutory appeal under section 21 of the State Corporations Act
Yes - the statutory appeal procedure applied and operated as an absolute bar; the preliminary objection on this ground was upheld.
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.
Whether the application was res judicata having been dispensed with by the State Corporations Appeals Tribunal
No - whether the Tribunal ever determined the applicant's appeal was disputed, so this ground failed.
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.
Whether an order of prohibition could issue where the surcharge was said to have been already confirmed
The question could not be determined on a preliminary objection; it required evaluation of facts and evidence at full hearing, so the ground collapsed.
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.
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.The preliminary objection is upheld upon the ground of want of invoking the prescribed statutory appeal procedure
- 2.The judicial review proceedings herein are struck out
- 3.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
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
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.
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.
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.
Issues in the judgment
#The surcharge amount appears inconsistently in the judgment text (Kshs.2,761.236.00, likely intended as Kshs.2,761,236.00)
The 2nd respondent's grounds appear to contain a typographical error ('application ofiends' for 'offends')
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.