https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1603

Kenya Revenue Authority v Shijenje & 3 others (Civil Appeal E450 of 2021) [2026] KECA 1603 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1603 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E450 of 2021 DK Musinga, P Lilan & JO Okello, JJA July 31, 2026 Between Kenya Revenue Authority Appellant and Denis Joseph Shijenje 1st Respondent The Inspector General Of Police 2nd Respondent Bachman Enterprises Limited 3rd Respondent Director Of Public Prosecutions 4th Respondent (Being an appeal against the whole Judgment of the High Court of Kenya at Nairobi (J. A. Makau, J.) delivered on 28th January, 2021 in HC Petition No.139 of 2019) Judgment 1.This appeal by the Kenya Revenue Authority (“the appellant”) arises from two letters of different dates written by the appellant’s officer to the directors and officer of the 2nd respondent herein. The appellant is dissatisfied with the whole judgment dated 28th January, 2021 and has set out five grounds of appeal in the memorandum of appeal dated 10th August, 2021. The grounds of appeal are listed thus: that the learned Judge erred in both law and fact by —(a)failing to find that the Appellant’s letters of 8th March 2019 and 28th March 2019 were only limited to the civil aspect of the case and not to look for fresh evidence to be used in Milimani Chief Magistrates’ Court Criminal Case Number 2091 of 2018, Republic vs Denis Joseph Shijenje & Another.(b)in failing to appreciate that the Appellant’s letter dated 28th March, 2019 related to a civil tax dispute which is entirely and substantially different from the criminal case in Milimani Chief Magistrates’ Court Criminal Case Number 2091 of 2018 Republic vs Denis Joseph Shijenje & Another, thereby arriving at a wrong conclusion the Appellant violated the 1st and 2nd Respondents’ right to fair trial under Article 50 of the Constitution of Kenya, 2010.(c)in failing to address the issue of forum shopping and abuse of the court process by the 1st and 2nd Respondent, hence arriving at a wrong conclusion.(d)in finding that the Appellant carried out further investigations as against the 1st and 2nd Respondents in respect of facts and issues related to Milimani Chief Magistrates’ Court Criminal Case Number 2091 of 2018 Republic vs Denis Joseph Shijenje & Another, thereby arriving at a wrong conclusion that the Appellant violated the 1st and 2nd Respondents’ Constitutional rights under Article 27, 28, 29(a), 39, 31, 47, 49 (1) (a) (i), (c) & (h) and 50 of the Constitution.(e)when he failed to determine the contested legal and factual issues on the basis of the substantive pleadings and the documentary evidence adduced. 2.The appellant’s prayers are that the appeal be allowed, the judgment dated 28th January, 2021 be set aside and be substituted with an order dismissing the same and costs be awarded to the appellant. 3.The relevant antecedent facts giving rise to this appeal are not contested. On or about 5th November, 2018, the 1st and 2nd respondents were arraigned in Court and charged in Criminal Case No. 2091 of 2018, Republic vs Denis Joseph Shijenje and Bachmann Enterprises Limited with the offence of deliberately defaulting to pay tax contrary to sections 97(e) and 104(3) of the Tax Procedures Act. 4.The 1st and 2nd respondents by way of a petition dated 18th April, 2019 moved the trial court for five prayers against the appellant that:(a)a declaration be and is hereby made that the investigations being undertaken and/or ongoing by the appellant and the 3rd respondent as against the 1st and 2nd respondents in respect of facts and issues related to Criminal Case Number 2091/2018- Republic vs Denis Joseph Shijenje & Another, violates the 1st and 2nd Respondent’s Constitutional rights as set out under Article 27, 28, 29 (a), 39, 31, 47, 49 (1) (a) (i), (c) & (h) and 50 of the Constitution, are an abuse of administrative power, are an abuse of the Court process and therefore unlawful, null and void ab initio.(b)an Order of Prohibition be and is hereby issued prohibiting the appellant and the 3rd respondent from investigating, conduction investigations, summoning the 1st and 2nd respondents and in any manner whatsoever conducting into facts and issues similar and pertaining to Criminal Case Number 2091/2018 during the trial and prosecution of the said case (sic).(c)an Order of Prohibition be and is hereby made prohibiting the appellant and the 3rd respondent from harassing, intimidating, assaulting and in any matter whatsoever threatening the 1st and 2nd Respondent (sic).(d)an Order of Prohibition be and is hereby made prohibiting the Appellant, 3rd and 4th respondents from commencing any further criminal investigations against the 1st and 2nd respondents, from recommending the prosecution of the 1st and 2nd respondents, from arresting the 1st and 2nd respondents, from questioning the 1st and 2nd respondents, in respect of issues relating and similar to Criminal Case Number 2091/2018 Republic vs Denis Joseph Shijenje & Another.(e)the appellant, 3rd and 4th respondents be and are hereby directed to pay the 1st and 2nd respondents the costs of their Petition. 5.From the record, on 24th October, 2018 the 1st and 2nd respondents received a letter from the appellant under section 59(1) of the Tax Procedure Act, 2015, inviting them for a meeting to discuss their tax matters. The 1st and 2nd respondents stated that they were asked a few questions surrounding their taxes and the meeting ended. On 8th November, 2018, the 1st and 2nd respondents received communication from their banks, Commercial Bank of Africa and Barclays Bank, noting that a notice had been lodged under section 43(2) of the Tax Procedure Act, 2015 by the appellant preserving the funds in the accounts for a period of ten days pending investigations. The 1st and 2nd respondents stated that upon the lapse of the ten days, the said accounts were released for their access and have never been frozen again. 6.The 1st and 2nd respondents stated that on 2nd November, 2018, they were summoned to the offices of the appellant to provide a further statement and upon arrival, the 1st respondent was detained and subsequently arrested for tax offences. 7.The 1st and 2nd respondents further stated that on 5th November, 2018, they were arraigned in court, charged and released on cash bail under Criminal Case No. 2091 of 2018, Republic vs Denis Joseph & Another. The 1st and 2nd respondents stated that since taking plea on the charge, the case has never commenced. 8.The 1st and 2nd respondents went on to state that by a letter dated 8th March, 2019, the appellant once again issued a notice summoning a director of the 2nd respondent, the letter being written to the attention of one Christine Kwamboka Ongaga, who is a shareholder of the 2nd respondent. The 1st and 2nd respondents stated that on 13th March, 2019, Ms. Kwamboka was questioned by one Mr. Keng’ara. 9.The 1st and 2nd respondents further stated that on 28th March, 2019, the appellant wrote a letter to the 2nd respondent demanding for documents that are the subject matter of the dispute in court for the period between January, 2015 to December, 2018. The 1st and 2nd respondents contended that from the events commencing on 8th November, 2018, the appellant’s actions are aimed at intimidating them. 10.The appellant on the other hand states that it conducted a comprehensive tax audit and confirmed that the 1st and 2nd respondents had under declared their taxes, resulting to a loss of income tax amounting to Ksh. 355,000,000/= and thus the 1st and 2nd respondents evaded payment of taxes through under declaration of income tax between the years 2017 and 2018. The appellant stated that it executed its mandate as provided under the relevant tax laws and never exceeded its powers in carrying out the investigations. The appellant further stated that the issues raised in the petition were substantially in issue in the 1st and 2nd respondents’ Notice of Motion dated 18th April, 2019 in Criminal Case No 2091 of 2018 and the same was settled. 11.The 3rd and 4th respondents filed grounds of opposition dated 28th June 2019 at the trial. They stated that the 1st and 2nd respondents failed to prove violation of their fundamental rights and freedoms. 12.The trial court identified three issues for determination, which are: whether the appellant, the 3rd and 4th respondents can be stopped from investigations against the 1st and 2nd respondent, whether the appellant the 3rd and 4th respondents have infringed on the 1st and 2nd respondents’ constitutional rights, and whether the 1st and 2nd respondents’ rights can be limited to accommodate evidence collection by the appellant, the 3rd and 4th respondents. By a judgment of the trial court, the petition dated 4th April, 2019 was found to be meritorious and the following orders were issued —(a)a declaration that the investigations being undertaken and/or ongoing by the Appellant and 3rd Respondent as against the 1st and 2nd Respondents in respect of facts and issues related to Criminal Case Number 2091/2018- Republic vs. Denis Joseph Shijenje & Another violates the 1st and 2nd Respondents Constitutional rights as set out under Article 27, 28, 29 (a), 39, 31, 47, 49 (1) (a) (i), (c) & (h) and 50 of the Constitution, are an abuse of administrative powers, are an abuse of the Court process and therefore unlawful, null and void ab initio (sic).(b)an order of prohibition prohibiting the Appellant and 3rd Respondent from investigating, conducting investigations, summoning the 1st and 2nd Respondents and in any manner whatsoever conducting into facts and issue similar and pertaining to Criminal Case Number 2091/2018 during the trial and prosecution of the said case.(c)an Order of Prohibition prohibiting the Appellant and the 3rd Respondent from harassing, intimidating, assaulting and in any manner whatsoever threatening the 1st and 2nd Respondents.(d)an Order of Prohibition prohibiting the Appellant, the 3rd and 4th Respondents from commencing any further criminal investigations against the 1st and 2nd Respondents, from recommending the prosecution of the 1st and 2nd Respondents, from arresting the 1st and 2nd Respondents, from questioning the 1st and 2nd Respondents, in respect of issues relating and similar to Criminal Case Number 2091/2018 Republic vs Denis Joseph Shijenje & Another.(e)costs of the Petition to be borne by the Appellant. 13.Aggrieved by the decision, the appellant lodged the instant appeal before this Court. The Notice of Appeal is dated 10th February, 2021 and was lodged on 16th February, 2021. The Memorandum of Appeal is dated 10th August, 2021 and it raises five grounds stated above disputing the findings of the trial court. 14.The appeal was heard virtually on 11th March, 2026. Learned counsel, Mr. Ngetich Kipng’eno, held brief for Ms. Sheila Sanga for the appellant. The appellant filed submissions dated 13th April, 2022 and also made oral highlights of the submissions.There was no appearance for the respondents, neither did they file any written submissions. The Court was satisfied that service was effected upon all the parties. 15.In its submissions dated 13th April, 2022, the appellant has summarized the five grounds of appeal into three main issues as follows: whether the learned judge erred by finding that the appellant’s letters dated 8th March, 2019 and 28th March, 2019 amounted to further investigations and collection of evidence; whether the learned Judge erred in failing to address the issue of forum shopping and abuse of the court process; and 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. 16.On the first issue whether the appellant’s letter dated 28th March, 2019 amounted to further investigations and collection of evidence, counsel submitted that the said letter originated from the domestic taxes department which routinely conducts audit and compliance checks on all taxpayers. Counsel submitted that at the time of the issuance of the letter, the appellant’s officer was not aware of the criminal proceedings and the request for documents was neither deliberate nor meant to collect evidence but rather it was an inadvertent act on the part of the appellant’s officer. Counsel asked the court to analyze and reassess the evidence on record, urging that the trial court did not consider the appellant’s reason for issuing the letter dated 28th March, 2019. The appellant concludes its submission on this point by averring that this was a material fact which the High Court ought to have considered but the learned judge omitted it in his judgment. Consequently, failure to consider the appellant’s reasons makes the appellant’s appeal worthy of this Court’s re-evaluation. The appellant relied on the following authorities: Festo Oyengo Obonyo vs Miriam Namutibwa Oketch & 2 Others [2019] eKLR where this Court held that the Court’s primary role is to re-evaluate and re-assess the record and then determine whether the conclusions reached by the trial judge are to stand or not and give reasons either way, and Edward Kagwathi Katuku vs Republic [2022] eKLR. 17.Regarding the letter dated 8th March, 2019, counsel submitted that the trial court erred by failing to consider that the letter was addressed to Ms. Christine Kwamboka Ongaga and not the 1st and 2nd respondents. Counsel faulted the trial court for finding that the letter dated 8th March, 2019 which summoned Ms. Christine Kwamboka Ongaga for interrogation amounted to investigating the 1st and 2nd respondents. The appellant closes its submissions on these points by urging this Court to find that the trial court erred in holding that the appellant’s letters of 8th and 29th March, 2019, amounted to further investigations on the 1st and 2nd respondents and collection of further evidence for use in criminal case. 18.On whether the trial court erred in failing to address the issue of forum shopping and abuse of the court process, counsel submitted that the same was raised in the appellant’s replying affidavit, supplementary affidavit and supplementary submissions in response to the 1st and 2nd respondents’ case before the trial court. 19.The appellant’s counsel further submitted that the 1st and 2nd respondents in their Petition alleged that upon perusing the documentary evidence supplied by the appellant, they realized that the appellant has no sufficient evidence against them to sustain a conviction. It is on this basis that the 1st and 2nd respondents argued that the insufficiency of evidence in the criminal case further prompted investigations through the letters of 8th March, 2019 and 28th March, 2019 with a view of collecting more evidence. 20.It was the appellant’s counsel’s submission that the issue of whether or not there is sufficient evidence to secure conviction of the 1st and 2nd respondent in Milimani Chief Magistrates’ Court Criminal Case No. 2091 of 2018 is a preserve of that court. Counsel submitted that on 9th April, 2019, the trial court had admitted that the Magistrates’ Court was better placed to determine the issues relating to further investigations and criminal proceedings. The appellant’s counsel further submitted that the trial court did not address the issue of forum shopping and abuse of the court process. To buttress its case, the appellant relies on the cases of Uwe Meixner & another vs Attorney General [2005] eKLR and Cosmas Maweliwe Wepukhulu vs Sameer Africa Limited [2018] eKLR. 21.The appellant closed its submissions on this issue by urging that the issue of forum shopping and abuse of court processes was so material to the case to the extent that it had the effect of determining some of the contested issues. It submitted that the issue of sufficiency of evidence and the criminal investigations was a preserve of the Magistrates’ Court, which implies that the trial court did not have jurisdiction to entertain the same by way of a constitutional petition. Consequently, it submits that the trial court having failed to consider the above issues in its judgment, makes the said issues ripe for this Court’s determination. 22.On whether the appellant violated the 1st and 2nd respondent’s constitutional rights by carrying out further investigations, the appellant’s counsel submitted that the appellant’s letter dated 8th March, 2019 was addressed to Ms. Christine Kwamboka Ongaga, an officer of the 2nd respondent. Counsel for the appellant faulted the superior court’s judgment at paragraphs 20, 31 and 51 for making contradictory findings and holding that the appellant’s letter dated 8th March, 2019 amounted to further investigations. 23.The appellant’s counsel submitted that whereas the trial court found that the appellant had violated the 1st and 2nd respondents’ rights under Article 27, 28, 29 (a), 31, 39, 47, 49 (1) (a), (c), h & (i) and 50 of the Constitution, 2010, there is nothing in the 1st and 2nd respondents’ pleadings that proves the alleged violation. The appellant relies on the case of Mumo Matemu vs Trusted Society for Human Rights Alliance & 5 Others [2013] eKLR. The appellant’s counsel submitted that there is a disconnect between the trial court’s findings and the orders granted. 24.The appellant prays that this appeal be allowed, that the judgment delivered on 28th January 2021 be set aside, and be substituted with an order dismissing the same, and the costs of this appeal be awarded to the appellant. 25.The appeal is not opposed because the respondents did not file any submissions. 26.This is a first appeal and therefore, this Court’s mandate as a first appellate court is settled as being re-hearing or retrial of the case based on the material on record. Rule 31(1)(a) of this Court’s Rules require this Court to re-appraise the evidence and to draw inferences of fact. 27.This court is guided by the Court of Appeal for East Africa decision in Peters vs Sunday Post Limited [1958] EA page 424, where the court stated that:“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.” 28.Bearing in mind the provisions of rule 31(1)(a) of this Court’s Rules and the plethora of authorities in this area, we will only overturn a trial court’s finding if it is shown to be clearly wrong, or if the judge failed to take into account material circumstances or probabilities. 29.We have carefully considered the submissions, the grounds of appeal, the law and perused the materials placed on record. We discern three issues for determination:(a)Whether the trial court erred by holding that the appellant violated the 1st and 2nd respondents’ Constitutional rights under Article 27, 28, 29(a), 39, 31, 47, 49 (1) (a) (i), (c) & (h) and 50 of the Constitution;(b)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; and(c)Whether the learned judge erred in failing to address the issue of forum shopping and abuse of the court process. 30.The first two issues are intertwined and shall be considered together. On the questions whether the rights of the 1st and 2nd respondents’ constitutional rights were violated, and whether the appellant carried further investigations and thereby violating article 50 of the Constitution on the right to fair trial, it is the appellants’ case that the trial court did not consider the reasons for the issuance of the letters dated 8th March, 2019 and 28th March, 2019, and further that the appellant’s issuing officer was not aware of the ongoing criminal proceedings. The appellant further submitted that the request for documents/records was neither deliberate nor meant to collect evidence but rather it was inadvertent act on the part of the appellant’s officer. 31.On the issue of further investigations, the appellant averred that the learned judge erred by basing his decision on matters and articles of the Constitution that were not specifically pleaded by the 1st and 2nd respondents. He further contends that the 1st and 2nd respondents did not plead articles 27, 47 and 50 of the Constitution. They further urge that the 1st and 2nd respondents did not plead anything on Articles 28, 29(a), 39, 31 and 49(1)(i), (c) & (h) of the Constitution. 32.On the issue of whether the letters amounted to further investigations, we do agree with the learned Judge that this amounted to further investigations. Indeed, the wording of the letters referred too are very clear. The letters as issued were not mere letters but were summons to the respondents. In particular, the last paragraph in the letter dated 8th March, 2019 reads: “failure to comply with the notice therein shall be an offence under the relevant tax laws and this office may proceed to take necessary legal action against you without further reference to yourself.” This is a summons for purposes of investigations. This was being done after the 1st and 2nd respondents had already been charged in court. Therefore, the appellant’s submission that its officer who issued the letters were not aware of the criminal proceedings is not critical in the instant case. It will suffice that the appellant, the 3rd and 4th respondent were either performing their constitutional or statutory duties, and this Court is very slow to interfere with bodies exercising their constitutional or statutory mandate. 33.Be that as it may, the trial court addressed itself on this issue.At Page 33 of the judgment, the trial court stated:“I find the 1st respondent issuance of letters dated 8th March 2019 and 28th March, 2019 to the 1st Petitioner after the petitioners were arraigned in court and charged with various counts and indicating that the investigations are ongoing in respect of the same subject matter in court, touching on the same parties or rather issuing further demand in the name of investigations and demanding for books, records, documents, payroll, income statements respectively;(i)The same period under trial(ii)The same tax head under trial(iii)The same parties and(iv)The same tax issues.” 34.We agree with the learned Judge’s findings on this issue to the extent that the content and tone of both letters point to further investigations. We however, respectfully disagree with the learned Judge on violation of Article 50 i.e., the rights of the 1st and 2nd respondents to a fair trial. The main question in the room is whether the further investigations infringed the 1st and 2nd respondents’ rights to a fair trial. It is our view that the continuous investigation in criminal matters is permitted under the law. The prosecution or any state agency like the appellant herein, are permitted to gather further intelligence, documents, or even witness statements post plea-taking as the case prepares for the trial. The right to fair trial comes in by virtue of Article 50(2) where the investigating agency or the prosecution is under a strict duty to disclose all material evidence, including any new material or information they uncover to the accused person so that the accused person can adequately prepare their defence. So, there was nothing wrong with the appellant summoning the respondent to provide further information. The appellant was undertaking its statutory duty and was still bound to supply any new evidence or document discovered to the 1st and 2nd respondents pursuant to Article 50(2)(j), (k) and (l). We therefore find that further investigations undertaken by the appellant did not infringe the rights of the 1st and 2nd respondents. 35.On 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, it is the appellant’s assertion that the trial court erred by holding that the alleged investigations were not in accordance with the law, and yet the 1st and 2nd respondents were relying on hearsay evidence and unsubstantiated claims to prove harassment by the appellant. The appellant further averred that the 1st and 2nd respondents did not plead precisely the manner of the alleged violations and the extent of violation of Articles 27, 47 and 50 of the Constitution. 36.We shall not belabour this point. 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 affidavit. A quick perusal of Petition No. 139 of 2019 filed by the 1st and 2nd respondents and the affidavit sworn by the 1st respondent, demonstrate unsubstantiated averments including claims of harassment, like the appellant making calls to the respondents at night among others. There is nowhere in the records that these allegations are proved. In Mumo Matemu vs Trusted Society for Human Rights Alliance & 5 Others [2013] eKLR, this Court held as follows:“We speak particularly knowing that the whole function of pleadings, hearings, submissions and judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point...Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle.”We therefore find that the 1st and 2nd respondents did not plead the violation of Articles 27, 28, 29(a), 39, 31, 47 and 49(1)(i), (c), & (h) and 50 with exactitude neither did they substantiate how the appellant infringed their rights. 37.On the final issue on forum shopping and abuse of the court process, it is the appellant’s case that whereas it raised the issues that the respondents were forum shopping and abusing the court process, the trial court did not address it at all. It urged that the issue of forum shopping and abuse of court process was so material to the case to the extent that it had the effect of determining some of the contested issues. The appellant in its memorandum of appeal states that the learned judge erred in law and fact in failing to address the issue of forum shopping and abuse of the court process by the 1st and 2nd respondents hence arriving at a wrong conclusion. 38.We note that the trial Judge did not address his mind at all on the issue of forum shopping and abuse of court process despite the same being pleaded and detailed submissions made by the appellant. Accordingly, to the extent that the trial court did not address the issue in its judgment, we agree with the appellant. We shall therefore proceed to re-appraise the evidence at the trial court and arrive at our independent decision. 39.From the records, it is not disputed that the 1st and 2nd respondents had filed Criminal Application in Criminal Case No. 2091 of 2018 where they were seeking similar prayers as those sought in Petition No. 139 of 2019 before the High Court, which is the subject of this appeal. In the Petition before the High Court, the respondents sought several reliefs against the appellant, including declarations of violations of their constitutional rights, orders of prohibition, and costs of the Petition. If a party files a suit in a manner signaling forum shopping, the prudential doctrine requires that the court seized of the matter should decline to take jurisdiction and should instead request that the matter be heard and determined by the appropriate forum. In the instant case, it would have been prudent for the trial court to consider all the issues raised by the parties and answer all questions and issues raised. If while considering the matter, the trial court determined that the application in the lower court was similar in terms of the parties, grounds and reliefs sought, the trial court ought to have referred the matter back to the lower court seized of the matter or make a determination on the issue. In Cosmas Maweliwe Wepukhulu vs Sameer Africa Limited (supra), this Court sitting in Kisumu stated:“In our humble view the parties framed 19 issues for determination before the trial judge. As a matter of good order and procedure the parties were entitled to an answer to each of the 19 issues set for determination, notwithstanding the contents and style employed by the judge. That was not done, which in essence means that the trial judge fell into an error, which clearly vitiates the judgment subject of this appeal. Consequently, the failure and/or omission to consider 18 issues goes to the root of the judgment, which we cannot allow to stand. …We respectfully disagree with the learned judge and hold that the learned judge should have considered the other issues raised by the parties, in arriving at its final decision.” 40.We think that if the learned Judge had considered the issue of forum shopping and abuse of court process as pleaded by the appellant, he would have come to the direct conclusion that what was being complained of and what was being sought by the applicant before him was a duplicate of, could have, and had been raised in the application that was still pending in the lower court. 41.Did the 1st and 2nd respondents’ action therefore amount to forum shopping? Forum shopping takes several hues and shades and there is a plethora of decisions by this Court on the issue of forum shopping. In Parg Bhabwanjigi Savani vs Jitu & 2 others [2017] eKLR this Court stated thus —“..It is an impermissible abuse of process falling in several of the illustrations given of abuse of judicial process in the Nigerian case of Sarak Vs Kotoye [1992] 9 NWLR 9pt 264 156 at 188-189 that we cited;“(a)Instituting multiplicity of actions on the same subject matter against the same opponent on the same issues or a 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 a respondent’s notice.(d)Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.(e)Where there is no iota of law supporting a court process or where it is premised on frivolity or recklessness.’” 42.Forum shopping as per Merriam Webster dictionary is:“The practice of choosing the court in which to bring an action from among those courts that could properly exercise jurisdiction based on determination of which court is likely to provide the most favourable outcome.” 43.In the Indian case of Union of India & Others vs Cipla Ltd & Another, [2017] (1) ALJ, 363, the court laid down factors which lead to the practice of forum shopping or choice of forum by the litigants which, are as follows:“A classic example of forum shopping is when a litigant approaches one court for relief but does not get the desired relief and then approaches another Court for the same relief.” 44.Whereas the 1st and 2nd respondents filed a criminal application in the lower court on the same matter, the same was merged with the main suit and is yet to proceed for hearing. It is our considered view that 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. The Constitutional Petition No. 139 of 2019 is similar almost word for word with the Notice of Motion dated 18th April, 2019, and seeking similar orders. The 1st and 2nd respondents who are the applicants in the application in the Magistrates Court are the same. In both matters, the parties are the same, the grounds are same and the orders sought are also the same. Generally, a constitutional petition is only tenable if it introduces distinct, substantial questions that the lower court lacks the competence. In the instant case, the issues raised revolved around further investigations and were not substantial constitutional questions that the lower court could not handle within the trial itself.However, we are alive to the doctrine of constitutional avoidance where parties mask ordinary civil, criminal or administrative disputes as constitutional petitions just to by-pass a lower court or forum shopping. In the instant case, the Magistrate’s court seized of this matter had jurisdiction to determine the issues raised. The 1st and 2nd respondents ought to have urged their application before the lower court before approaching the High Court with a constitutional petition. 45.We therefore find that by filing a multiplicity of suits in the lower court and further couching same matters in the form of constitutional petitions and filing it in the High Court, the respondents were forum shopping and therefore abused the court process. This Court has consistently decried the tendency of parties engaging in forum-shopping by filing a duality or multiplicity of suits over the same subject matter in the hope of landing a successful punch somewhere by a process of spreading their suits and hedging their bets. We detest this action of forum shopping because it undermines the fairness and integrity of the justice system. Every time litigants hunt for a sympathetic judge or a lenient jurisdiction rather than filing a matter where the case naturally belongs, it wastes judicial resources, creates unfair advantage and clogs the courts. It treats the court system like a marketplace rather than a place for neutral and honest dispute resolution. The instant case has done exactly that. 46.Having considered the record as put before us, the impugned judgment, the submissions of the learned counsel, the cited authorities and the law, this appeal is allowed. Consequently,(a)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(b)Each party shall bear its costs. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.D. K. MUSINGA......................................JUDGE OF APPEALPAUL LILAN......................................JUDGE OF APPEALDR. J. O. OKELLO......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.