1. The application that informs this judgment is the Notice of Motion Application dated 8thJuly 2025 where in the Applicant seeks the following orders THAT:
1) An order of Certiorari to remove into this Honourable Court and quash the entire decision of the 2nd Respondent herein in Debarment Application Number 6 of 2025, dated and delivered on 20th June 2025.
2) An order of Prohibition to prohibit and/or restrain the Respondents and/or their agents and any other persons from implementing the decision delivered in Debarment Application Number 6 of 2025, dated and delivered on 20th June 2025.
3) Such other, further order and/or incidental orders or directions as this Honorable Court shall deem just and expedient;
4) Costs of this Application be borne by the Respondents.
The Applicant's Case;
2. Through a decision dated and delivered on 20th June 2025 the 2nd Respondent made a decision to debar the Exparte Applicant. The Applicant aggrieved that the 2nd Respondent did not fully consider the Applicant’s argument and submissions filed during the Debarment proceedings.
3. The Applicant strongly believes that the 1st Respondent’s Request for Debarment dated 10th April 2025 was based on facts and evidence similar to those raised in Debarment Application Number and 5 of 2021.
4. It concludes that in the circumstances, the 2nd Respondent’s decision that there was a prima facie case was made unlawfully, irrationally and unfairly and the same was contrary to Articles 10, 47 and Article 50 of the Constitution wherein the Exparte Applicant was denied the right to a fair hearing. It is the applicants case that this is contrary to The Public Procurement and Asset Disposal Debarment Proceedings Manual 2022
5. The Applicant is concerned that The 2nd Respondent’s decision sought to hear and determine issues and evidence that had already been relied on in Debarment Applications No.4 and 5 of 2021, in which a decision was issued on 25th March 2022 debarring the Exparte Applicant and the Exparte Applicant has already suffered the ramifications of its actions. According to it, Debarment Application No.6 of 2025 is therefore barred by Res Judicata.
6. It identifies the following res judicata in Debarment Application No.6 of 2025:
a. Under paragraphs 236 of the decision dated 2nd June 2021 (delivered on 25th March 2022) — refer pages 1435 and 1436 of the Annexures, the Debarment Committee was invited to make a determination on the existence of JLS Investments Group Limited and it did so in the said paragraph. The same invitation was also extended to the Debarment Committee as in decision dated on 20th June 2025 wherein it made the same finding at paragraph 88(refer page 22 of the Annexures), wherein the company was deemed to be non-existent.
b. Additional y, at paragraphs 236 and 237 of the decision dated 2nd June 2021 (delivered on 25th March 2022)— refer pages 1435 and 1436 of the Annexures, the Debarment Committee was invited to lease agreement executed in 2019, wherein the Committee made its decision in the aforesaid paragraphs. The same invitation was also extended to the Debarment Committee as in its Decision dated 20th June 2025 wherein it made at paragraph 90 (refer page 22 of the Annexures), wherein the lease was deemed to be falsified.
c. Under paragraphs 238, 239 and 240 of the decision dated 2nd June 2021 (delivered on 25th March 2022) — refer pages 1436 and 1437 of the Annexures, the Debarment Committee made a determination as to the notarisation of the Lease Agreement between Itech Auto Finance and Auto Terminal UK Limited by Drake and Scott. The same was also determined at paragraphs 83, 84, 85 and 86 of the decision dated 20th June 2025 (refer pages 20 and 21 of the Annexures), wherein the documents were deemed to have been falsified.
d. Under paragraph 235 of the decision dated 2nd June 2021(delivered on 25th March 2022)— refer pages 1435 of the Annexures, the Debarment Committee was invited to make a determination considering the affairs of Pal Auto Garage, which it did. The same invitation was extended to the Debarment Committee, and a decision was made under paragraph 92 of the decision dated 20th June 2025(refer page 23 of the Annexures) wherein was dismissed due to insufficient evidence.
7. The Applicant further argues that it served the debarment period to its conclusion and should not be subjected to the debarment as ordered in decision dated 20th June 2025.
8. It buttresses its case through the argument that the Court previously in Nairobi High Court in HCJR/E054/2025 highlighted the fact that the 2ndRespondent had acted ultra vires, irrationally and unfairly when making its decision outside timelines and regrettably, this time, the 2nd Respondent has proceeded to make a determination contrary to Articles 10, 47 and 50 of the Constitution wherein the Exparte Applicant was denied the right to a fair hearing.
9. In Nairobi High Court in HCJR/E054/2025 Auto Terminal Japan Limited vs State Law the court found the Judicial Review Application meritorious on grounds of lack of jurisdiction on the part of the Public Procurement Regulatory Board and quashed the Public Procurement Regulatory Board’s debarment decision.
10. In the instant suit, the Applicant advances the a rationale and argues that comparatively, in criminal proceedings that principle of ‘double jeopardy’ is the basis that underlies the pleas of autrefois convict and acquit, which assert that once a person has been convicted or acquitted, they cannot be charged against on the same offence.
11. The Debarment proceedings in Debarment Application No.6 of 2025 therefore serve no purpose according to the Exparte Applicant since it did not benefit in any conceivable manner from the International Tenders No. KEBS 019/2017-2020 and KEBS/RT/011/2021-2024, and the initial debarment was more than sufficient sanctions to the Exparte Applicant.
12. The Exparte Applicant had already been subjected to disciplinary proceedings on merit and received penalties for their actions, vide a decision to debar it on 25th March 2022.
13. The Applicant relies on Article 50 (1) and (2) of the Constitution of Kenya which states that:
“50. Fair hearing.
(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
(2) Every accused person has the right to a fair trial, which includes the right—
(o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted.”
14. It argues that the Debarment proceedings filed at the 2nd Respondent are contrary to Section 7 of the Civil Procedure Act states as follows;
“7. Res judicata
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it.
Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”
15. In criminal law the doctrine of res judicata is captured under the doctrine of “double jeopardy” and to compare the two doctrines, we associate ourselves with the decision in the Supreme Court of Kenya Case Petition No. E015 of 2024 Nyagol v Judicial Service Commission & another [2024] KESC 69 (KLR), the Honourable Court stated that this doctrine of double jeopardy is based on the Latin maxim nemo debet bis vexari pro una et eadem causa which means that no man shall be put in jeopardy twice for the same offence. It is also founded on public policy that there ought to be an end to the same litigation described it not only as a procedural defence but a constitutional protection against subsequent trial based on a prior acquittal or conviction.
16. Stones Justices’ Manual, Part I Magistrates’ Court Procedure in Criminal Proceedings where in discussing Double Jeopardy states as follows:
“Double jeopardy is, in effect, a discretionary extension of the rules of law defining the defences of autrefois convict and acquit. A second trial involving the same or similar facts may in the discretion of the court be stayed if to proceed would be oppressive or prejudicial and therefore an abuse of the process of the court.”
17. In Supreme Court decision in Petition No.17 of 2015 John Florence Maritime Services Limited and another v Cabinet Secretary Transport and Infrastructure & 3 others [2021] the following elements must be demonstrated:
a) There is a former judgment or order which was final;
b) The judgment or order was on merit;
c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action.
18. It is the Exparte Applicant’s case, that there was a former decision by the 2nd Respondent in Debarment Application Number 4 and 5 of 2021 which was delivered to parties on 25th March 2022, and consequently, both issue and cause of action estoppel arise preventing the same matter from been brought against the Exparte Applicant again.
19. It submits that Regulation 19 of the Debarment Manual addresses the issue of finality and states that: “The decisions of the Committee shall be final and binding on the parties to the proceedings and shall take effect immediately.”
20. It argues that once the decision was issued on 25th March 2022, the issues were determined to finality, and the same issues could not be raised subsequently.
21. It is the Exparte Applicant’s case that all the issues and documents referred to by the Exparte Applicant on Debarment Application Number 6 of 2025 were analysed by the 2nd Respondent and a finding on the same was made in Debarment Application Number 4 and 5 of 2021 on 25th March 2022.
22. It is the Exparte Applicant’s submission that the Respondents were estopped by the doctrine of res judicata from prosecuting Debarment Application Number 6 of 2025.
23. It argues that the 2nd Respondent violated Article 10(1)(a) (b)(c), Article 47(1) and Article 50 of the Constitution by failing to give the Exparte Applicant a fair hearing and by making a determination that a prima facie case existed against the Exparte Applicant despite the same facts and issues being finally determined vide a decision that was delivered on 25th March 2022 in Debarment Application Number 4 and 5 of 2021.
24. It argues that specifically, the 2nd Respondent violated Article 47(1) and Article 50 of the Constitution by failing to give the Applicant a fair hearing as well as Section 4 of Fair Administrative Action Act in the following manner:
a. Failure to make a determination that there was no prima facie case against the Exparte Applicant in Debarment Application Number 6 of 2025.
b. Failure to make a determination at the prima facie stage that the facts, evidence and parties were the same as those in Debarment Application Number 4 and 5 of 2021.
c. Failure to dismiss Debarment Application Number 6 of 2025 at the prima facie stage.
25. It argues that the said prima facie case was established against the Exparte Applicant on account of material non-disclosure on the part of the 1st Respondent who did not disclose to the 2nd Respondent that all the issues in questions that are being raised in its Debarment Application were already heard and determined conclusively in Debarment Application Number 4 and 5 of 2021.
26. It argues that the 1st Respondent is aware that International Tender No. KEBS/RT/011/2021-2024 for Provision of Pre-Export Verification of Conformity (PVOC) to Standard Services-Used Motor Vehicles, Mobile Equipment and Used Spare Parts lapses this year and that bidders will be subjected to a procurement process. In the circumstances, the 1st Respondent is desirous of ensuring that the Respondent does not take part in the said tender.
27. It argues that the 1st Respondent who used similar tactics when lodging Debarment Application Number 5 of 2021 just as the previous tender i.e. Tender No. KEBS/T010/2019-2021 for Enlargement of Provision of Pre-Export Verification of Conformity (PVOC) to Standard Services- Used Motor Vehicles, Mobile Equipment and Used Spare Parts was about to be renewed.
28. It is convinced that there is an on-going and very well-calculated witch-hunt aimed at ensuring that the Applicant does not partake in any tender processes involving the Pre-Export Verification of Conformity (PVOC) to Standard Services- Used Motor Vehicles, Mobile Equipment and Used Spare Parts.
29. According to the Applicant, it is apparent that the 1st Respondent is engaged in a form of legal warfare, in some legal doctrines, termed as “lawfare” wherein the 1st Respondent is attempting to use the legal process to settle business scores, to frustrate the operations of the Exparte Applicant and to ensure that Kenya remains to have one company being a monopoly in the motor vehicle inspection sector.
30. To the Applicant, this is not only a national security risk but a national safety and health risk whereby only one company is tasked with inspection standards of all motor vehicles and mobile equipment where such a company can even set its own prices and fees unilaterally to the detriment of taxpayers in Kenya.
31. It is the Exparte Applicant’s contention that there would be a scenario where a monopoly be in the market is created and any competitors would not only be swatted away but entirely crushed using all manner of ways available to the persons with the controlling interest or monopoly.
32. The Exparte Applicant contends that the Court ought to take judicial notice of the fact that any allegations of forgery and falsifying of documents must be substantiated, verified and authenticated by the government agency with the mandate and capacity to carry out such a task.
33. In fact, when the Exparte Applicant appeared before the Parliamentary Investment Committee and in its report of June, 2020, at Chapter Two on its observations and findings, page 47 of the report (page 387 of the Annexures) touching on the same documents being referred to by the 1st Respondent herein states that:
“(24) The Authority has also written to the Directorate of Criminal Investigations on 25thFebruary, 2020 seeking assistance in verifying the alleged falsification and misrepresentation of documents by the two companies.
(25) At the time of compiling this report, there was no indication from PPRA that and the DCI that they had concluded investigating the matter….”
34. The Applicant has advanced the argument that over and above the foregoing, the Directorate of Criminal Investigations vide a letter dated 19th December 2024 which was written to the Exparte Applicant a copy of which was furnished to the 2nd Respondent wherein the Directorate of Criminal Investigations expressly that investigations are still on-going wherein the said investigations directly related to the documents and matter before the Debarment Committee.
35. It is the Exparte Applicant’s case that the Directorate of Criminal Investigations expressly set out that it was still actively investigating the documents and we urge this Court to take the same into great consideration.
36. The Applicant believes that The 2nd Respondent in making any findings at prima facie stage was bound to ensure that the law is followed and abided by, to the latter, in a manner that demonstrates that the findings against the Applicant were made within the confines of the law.
37. It argues that if it is debarred based on the damaging unfounded allegations, its reputation will suffer irreparably hence affecting the right to property under Article 47 of the Constitution of Kenya 2010.
38. It argues that many countries have adapted policy requirements to ensure that respective tenders related Pre-Export Verification of Conformity (PVOC) to Standard Services-Used Motor Vehicles, Mobile Equipment and Used Spare Parts are carried out by a minimum of two to three companies so that checks and balances are always there.
The Applicant's submissions;
39. The Exparte Applicant submits that the debarment Application Number 6 of 2025 was res judicata for the reasons that the facts, evidence and grounds relied on in the said Application were similar to the grounds relied on in Debarment Application Number 10 of 2024 and more importantly in Debarment Application Number 4 and 5 of 2021.
40. It is that Applicant’s case its that both decisions relied on the above states irregularities to debar the Applicant for a period of three years, and the as per the decision dated 2nd June 2021, the Applicant served the debarment period to its conclusion and should not be subjected to the debarment as ordered in decision dated 20thJune 2025.
41. It relies on Article 47 (1) and (2) of the Constitution provide for the right to a fair administrative action, stating that:
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair;
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
42. The Applicant also invokes Section 4 (1) of the Fair Administrative Actions Act states as follows:
Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
43. It further submits that under Regulation 2 of the Public Procurement and Asset Disposal Debarment Proceedings Manual (Debarment Manual) which states as follows on the Objectives of debarment:
The objectives of debarment are to;
(a) Promote good governance in public procurement and asset disposal.
(b) Promote fair competition and transparency in public procurement and asset disposal.
(c) Penalize errant suppliers, contractors and consultants.
(d) Serve as a deterrent measure for suppliers, contractors and consultants from engaging in unethical practices.
(e) Increase public confidence in procurement and asset disposal.
44. It is its submission that the above provisions highlight the importance of fair administrative practices in procurement sector and the requirement of the Public Procurement Regulatory authority, through its board, to embrace and uphold those values in Debarment proceedings.
45. It submits that the proceedings in Debarment Application No.6 of 2025 were defective ab initio and ought to be barred by Res Judicata because the Applicant seeks to re-litigate an already heard and determined issue in Debarment Application Number 4 and 5 of 2021; and Number 10 of 2024, and which decision was quashed the High Court on 9th April 2025.
46. It submits that the decision in Debarment Application No.6 of 2025 has crucified the Applicant based on the same facts issues and evidence consequently raising the issue of Double Jeopardy.
47. It submits that The 2nd Respondent/Public Procurement Regulatory Board should have struck out the debarment Application as it sought to re-litigate already concluded issues, a clear case of res judicata and abuse of the process based on Section 7 of the Civil Procedure Act which provides for Res Judicata:
48. It submits that The Halsbury Laws of England expound on the concept of Res Judicata as follows:
“The doctrine of res judicata provides that, where a decision is pronounced by a judicial or other tribunal with jurisdiction over a particular matter, that same matter cannot be reopened by parties bound by the decision, save on appeal. It is most closely associated with the legal principle of 'cause of action estoppel' , which operates to prevent a cause of action being raised or challenged by either party in subsequent proceedings where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties (or their privies), and having involved the same subject matter. However, res judicata also embraces 'issue estoppel', a term that is used to describe a defence which may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, but, in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue. For this reason, res judicata has been described as a portmanteau term which is used to describe a number of different legal principles with different juridical origins upon which the courts have endeavoured to impose some coherent scheme only in relatively recent times.”
49. Reliance is placed in the case of The United Kingdom Supreme Court in Virgin Atlantic Airways Limited (Respondent) v Zodiac Seats UK Limited (formerly known as Contour Aerospace Limited (Appellant) [2013]; Lord Sumption stated as follows on the general principles of the Res Judicata:
“Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle. The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is “cause of action estoppel”. It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings.
Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages: see Conquer v Boot [1928] 2 KB 336.
Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given upon it, and the claimant’s sole right as being a right upon the judgment. Although this produces the same effect as the second principle, it is in reality a substantive rule about the legal effect of an English judgment, which is regarded as “of a higher nature” and therefore as superseding the underlying cause of action: see King v Hoare (1844) 13 M & W 494, 504 (Parke B). At common law, it did not apply to foreign judgments, although every other principle of res judicata does. However, a corresponding rule has applied by statute to foreign judgments since 1982: see Civil Jurisdiction and Judgments Act 1982, section 34.
Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston’s Case (1776) 20 St Tr 355. “Issue estoppel” was the expression devised to describe this principle by Higgins J in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537, 561 and adopted by Diplock LJ in Thoday v Thoday [1964] P 181, 197-198. Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones.
Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger.”
50. It submits that The Court went further to quote the celebrated case of Henderson v Henderson in its explanation of the difference and intersection between res-judicata and abuse of process as follows:
“He expressed his own view of the relationship between the two at p 31 as follows: “Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.
The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party.
It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”
After the quotation, the Court states as follows:
“Res judicata and abuse of process are juridically very different. Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court’s procedural powers. In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation. That purpose makes it necessary to qualify the absolute character of both cause of action estoppel and issue estoppel where the conduct is not abusive. As Lord Keith put it in Arnold v National Westminster Bank at p 110G, “estoppel per rem judicatam, whether cause of action estoppel, or issue estoppel is essentially concerned with preventing abuse of process.”
51. It submits that The House of Lords of the United Kingdom in Thrasyvoulou v Secretary of State for the Environment, Oliver v Secretary of State for the Environment [1990] 2 AC 273 further elaborated on the nature of Res Judicata follows:
“The doctrine of res judicata rests on the twin principles which cannot be better expressed than in terms of the two Latin maxims "interest reipublicae ut sit finis litium" and "nemo debet bis vexari pro una et eadem causa." These principles are of such fundamental importance that they cannot be confined in their application to litigation in the private law field. They certainly have their place in criminal law. In principle they must apply equally to adjudications in the field of public law. In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions.”
52. The Court in determining the Appeal before it stated as follows:
“The inspector who determined the appeal against this notice in favour of the local planning authority found that there had been a material change in the character of the site as a whole since 1963 to the use as described in the notice. It is submitted for the local planning authority that no relevant issue estoppel arises from the first inspector's decision because it concerned a part only of the site and concerned only a use for storage purposes. It seems to me, however, that the first inspector's decision involved by necessary implication the finding that the use in fact being made of the site at the date of service of the first enforcement notice was an established use, however described. It is expressly conceded in these proceedings that there had been no material change in the character of the use between the dates of the tw
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1) An order of Certiorari to remove into this Honourable Court and quash the entire decision of the 2nd Respondent herein in Debarment Application Number 6 of 2025, dated and delivered on 20th June 2025.
2) An order of Prohibition to prohibit and/or restrain the Respondents and/or their agents and any other persons from implementing the decision delivered in Debarment Application Number 6 of 2025, dated and delivered on 20th June 2025.
3) Such other, further order and/or incidental orders or directions as this Honorable Court shall deem just and expedient;
4) Costs of this Application be borne by the Respondents.
The Applicant's Case;
2. Through a decision dated and delivered on 20th June 2025 the 2nd Respondent made a decision to debar the Exparte Applicant. The Applicant aggrieved that the 2nd Respondent did not fully consider the Applicant’s argument and submissions filed during the Debarment proceedings.
3. The Applicant strongly believes that the 1st Respondent’s Request for Debarment dated 10th April 2025 was based on facts and evidence similar to those raised in Debarment Application Number and 5 of 2021.
4. It concludes that in the circumstances, the 2nd Respondent’s decision that there was a prima facie case was made unlawfully, irrationally and unfairly and the same was contrary to Articles 10, 47 and Article 50 of the Constitution wherein the Exparte Applicant was denied the right to a fair hearing. It is the applicants case that this is contrary to The Public Procurement and Asset Disposal Debarment Proceedings Manual 2022
5. The Applicant is concerned that The 2nd Respondent’s decision sought to hear and determine issues and evidence that had already been relied on in Debarment Applications No.4 and 5 of 2021, in which a decision was issued on 25th March 2022 debarring the Exparte Applicant and the Exparte Applicant has already suffered the ramifications of its actions. According to it, Debarment Application No.6 of 2025 is therefore barred by Res Judicata.
6. It identifies the following res judicata in Debarment Application No.6 of 2025:
a. Under paragraphs 236 of the decision dated 2nd June 2021 (delivered on 25th March 2022) — refer pages 1435 and 1436 of the Annexures, the Debarment Committee was invited to make a determination on the existence of JLS Investments Group Limited and it did so in the said paragraph. The same invitation was also extended to the Debarment Committee as in decision dated on 20th June 2025 wherein it made the same finding at paragraph 88(refer page 22 of the Annexures), wherein the company was deemed to be non-existent.
b. Additional y, at paragraphs 236 and 237 of the decision dated 2nd June 2021 (delivered on 25th March 2022)— refer pages 1435 and 1436 of the Annexures, the Debarment Committee was invited to lease agreement executed in 2019, wherein the Committee made its decision in the aforesaid paragraphs. The same invitation was also extended to the Debarment Committee as in its Decision dated 20th June 2025 wherein it made at paragraph 90 (refer page 22 of the Annexures), wherein the lease was deemed to be falsified.
c. Under paragraphs 238, 239 and 240 of the decision dated 2nd June 2021 (delivered on 25th March 2022) — refer pages 1436 and 1437 of the Annexures, the Debarment Committee made a determination as to the notarisation of the Lease Agreement between Itech Auto Finance and Auto Terminal UK Limited by Drake and Scott. The same was also determined at paragraphs 83, 84, 85 and 86 of the decision dated 20th June 2025 (refer pages 20 and 21 of the Annexures), wherein the documents were deemed to have been falsified.
d. Under paragraph 235 of the decision dated 2nd June 2021(delivered on 25th March 2022)— refer pages 1435 of the Annexures, the Debarment Committee was invited to make a determination considering the affairs of Pal Auto Garage, which it did. The same invitation was extended to the Debarment Committee, and a decision was made under paragraph 92 of the decision dated 20th June 2025(refer page 23 of the Annexures) wherein was dismissed due to insufficient evidence.
7. The Applicant further argues that it served the debarment period to its conclusion and should not be subjected to the debarment as ordered in decision dated 20th June 2025.
8. It buttresses its case through the argument that the Court previously in Nairobi High Court in HCJR/E054/2025 highlighted the fact that the 2ndRespondent had acted ultra vires, irrationally and unfairly when making its decision outside timelines and regrettably, this time, the 2nd Respondent has proceeded to make a determination contrary to Articles 10, 47 and 50 of the Constitution wherein the Exparte Applicant was denied the right to a fair hearing.
9. In Nairobi High Court in HCJR/E054/2025 Auto Terminal Japan Limited vs State Law the court found the Judicial Review Application meritorious on grounds of lack of jurisdiction on the part of the Public Procurement Regulatory Board and quashed the Public Procurement Regulatory Board’s debarment decision.
10. In the instant suit, the Applicant advances the a rationale and argues that comparatively, in criminal proceedings that principle of ‘double jeopardy’ is the basis that underlies the pleas of autrefois convict and acquit, which assert that once a person has been convicted or acquitted, they cannot be charged against on the same offence.
11. The Debarment proceedings in Debarment Application No.6 of 2025 therefore serve no purpose according to the Exparte Applicant since it did not benefit in any conceivable manner from the International Tenders No. KEBS 019/2017-2020 and KEBS/RT/011/2021-2024, and the initial debarment was more than sufficient sanctions to the Exparte Applicant.
12. The Exparte Applicant had already been subjected to disciplinary proceedings on merit and received penalties for their actions, vide a decision to debar it on 25th March 2022.
13. The Applicant relies on Article 50 (1) and (2) of the Constitution of Kenya which states that:
“50. Fair hearing.
(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
(2) Every accused person has the right to a fair trial, which includes the right—
(o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted.”
14. It argues that the Debarment proceedings filed at the 2nd Respondent are contrary to Section 7 of the Civil Procedure Act states as follows;
“7. Res judicata
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it.
Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”
15. In criminal law the doctrine of res judicata is captured under the doctrine of “double jeopardy” and to compare the two doctrines, we associate ourselves with the decision in the Supreme Court of Kenya Case Petition No. E015 of 2024 Nyagol v Judicial Service Commission & another [2024] KESC 69 (KLR), the Honourable Court stated that this doctrine of double jeopardy is based on the Latin maxim nemo debet bis vexari pro una et eadem causa which means that no man shall be put in jeopardy twice for the same offence. It is also founded on public policy that there ought to be an end to the same litigation described it not only as a procedural defence but a constitutional protection against subsequent trial based on a prior acquittal or conviction.
16. Stones Justices’ Manual, Part I Magistrates’ Court Procedure in Criminal Proceedings where in discussing Double Jeopardy states as follows:
“Double jeopardy is, in effect, a discretionary extension of the rules of law defining the defences of autrefois convict and acquit. A second trial involving the same or similar facts may in the discretion of the court be stayed if to proceed would be oppressive or prejudicial and therefore an abuse of the process of the court.”
17. In Supreme Court decision in Petition No.17 of 2015 John Florence Maritime Services Limited and another v Cabinet Secretary Transport and Infrastructure & 3 others [2021] the following elements must be demonstrated:
a) There is a former judgment or order which was final;
b) The judgment or order was on merit;
c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action.
18. It is the Exparte Applicant’s case, that there was a former decision by the 2nd Respondent in Debarment Application Number 4 and 5 of 2021 which was delivered to parties on 25th March 2022, and consequently, both issue and cause of action estoppel arise preventing the same matter from been brought against the Exparte Applicant again.
19. It submits that Regulation 19 of the Debarment Manual addresses the issue of finality and states that: “The decisions of the Committee shall be final and binding on the parties to the proceedings and shall take effect immediately.”
20. It argues that once the decision was issued on 25th March 2022, the issues were determined to finality, and the same issues could not be raised subsequently.
21. It is the Exparte Applicant’s case that all the issues and documents referred to by the Exparte Applicant on Debarment Application Number 6 of 2025 were analysed by the 2nd Respondent and a finding on the same was made in Debarment Application Number 4 and 5 of 2021 on 25th March 2022.
22. It is the Exparte Applicant’s submission that the Respondents were estopped by the doctrine of res judicata from prosecuting Debarment Application Number 6 of 2025.
23. It argues that the 2nd Respondent violated Article 10(1)(a) (b)(c), Article 47(1) and Article 50 of the Constitution by failing to give the Exparte Applicant a fair hearing and by making a determination that a prima facie case existed against the Exparte Applicant despite the same facts and issues being finally determined vide a decision that was delivered on 25th March 2022 in Debarment Application Number 4 and 5 of 2021.
24. It argues that specifically, the 2nd Respondent violated Article 47(1) and Article 50 of the Constitution by failing to give the Applicant a fair hearing as well as Section 4 of Fair Administrative Action Act in the following manner:
a. Failure to make a determination that there was no prima facie case against the Exparte Applicant in Debarment Application Number 6 of 2025.
b. Failure to make a determination at the prima facie stage that the facts, evidence and parties were the same as those in Debarment Application Number 4 and 5 of 2021.
c. Failure to dismiss Debarment Application Number 6 of 2025 at the prima facie stage.
25. It argues that the said prima facie case was established against the Exparte Applicant on account of material non-disclosure on the part of the 1st Respondent who did not disclose to the 2nd Respondent that all the issues in questions that are being raised in its Debarment Application were already heard and determined conclusively in Debarment Application Number 4 and 5 of 2021.
26. It argues that the 1st Respondent is aware that International Tender No. KEBS/RT/011/2021-2024 for Provision of Pre-Export Verification of Conformity (PVOC) to Standard Services-Used Motor Vehicles, Mobile Equipment and Used Spare Parts lapses this year and that bidders will be subjected to a procurement process. In the circumstances, the 1st Respondent is desirous of ensuring that the Respondent does not take part in the said tender.
27. It argues that the 1st Respondent who used similar tactics when lodging Debarment Application Number 5 of 2021 just as the previous tender i.e. Tender No. KEBS/T010/2019-2021 for Enlargement of Provision of Pre-Export Verification of Conformity (PVOC) to Standard Services- Used Motor Vehicles, Mobile Equipment and Used Spare Parts was about to be renewed.
28. It is convinced that there is an on-going and very well-calculated witch-hunt aimed at ensuring that the Applicant does not partake in any tender processes involving the Pre-Export Verification of Conformity (PVOC) to Standard Services- Used Motor Vehicles, Mobile Equipment and Used Spare Parts.
29. According to the Applicant, it is apparent that the 1st Respondent is engaged in a form of legal warfare, in some legal doctrines, termed as “lawfare” wherein the 1st Respondent is attempting to use the legal process to settle business scores, to frustrate the operations of the Exparte Applicant and to ensure that Kenya remains to have one company being a monopoly in the motor vehicle inspection sector.
30. To the Applicant, this is not only a national security risk but a national safety and health risk whereby only one company is tasked with inspection standards of all motor vehicles and mobile equipment where such a company can even set its own prices and fees unilaterally to the detriment of taxpayers in Kenya.
31. It is the Exparte Applicant’s contention that there would be a scenario where a monopoly be in the market is created and any competitors would not only be swatted away but entirely crushed using all manner of ways available to the persons with the controlling interest or monopoly.
32. The Exparte Applicant contends that the Court ought to take judicial notice of the fact that any allegations of forgery and falsifying of documents must be substantiated, verified and authenticated by the government agency with the mandate and capacity to carry out such a task.
33. In fact, when the Exparte Applicant appeared before the Parliamentary Investment Committee and in its report of June, 2020, at Chapter Two on its observations and findings, page 47 of the report (page 387 of the Annexures) touching on the same documents being referred to by the 1st Respondent herein states that:
“(24) The Authority has also written to the Directorate of Criminal Investigations on 25thFebruary, 2020 seeking assistance in verifying the alleged falsification and misrepresentation of documents by the two companies.
(25) At the time of compiling this report, there was no indication from PPRA that and the DCI that they had concluded investigating the matter….”
34. The Applicant has advanced the argument that over and above the foregoing, the Directorate of Criminal Investigations vide a letter dated 19th December 2024 which was written to the Exparte Applicant a copy of which was furnished to the 2nd Respondent wherein the Directorate of Criminal Investigations expressly that investigations are still on-going wherein the said investigations directly related to the documents and matter before the Debarment Committee.
35. It is the Exparte Applicant’s case that the Directorate of Criminal Investigations expressly set out that it was still actively investigating the documents and we urge this Court to take the same into great consideration.
36. The Applicant believes that The 2nd Respondent in making any findings at prima facie stage was bound to ensure that the law is followed and abided by, to the latter, in a manner that demonstrates that the findings against the Applicant were made within the confines of the law.
37. It argues that if it is debarred based on the damaging unfounded allegations, its reputation will suffer irreparably hence affecting the right to property under Article 47 of the Constitution of Kenya 2010.
38. It argues that many countries have adapted policy requirements to ensure that respective tenders related Pre-Export Verification of Conformity (PVOC) to Standard Services-Used Motor Vehicles, Mobile Equipment and Used Spare Parts are carried out by a minimum of two to three companies so that checks and balances are always there.
The Applicant's submissions;
39. The Exparte Applicant submits that the debarment Application Number 6 of 2025 was res judicata for the reasons that the facts, evidence and grounds relied on in the said Application were similar to the grounds relied on in Debarment Application Number 10 of 2024 and more importantly in Debarment Application Number 4 and 5 of 2021.
40. It is that Applicant’s case its that both decisions relied on the above states irregularities to debar the Applicant for a period of three years, and the as per the decision dated 2nd June 2021, the Applicant served the debarment period to its conclusion and should not be subjected to the debarment as ordered in decision dated 20thJune 2025.
41. It relies on Article 47 (1) and (2) of the Constitution provide for the right to a fair administrative action, stating that:
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair;
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
42. The Applicant also invokes Section 4 (1) of the Fair Administrative Actions Act states as follows:
Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
43. It further submits that under Regulation 2 of the Public Procurement and Asset Disposal Debarment Proceedings Manual (Debarment Manual) which states as follows on the Objectives of debarment:
The objectives of debarment are to;
(a) Promote good governance in public procurement and asset disposal.
(b) Promote fair competition and transparency in public procurement and asset disposal.
(c) Penalize errant suppliers, contractors and consultants.
(d) Serve as a deterrent measure for suppliers, contractors and consultants from engaging in unethical practices.
(e) Increase public confidence in procurement and asset disposal.
44. It is its submission that the above provisions highlight the importance of fair administrative practices in procurement sector and the requirement of the Public Procurement Regulatory authority, through its board, to embrace and uphold those values in Debarment proceedings.
45. It submits that the proceedings in Debarment Application No.6 of 2025 were defective ab initio and ought to be barred by Res Judicata because the Applicant seeks to re-litigate an already heard and determined issue in Debarment Application Number 4 and 5 of 2021; and Number 10 of 2024, and which decision was quashed the High Court on 9th April 2025.
46. It submits that the decision in Debarment Application No.6 of 2025 has crucified the Applicant based on the same facts issues and evidence consequently raising the issue of Double Jeopardy.
47. It submits that The 2nd Respondent/Public Procurement Regulatory Board should have struck out the debarment Application as it sought to re-litigate already concluded issues, a clear case of res judicata and abuse of the process based on Section 7 of the Civil Procedure Act which provides for Res Judicata:
48. It submits that The Halsbury Laws of England expound on the concept of Res Judicata as follows:
“The doctrine of res judicata provides that, where a decision is pronounced by a judicial or other tribunal with jurisdiction over a particular matter, that same matter cannot be reopened by parties bound by the decision, save on appeal. It is most closely associated with the legal principle of 'cause of action estoppel' , which operates to prevent a cause of action being raised or challenged by either party in subsequent proceedings where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties (or their privies), and having involved the same subject matter. However, res judicata also embraces 'issue estoppel', a term that is used to describe a defence which may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, but, in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue. For this reason, res judicata has been described as a portmanteau term which is used to describe a number of different legal principles with different juridical origins upon which the courts have endeavoured to impose some coherent scheme only in relatively recent times.”
49. Reliance is placed in the case of The United Kingdom Supreme Court in Virgin Atlantic Airways Limited (Respondent) v Zodiac Seats UK Limited (formerly known as Contour Aerospace Limited (Appellant) [2013]; Lord Sumption stated as follows on the general principles of the Res Judicata:
“Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle. The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is “cause of action estoppel”. It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings.
Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages: see Conquer v Boot [1928] 2 KB 336.
Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given upon it, and the claimant’s sole right as being a right upon the judgment. Although this produces the same effect as the second principle, it is in reality a substantive rule about the legal effect of an English judgment, which is regarded as “of a higher nature” and therefore as superseding the underlying cause of action: see King v Hoare (1844) 13 M & W 494, 504 (Parke B). At common law, it did not apply to foreign judgments, although every other principle of res judicata does. However, a corresponding rule has applied by statute to foreign judgments since 1982: see Civil Jurisdiction and Judgments Act 1982, section 34.
Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston’s Case (1776) 20 St Tr 355. “Issue estoppel” was the expression devised to describe this principle by Higgins J in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537, 561 and adopted by Diplock LJ in Thoday v Thoday [1964] P 181, 197-198. Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones.
Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger.”
50. It submits that The Court went further to quote the celebrated case of Henderson v Henderson in its explanation of the difference and intersection between res-judicata and abuse of process as follows:
“He expressed his own view of the relationship between the two at p 31 as follows: “Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.
The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party.
It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”
After the quotation, the Court states as follows:
“Res judicata and abuse of process are juridically very different. Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court’s procedural powers. In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation. That purpose makes it necessary to qualify the absolute character of both cause of action estoppel and issue estoppel where the conduct is not abusive. As Lord Keith put it in Arnold v National Westminster Bank at p 110G, “estoppel per rem judicatam, whether cause of action estoppel, or issue estoppel is essentially concerned with preventing abuse of process.”
51. It submits that The House of Lords of the United Kingdom in Thrasyvoulou v Secretary of State for the Environment, Oliver v Secretary of State for the Environment [1990] 2 AC 273 further elaborated on the nature of Res Judicata follows:
“The doctrine of res judicata rests on the twin principles which cannot be better expressed than in terms of the two Latin maxims "interest reipublicae ut sit finis litium" and "nemo debet bis vexari pro una et eadem causa." These principles are of such fundamental importance that they cannot be confined in their application to litigation in the private law field. They certainly have their place in criminal law. In principle they must apply equally to adjudications in the field of public law. In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions.”
52. The Court in determining the Appeal before it stated as follows:
“The inspector who determined the appeal against this notice in favour of the local planning authority found that there had been a material change in the character of the site as a whole since 1963 to the use as described in the notice. It is submitted for the local planning authority that no relevant issue estoppel arises from the first inspector's decision because it concerned a part only of the site and concerned only a use for storage purposes. It seems to me, however, that the first inspector's decision involved by necessary implication the finding that the use in fact being made of the site at the date of service of the first enforcement notice was an established use, however described. It is expressly conceded in these proceedings that there had been no material change in the character of the use between the dates of the tw
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