Former Kenya Film Classification Board (KFCB) chief executive Ezekiel Mutua has suffered a setback after the Anti-Corruption High Court declined his bid to strike out a Sh22.6 million case seeking recovery of allegedly irregular salary and allowances.
Justice Benjamin Musyoki on Friday rejected Mutua’s bid to have the Ethics and Anti-Corruption Commission (EACC) case against him struck out after he argued that the dispute had already been determined by three State Corporations Appeal Tribunal appeals.
In the case, the EACC is seeking to recover Sh22,658,085 allegedly paid to Mutua through salary increases and entertainment allowances during his tenure as KFCB chief executive.
The Commission describes the case as one for recovery of irregular allowances.
According to the EACC case, Mutua’s monthly salary was allegedly increased to Sh1.1 million, above the Sh480,000 limit set by the Salaries and Remuneration Commission, while he allegedly received a monthly entertainment allowance of Sh100,000.
The Commission says the disputed payments were made between 2016 and 2021.
The suit also names former KFCB board members, including Bishop Jackson Kosgei, David Lebayleyia, Nehemiah Maina, Normandy Ogola, Khadija Omar Rama, Katua Nzile, Chris Solomon Nambaga, Christiana Saiti, Ernest Kerich and Abraham Koech.
However, Justice Musyoki struck out the suit against the third, fourth and sixth defendants after finding that the issues against them had already been determined by the State Corporations Appeal Tribunal.
“And my finding is that the commission is in this matter litigating under the same title as the Inspector General of State Corporations; both are representing the public,” Justice Musyoki said.
The judge found that the suit against the three defendants was res judicata in relation to State Corporations Appeal Tribunal Appeals numbers E001 of 2024, E003 of 2024 and E004 of 2024.
“It is my finding that this suit is res judicata to the State Corporations Appeal Tribunal Appeals numbers E001 of 2024, E003 of 2024, and E004 of 2024,” Justice Musyoki ruled.
He consequently ordered: “The suit against the third, fourth, and sixth defendant is hereby struck out with costs.”
The judge, however, directed that the recovery case continue against the remaining defendants, including Mutua.
“The suit shall henceforth proceed against the first, second, fifth, seventh, eighth, ninth, tenth, eleventh, twelfth, and fourteenth defendants,” Justice Musyoki directed.
Mutua, through his lawyer Edward Rombo, then asked the court to extend the finding to his client, arguing that the same dispute had already been dealt with by the State Corporations Appeal Tribunal.
Rombo told the judge that Mutua and another defendant were in the same position as the sixth defendant because they had also raised res judicata in their defence.
“The first and second defendants, in this case, are also in the same position as the sixth defendant,” Rombo said.
He further argued that the defendants had already had their cases determined before the Appeals Tribunal.
“They all had their cases done at the Appeals Tribunal, rulings were made, and then again, this case was brought up in the ACC Court,” he said.
Justice Musyoki, however, questioned whether Rombo’s clients had been parties to the three tribunal appeals that formed the basis of his finding.
“Were your clients in civil appeal number E001 of 2024?” the judge asked.
The lawyer replied: “No.”
The judge then made it clear that his finding could not automatically be extended to parties, including Mutua, who were not involved in the three tribunal appeals.
“Then my ruling is clear that this suit is res judicata; State Corporations Appeals Tribunal appeals numbers are E001 of 2024, E003 of 2024 and E004 of 2024,” the judge said.
“So if your clients were not in that, and in any event, you had not made an application, so I'm not making a finding on that,” he added.
Rombo subsequently indicated that he would make a formal application seeking similar orders for his clients.
The court directed that the matter proceed against the remaining defendants and be mentioned before the Deputy Registrar for a pre-trial conference on November 9, 2026.
