County Executive Murang’a v Njoroge & 2 others (Civil Appeal 15 of 2017) [2022] KECA 91 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a challenge to Murang'a County's board recruitment because the candidate never re-applied and was already bound by an earlier court case.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition was res judicata the former suit (Rahab Gathoni Petition No. 5 of 2016)
The petition was res judicata. The issues on recruitment of the chairperson were directly and substantially determined in the former suit; the 1st respondent, though not formally a petitioner, swore an affidavit in support of that petition and was bound by its outcome, including the court's sanction that the second recruitment proceed expeditiously in accordance with the law.
Applying section 7 of the Civil Procedure Act, the court identified the elements of res judicata: same or substantially same issues, same parties or parties litigating under the same title, and a competent court's final determination. The former suit had considered the initial recruitment, endorsed its explanation, and sanctioned the subsequent process. The 1st respondent supported that petition by affidavit and could not escape its findings. Her claim that the second process was irregular arose only because the first suit's judgment permitted it.
Whether the trial court erred in making adverse findings against the governor, a non-party
The court found error in the trial judge's treatment of the allegations but held there was no need to join the governor since he acted in his capacity qua governor, not personally; the County Secretary's affidavit sufficed to respond. In any event the 1st respondent, who did not re-apply in the second recruitment, had no complaint of non-consideration.
The court distinguished allegations made against the governor in his official capacity from personal capacity; official acts of the county government are attributable to the county government as a juristic person. Although the trial judge found undue pressure by the governor, the decisive fact was the 1st respondent's own failure to re-apply despite a prior judgment permitting re-application, which independently defeated her petition.
The 1st respondent's entitlement to the reliefs sought
The reliefs failed because the prayer to stop the recruitment had already been determined in the former suit, which directed the recruitment to proceed in accordance with the law; and a petitioner alleging constitutional infringement must plead with precision.
The court invoked the Anarita Karimi Njeru standard requiring precision in pleading constitutional violations. The 1st respondent had no constitutional right to appointment, only an equal right to be considered, and by not re-applying she forfeited even that. The prayers re-litigated matters already disposed of in the former suit, hence barred by res judicata.
Legal principles established
#- A party who swears an affidavit in support of a petition and litigates through it cannot later disavow the proceedings on the ground that she was not formally a party; issues directly and substantially determined in that suit bar a subsequent suit on the same issues (res judicata).
- Once a vacancy has been advertised and candidates invited, the recruitment authority may not cancel and re-advertise the same vacancy at will; however, where a court has sanctioned a recruitment to proceed in accordance with the law, a candidate who does not re-apply cannot complain of non-consideration.
- Allegations against a governor acting in his official capacity qua governor need not enjoin him personally; the county government responds through officers such as the County Secretary.
Court orders
#- 1.The appeal was allowed
- 2.The judgment of the Employment and Labour Relations Court allowing the petition was set aside
- 3.An order was substituted dismissing the petition with no order as to costs
- On appeal from
- Employment and Labour Relations Court
- Petition No. 9 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (rule 99(2) invoked for abatement); the appeal lay from the ELRC decision on the petition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Executive Murang’a v Njoroge & 2 others (Civil Appeal 15 of 2017) [2022] KECA 91 (KLR)", Case Analysis (2022). Civil Appeal arising from ELRC Petition No. 9 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/91/eng@2022-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.