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Court of AppealPartially AllowedCivil Appeal arising from ELRC Petition No. 9 of 2016

County Executive Murang’a v Njoroge & 2 others (Civil Appeal 15 of 2017) [2022] KECA 91 (KLR)

Court of Appeal
4 February 2022
4,899 words in judgment
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The bottom line

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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

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Executive summary

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The Court of Appeal (Nambuye, Karanja and Murgor, JJA) allowed the County Government of Murang'a's appeal against the Employment and Labour Relations Court's judgment, which had granted Nancy Waithira Njoroge's petition challenging the second recruitment for the chairpersonship of the Murang'a County Public Service Board. The trial court had rejected a plea of res judicata, held that the authority was functus officio after the first advertisement, and quashed the second recruitment, with adverse findings that the governor had exerted undue pressure. The appellate court, exercising its first-appeal duty to re-evaluate the evidence, framed two issues: whether the petition was res judicata ELRC Petition No. 5 of 2016 (filed by Rahab Gathoni Gochohi), and whether the trial court erred in making adverse findings against the governor, a non-party. On the first issue, it held that the recruitment of the chairperson had been directly and substantially determined in the former suit, which had sanctioned the second recruitment to proceed expeditiously in accordance with the law. Although the 1st respondent was not formally a petitioner in the former suit, she swore a supporting affidavit and could not disavow those proceedings. She also never re-applied in the second recruitment, so she could not complain of non-consideration, and she had no constitutional right to appointment, only an equal right to be considered. On the second issue, the court held that the governor acted qua governor, not personally, so joinder was unnecessary, the County Secretary's affidavit sufficing. Setting aside the ELRC judgment, the court dismissed the petition with no order as to costs.

Key legal issues

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01

Whether the petition was res judicata the former suit (Rahab Gathoni Petition No. 5 of 2016)

Holding

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.

Reasoning

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.

p. 8
02

Whether the trial court erred in making adverse findings against the governor, a non-party

Holding

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.

Reasoning

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.

p. 9
03

The 1st respondent's entitlement to the reliefs sought

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The appeal was allowed
  2. 2.The judgment of the Employment and Labour Relations Court allowing the petition was set aside
  3. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.