Nancy Njoroge v County Executive of Murang’a & 2 others [2016] KEELRC 110 (KLR)
The bottom line
#Murang'a County illegally restarted a public board recruitment to favour a new candidate, and the Nyeri Employment Court stopped it and awarded costs.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is not res judicata; the parties differ and the issues arose after the earlier judgment.
The three essential elements of res judicata are an earlier decision on the issue, a final judgment on the merits, and the same parties or their privities. The petitioner was not a party to the earlier suit; filing a supporting affidavit there did not make her a party. Some material facts, such as the interested party's nomination for approval, arose after the earlier judgment of 18.11.2016 and could not have been raised then even with due diligence. The preliminary objection therefore failed.
Lawfulness of the second recruitment process
The second recruitment process was unlawful because the first process was unconcluded and the declaring authority was functus officio.
The initial recruitment commenced and its outcome was never communicated nor was the process cancelled. Having declared the vacancy publicly, the county government's power to redeclare it was exhausted. There was thus no vacancy to re-advertise and no authority to recruit afresh for the same office. Further, terminating the first process to prevent the petitioner's fair evaluation, under pressure and intimidation from the governor, contravened Articles 232 and 236 of the Constitution, and the petitioner had a legitimate expectation to receive the results of the first process.
Remedies
The petitioner is entitled to the declarations and orders as prayed, her uncontroverted evidence having established the pleaded facts.
Having found the second recruitment unlawful and the petitioner's constitutional rights under Articles 27 and 232 contravened, the court found her entitled as prayed. Her affidavit evidence was not specifically controverted by the respondents, and the claims of unfair pressure, discrimination and favouritism stood unrebutted.
Legal principles established
#- Filing a supporting affidavit does not make the deponent a party to a suit for purposes of res judicata.
- Once a public body declares a vacancy and invites applicants, its power to redeclare the vacancy is exhausted while the process remains unconcluded - functus officio.
- Public officers are protected from victimization or intimidation for performing lawful duties under Article 236 of the Constitution.
Court orders
#- 1.Declaration that the refusal of the 1st respondent to process the petitioner's appointment as chairperson per the Manpower Services recommendations violated her rights under Articles 27 and 232 of the Constitution
- 2.Order directing the 1st and 2nd respondents to proceed with the recruitment of the chairperson only in accordance with the process undertaken and recommendations made by Manpower Services
- 3.Order stopping the continued processing of the interested party or any other person as chairperson following the 2nd irregular recruitment exercise
- 4.Respondents to pay the petitioner's costs of the petition
- Jurisdiction invoked
- Section 12(1)(a) of the Employment and Labour Relations Court Act, Cap. 24B; Articles 41 and 232 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nancy Njoroge v County Executive of Murang’a & 2 others [2016] KEELRC 110 (KLR)", Case Analysis (2016). Petition filed 02.12.2016, Employment and Labour Relations Court at Nyeri (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/110/eng@2016-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.