Okiya Omtata Okoiti v Cabinet Secretary, for Information,Communication and Technology & 2 others; Mahmoud Mohamed Noor & 6 others (Interested Parties) [2019] KEELRC 927 (KLR)

Relying on Abdikadir Suleiman, the Court held that its jurisdiction spreads to all issues that relate to, evolve or revolve around employment and labour relations, including enforcement of fundamental rights under Article 22 and the Constitution under Article 258. The test is the subject matter of the dispute, not the remedies sought, the procedure used, or the applicable law. Appointments to a public board of a regulator implicated employment and public office recruitment processes, so jurisdiction was properly available.

Section 7 of the Civil Procedure Act requires the same matter directly and substantially in issue, between the same parties litigating under the same title, previously heard and finally decided. The parties and prayers in Petition 163 of 2019 were substantially different: that petition challenged the constitutionality of section 6(1)(e) of the Kenya Information and Communications Act, whereas the present application challenged the constitutionality of the appointment of the 1st to 4th Interested Parties. The res judicata threshold was therefore not met.

Applying the principles in Board of Management of Uhuru Secondary School, the Court found a prima facie case: the 1st Respondent disregarded the High Court's direction in Petition 163 of 2019 to apply the repealed section 6B procedure, making appointments without advertisement, interviews, or known criteria. Disregard of Ongaya J's status quo orders and an impending board meeting showed risk of irreversible decisions contrary to public interest, rendering the Petition nugatory if relief was denied. The balance of convenience and constitutional values favoured granting the orders despite the 5th Interested Party's operational concerns.