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ELRCDismissedPetition (Kisumu), filed 26 April 2021· [2021] KEELRC 202 (KLR)

Michael Nyangi & another v Homa Bay County Assembly Service Board & 3 others [2021] KEELRC 202 (KLR)

Employment and Labour Relations Court
15 December 2021
RSRadido Stephen
770 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed two former Homa Bay County Assembly Board nominees' petition because they had already litigated the same dispute in a prior case.

What this practically means

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Executive summary

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Hon Michael Nyangi and Hon Peter Juma Owuor petitioned the Employment and Labour Relations Court at Kisumu on 26 April 2021, alleging that the County Assembly Service Board of Homa Bay was unlawfully constituted and lacked jurisdiction to revoke their nominations as nominated members of the Board, and that the nomination of Hon Richard Ogindo and Hon Jeff Ongoro to replace them was unlawful because it occurred contrary to subsisting court orders, including an order by Nduma J in Kisumu ELRC Petition No. 21 of 2020 and a Nairobi PPDT order of 10 June 2020. The Board and the County Assembly raised a preliminary plea of res judicata, contending that the same dispute had been adjudicated in Kisumu Judicial Review No. 5 of 2020 (R v Clerk, County Assembly of Homa Bay, ex parte Michael Nyangi), whose judgment was delivered on 11 December 2020. Radido J examined the prior record and found that the Petitioners' challenge concerned the same 12 March 2020 resolution to replace them as Board members; all facts relied on in the Petition were within their knowledge before the judicial review judgment, and no new facts emerged afterwards. The Court held that the dispute was therefore res judicata and that pleading the case in instalments was an abuse of court process. The Petition was dismissed with costs to the Respondents on 15 December 2021.

Key legal issues

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01

Whether the plea of res judicata applies to the Petition

Holding

Yes - the dispute and facts were adjudicated in Kisumu Judicial Review No. 5 of 2020

Reasoning

The Court examined the record of the prior judicial review, in which the Petitioners had challenged the same revocation of their appointments and replacement on the Board. All facts asserted in the Petition were within the Petitioners' knowledge before the prior judgment was delivered on 11 December 2020, and no new facts emerged after that judgment. The same dispute was therefore conclusively adjudicated.

p. 3
02

Whether the Petition is an abuse of court process

Holding

Yes - the Petitioners pleaded their case in instalments

Reasoning

Having all facts available at the time of the judicial review proceedings, the Petitioners ought to have pleaded a full case then. Fragmenting litigation into successive suits on the same facts amounts to abuse of process, compounding the res judicata bar.

p. 3

Legal principles established

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  • A litigant must plead the whole of their case with all facts available at the time of prior proceedings; litigation in instalments constitutes an abuse of court process.

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Costs to the Respondents

Authorities

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Cases cited (1)

  • R v Clerk, County Assembly of Homa Bay & 2 Ors, Julius Nyambok & Ar (Interested Parties) ex parte Michael Nyangi & Ar
    (2020) eKLR, Kisumu Judicial Review No. 5 of 2020
Jurisdiction invoked
Constitution of Kenya, 2010 (employment and labour relations jurisdiction of the ELRC; specific article not quoted in judgment)

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, "Michael Nyangi & another v Homa Bay County Assembly Service Board & 3 others [2021] KEELRC 202 (KLR)", Case Analysis (2021). Petition (Kisumu), filed 26 April 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/202/eng@2021-12-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.