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ELRCDismissedPetition No. 20 of 2020 (with associated Motion)· [2021] KEELRC 1922 (KLR)

John Wekesa Khaoya v Chairman, County Public Service Board of Bungoma & 3 others; County Assembly of Bungoma (Interested Party) [2021] KEELRC 1922 (KLR)

Employment and Labour Relations Court
31 March 2021
967 words in judgment
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The bottom line

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A Kenyan court dismissed a challenge to Bungoma's village administrator recruitment because the petitioner never pursued it and the issues were already decided.

What this practically means

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Executive summary

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The Petitioner, acting in person, petitioned the Employment and Labour Relations Court challenging an advertisement by the Bungoma County Public Service Board published on 2 November 2020 recruiting village administrators. He alleged the recruitment was unlawful because there was no budget for it, no scheme of service existed, village units and boundaries had not been delineated or gazetted, and the advert was discriminatory on age grounds. He sought a declaration that the advert was null and void and general damages for applicants who had responded to the 2020 and 2018 adverts. The Respondents filed replying affidavits; none of the parties filed submissions as directed. The Court found the Petitioner, despite filing under a certificate of urgency, failed to attend three court sessions and to file submissions, exhibiting a lack of interest and a failure to prosecute the Petition - sufficient ground for dismissal. The Court further held the Petition was caught by issue estoppel, a species of res judicata, because the same issues (delimitation of village units for Malakisi Division and the recruitment process) had been litigated and dismissed in Bungoma High Court Petition No. 9 of 2018, Iddi Oniallah Muyonga & Ors v Elizabeth Wanyonyi & Ors, and deprecated the regional practice of lodging the same dispute in different courts. On the merits, the Respondents exhibited the Bungoma County (Decentralised Units) Administration Act, 2015 and a 2020/2021 budget including emoluments for village administrators, defeating the delineation and budget complaints; the absence of a scheme of service could not invalidate the recruitment as that would be speculative. The Court dismissed the Petition with costs to the 2nd and 4th Respondents on 31 March 2021.

Key legal issues

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01

Failure to prosecute the Petition

Holding

The Petitioner's repeated non-attendance and failure to file submissions justified dismissal

Reasoning

The Petitioner approached the Court under a certificate of urgency but failed to attend sessions on 16 November, 30 November and 14 December 2020 and failed to file submissions as directed. Since petitions are ordinarily determined on pleadings and submissions, the Court found the conduct exhibited a lack of interest and constituted failure to prosecute, warranting dismissal on that ground alone.

p. 2
02

Res judicata/issue estoppel

Holding

The Petition was caught by issue estoppel having regard to the determination in Bungoma High Court Petition No. 9 of 2018

Reasoning

The Respondents showed that the issues of delimitation of village units and the recruitment of village administrators for the region had been litigated and dismissed in Bungoma High Court Petition No. 9 of 2018 (Iddi Oniallah Muyonga & Ors v Elizabeth Wanyonyi & Ors). The Court found the present Petition raised the same issues and was barred by issue estoppel, and lamented the practice of lodging the same dispute in different courts in the region.

p. 2
03

Merits - budget and delineation of village units

Holding

The challenge on delineation and budget was misplaced

Reasoning

The Respondents produced the Bungoma County (Decentralised Units) Administration Act, 2015, gazetted on 27 September 2018, and a budget for the Department of Public Service Management for 2020/2021 which included emoluments for village administrators. This demonstrated that village units had been dealt with and a budget existed, rendering those grounds of the Petition misplaced.

p. 3
04

Merits - scheme of service

Holding

Absence of a scheme of service could not invalidate the advertisement or recruitment

Reasoning

The Court held that requiring a scheme of service before advertisement would make invalidity speculative; the lack of such a scheme could not render the recruitment advertisement unlawful. The judgment extract does not record any separate finding on the age-discrimination allegation.

p. 3

Legal principles established

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  • Lack of a scheme of service cannot invalidate an advertisement or recruitment process as to hold otherwise would be speculative
  • Relitigating issues already determined by a court of competent jurisdiction is caught by issue estoppel, a species of res judicata
  • A petitioner's persistent non-attendance and failure to file submissions exhibits lack of interest and warrants dismissal for failure to prosecute

Court orders

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  1. 1.The Petition be dismissed with costs to the 2nd and 4th Respondents

Authorities

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Legislation

  • Bungoma County (Decentralised Units) Administration Act(not specified); gazetted 27 September 2018

Cases cited (1)

  • Iddi Oniallah Muyonga & Ors v Elizabeth Wanyonyi & Ors
    Bungoma High Court Petition No. 9 of 2018
Jurisdiction invoked
Original constitutional petition jurisdiction (petition alleging unlawful county public service recruitment advertisement); no specific provision quoted in the extract

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, "John Wekesa Khaoya v Chairman, County Public Service Board of Bungoma & 3 others; County Assembly of Bungoma (Interested Party) [2021] KEELRC 1922 (KLR)", Case Analysis (2021). Petition No. 20 of 2020 (with associated Motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1922/eng@2021-03-31

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