Otieno George & another v Speaker, Homabay County Assembly & 4 others [2022] KEELRC 419 (KLR)

High Court of Kenya

30 March 2022

CBChristine N. Baari

1,114 words in judgment

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The bottom line

Kenya's High Court struck out a Homa Bay petition because it re-litigated issues already decided, even though different people filed it.

What this practically means

Executive summary

The 3rd and 4th Respondents, through Obiero & Associates Advocates, raised a preliminary objection that Petition No. E065 of 2021 was res judicata under Section 7 of the Civil Procedure Act, being directly and substantially in issue in Petition No. E027 of 2021, which itself had been struck out as res judicata against JR. No. 5 of 2020 - suits brought by the same parties against the same Respondents concerning the constitution of the Homa Bay County Assembly Service Board. The Petitioners, through a replying affidavit sworn by Asman Suleiman, contended that the parties and prayers differed, and that while the earlier petition concerned the legality of the Board's constitution, the present one concerned the appointment of a new Clerk by an illegally constituted Board. The Petitioners and the 1st and 2nd Respondents were absent at the hearing despite service. Adopting the five-element test in Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others, the court found that although the petitioners differed, the issues - the capacity of the 3rd and 4th Respondents to sit on the Board - were identical, had been heard and finally determined by a competent court, and that the petition, though ostensibly about the Clerk's recruitment, made no reference to it in the main petition nor sought orders against it. The petition was declared res judicata and struck out with costs to the Respondents.

Key legal issues

Whether the petition is res judicata under Section 7 of the Civil Procedure Act

Holding

Yes; the petition is res judicata as the issues were heard and finally determined in JR. No. 5 of 2020 and Petition No. E027 of 2021 (itself declared res judicata on the basis of JR. No. 5 of 2020) between the same parties litigating under the same title

Reasoning

The court applied the five-element test from IEBC v Maina Kiai: same parties, same title, issues directly and substantially in issue, heard and finally determined, and a competent court. The petition, though framed around recruitment of a new Clerk, contained no reference to that recruitment in the main petition and sought the same orders as the former suits. The court held the petition offends Section 7 and struck it out with costs.

p. 2

Whether the difference in petitioners defeats res judicata

Holding

No; the issues being the same, the difference in petitioners does not avoid the bar

Reasoning

Counsel for the 3rd and 4th Respondents argued, and the court accepted, that although the petitioners differ, the issues concerning the capacity of the 3rd and 4th Respondents to sit on the Board were identical to those in the earlier petitions. Petition No. E027 of 2021 had already been struck out as res judicata against JR. No. 5 of 2020, which was decided by a competent court, so the matters were heard and finally determined.

p. 2

Legal principles established

For res judicata to be raised and upheld, five elements must be satisfied: the issue was directly and substantially in issue in the former suit; the parties were the same or claiming under them; litigating under the same title; the issue was heard and finally determined; and by a court competent to try the subsequent suit
The identity of the individual petitioners is not decisive where the issues raised were directly and substantially in issue in former suits between the same parties

Court orders

1.Petition No. E065 of 2021 declared res judicata for offending Section 7 of the Civil Procedure Act
2.The Petition struck out
3.Costs to the Respondents

Authorities

Legislation

Civil Procedure ActSection 7

Cases cited (2)

Pangaea Holdings LLC & another v Hacienda Development Ltd & 2 others
[2020] eKLR
Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others
(2017) eKLR

Jurisdiction invoked: Original constitutional petition jurisdiction; preliminary objection based on Section 7 of the Civil Procedure Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Otieno George & another v Speaker, Homabay County Assembly & 4 others [2022] KEELRC 419 (KLR)", Case Analysis (2022). Petition No. E065 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/419/eng@2022-03-30

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