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ELRCDismissedPetition No. E002 of 2020· [2022] KEELRC 853 (KLR)

Barasa Kundu Nyukuri & 2 others v Governor of County Government of Bungoma & 7 others; County Assembly of Bungoma & 5 others (Interested Party) [2022] KEELRC 853 (KLR)

Environment and Land Court / High Court of Kenya at Bungoma
10 February 2022
JKJ. W. Keli
1,390 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The three petitioners, by a petition dated 10th November 2020 supported by Barasa Kundu Nyukuri's affidavit, challenged the advertisement, shortlisting, interview, recruitment and deployment of 236 village administrators by the County Government of Bungoma following an advertisement dated 2nd November 2020. They sought a declaration that the recruitment was illegal, irregular, null and void for want of an appropriate policy framework, regulations and adequate budgetary allocation, and an order barring further hiring until 453 casual workers of the former Local Authorities and over 400 current casual workers were confirmed as employees of the County Government on permanent and pensionable terms with payment of salary arrears. The petition was canvassed by written submissions after directions by Radido J, who later transferred the file. The court framed five issues, principally whether the petition was res judicata. Applying Section 7 of the Civil Procedure Act, the court found the petition raised the same or similar issues already heard and finally determined in John Wekesa Khaoya v Chairman, County Public Service Board of Bungoma, a decision arising from the same advertisement of 2nd November 2020. The court also noted that the recruitment exercise was complete and the 236 successful candidates had been appointed, rendering prayer 2 spent, and that it lacked jurisdiction over the challenge to recruitment of county officers. The petition and the accompanying motion applications were dismissed as without merit, res judicata and overtaken by events, with each party bearing its own costs.

Key legal issues

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01

Whether the petition is res judicata

Holding

The petition is res judicata as it challenges the same recruitment exercise under the same advertisement of 2nd November 2020 on substantially the same grounds as a decided petition by Radido J

Reasoning

The court found that the issues of delimitation of boundaries, budget and lack of scheme of service had already been judicially determined in John Khaoya v Chairman, County Public Service Board of Bungoma, which arose from the same advertisement. Section 7 of the Civil Procedure Act binds the court, and the petitioners' plea to have the matter determined on its own merits was rejected.

p. 3
02

Whether the court should entertain the substantive challenge to the recruitment of 236 village administrators

Holding

Prayer 2 of the petition is spent and the court found it has no jurisdiction over the challenge to recruitment of county officers; the petition is also overtaken by events

Reasoning

The court was informed, in a related recent case (Oliver Mukhebi and 28 others v County Public Service Board of Bungoma), that the impugned recruitment exercise is complete and the successful 236 candidates have been appointed. Consequently, the prayer seeking to stop the recruitment is spent and the petition is overtaken by events.

p. 2

Legal principles established

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  • Section 7 of the Civil Procedure Act bars litigation of matters directly and substantially in issue in a former suit between the same parties or those claiming under them, litigating under the same title, heard and finally decided by a competent court
  • Res judicata requires an earlier decision raising the same issues, a final judgment on the merits, and the same parties or parties in privity with the original parties

Court orders

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  1. 1.The Petition dated 10th November 2020 is dismissed together with the motion applications filed herein
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Constitution of Kenya, 2010Articles 1, 2, 3, 10, 22, 23, 27, 28, 33, 35, 43, 46, 47, 48, 50, 165, 174, 258, 259

Cases cited (4)

  • John Wekesa Khaoya -vs- Chairman, County Public Service Board of Bungoma & 3 others, County Assembly of Bungoma (interested party)
    (2021) eKLR
  • Joseph Khaoya -vs- The Chairman, County Public Service Board and others
    Petition E001 of 2020
  • Iddi Muyonga -vs- Elizabeth Wanyonyi
    Petition No. 9 of 2018
  • Oliver Mukhebi and 28 others -vs- County Public Service Board of Bungoma and County Government of Bungoma
    Petition E012 of 2021
Jurisdiction invoked
Articles 1, 2, 3, 10, 22, 23, 27, 28, 33, 35, 43, 46, 47, 48, 50, 165, 174, 258 and 259 of the Constitution of Kenya, 2010

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, "Barasa Kundu Nyukuri & 2 others v Governor of County Government of Bungoma & 7 others; County Assembly of Bungoma & 5 others (Interested Party) [2022] KEELRC 853 (KLR)", Case Analysis (2022). Petition No. E002 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/853/eng@2022-02-10

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