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ELRCStruck OutPetition (undated Notice of Motion filed December 15, 2022)· [2023] KEELRC 515 (KLR)

Nyangongo v Teachers Service Commission & 4 others (Employment and Labour Relations Petition E021 of 2022) [2023] KEELRC 515 (KLR)

Employment and Labour Relations Court
23 February 2023
HWHellen Wasilwa
3,131 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court (Hellen Wasilwa J, delivered virtually on February 23, 2023) determined an undated Notice of Motion filed December 15, 2022 by a TVET trainer at Kisii National Polytechnic, in person, under Rule 21(a) of the 2012 Constitution Petition Rules and provisions of the Civil Procedure Act. The applicant sought conservatory orders staying the Cabinet Secretary for Education's letter of November 22, 2022 inviting secret applications for re-designation to Vocational and Technical Education officers, and staying the transfer of payroll management services from TSC to PSC under Circular No 17 of 2018, plus priority hearing and costs. He argued that only TSC has constitutional mandate over teachers under Article 237, that the transfer breached the Employment Act, the TSC Act and natural justice, and that he suffered discrimination, loss of KUPPET membership and CBA benefits, and salary stoppage. The 1st Respondent (TSC), through Dr Julius O. Olayo's replying affidavit, showed the same issues were litigated in Nairobi ELRC Cause No 85 of 2018 consolidated with Petition No 97 of 2018, in which Abuodha J quashed the 2018 circular and consent orders of July 15, 2019 maintained the status quo, the file being closed on January 18, 2021. It submitted the suit offended Section 7 of the Civil Procedure Act, citing IEBC v Maina Kiai and Lal Chand v Radha Kishan. The applicant did not respond to the res judicata submission. The court found the application and the entire petition res judicata and struck it out with no order of costs.

Key legal issues

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01

Res judicata

Holding

The application and the entire petition are res judicata, having been litigated in ELRC Cause No 85 of 2018 consolidated with ELRC Petition No 97 of 2018, in which Abuodha J quashed the 2018 circular and consent orders preserved the status quo.

Reasoning

The 1st Respondent established, through the replying affidavit of Dr Julius O. Olayo, that the issues concerning Circular No 17 of 2018 and the transfer of TVET lecturers' services and payroll were litigated in the consolidated Nairobi ELRC matters, culminating in a judgment and consent orders, with the file marked closed on January 18, 2021. The applicant did not respond to the res judicata submission. The court therefore invoked Section 7 of the Civil Procedure Act and struck out the application and the petition.

p. 6
02

Effect of non-response to a res judicata submission

Holding

The applicant's failure to respond to the res judicata submission left the court free to find the petition res judicata.

Reasoning

The court noted that the applicant filed submissions addressing the validity of the TSC contract and the merits of the conservatory orders but did not answer the 1st Respondent's res judicata objection. That omission, combined with the documentary history of the prior litigation, meant the threshold issue was effectively conceded, and the court did not proceed to consider the merits or the test for conservatory orders.

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Legal principles established

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  • Where issues raised in a suit were previously litigated and determined by a court of concurrent jurisdiction, the subsequent suit is res judicata under Section 7 of the Civil Procedure Act and must be struck out.
  • The doctrine of res judicata is a complete estoppel against any suit that runs afoul of it, and cannot be circumvented even by consent of the parties.

Court orders

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  1. 1.The application and the entire petition are found res judicata and struck out
  2. 2.No order of costs

Authorities

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Legislation

  • Constitution of KenyaArticles 3, 10, 21, 22, 23(3), 25, 27, 28, 30, 31, 35, 41, 47, 48, 50, 53, 55, 159(2)(d)(e), 232, 234(3), 237
  • Civil Procedure ActSections 1A, 1B, 3A, 3B, 7 and 63(e)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012Rule 21(a)
  • Teachers Service Commission Act, 2012Section 166
  • Employment Act, 2007Sections 9 and 10
  • Contract ActSection 3
  • Labour Relations ActSection 4

Cases cited (7)

  • Katiba Institute v Judicial Service Commission and Attorney General
    Petition 128 of 2022
  • Margret Njeri Muiruri v Bank of Baroda Kenya ltd
    (2014) eKLR
  • Mark Otanga Atiende v Denis Aduor Aduor
    Civil Appeal No E013 of 2021
  • The Management committee of Makondo primary school and another v Uganda National Examination Board
    HC Civil Misc Application no 18 of 2010
  • Kenya Human Rights Commission and another v NGO Coordination Board and another
    (2018) eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 others
    [2017] eKLR
  • Lal Chand v Radha Kishan
    AIR 1977 SC 789
Jurisdiction invoked
Articles 3, 10, 21, 22, 23, 25, 27, 30, 35, 41, 47, 48, 50 and 159(2)(d), (e) of the Constitution; Rule 21(a) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012; Sections 1A, 1B, 3A, 3B & 63(e) of the Civil Procedure Act

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, "Nyangongo v Teachers Service Commission & 4 others (Employment and Labour Relations Petition E021 of 2022) [2023] KEELRC 515 (KLR)", Case Analysis (2023). Petition (undated Notice of Motion filed December 15, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/515/eng@2023-02-23

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