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ELRCPartially AllowedPetition No 35 of 2022· [2023] KEELRC 1338 (KLR)

Mohamud v Independent Electoral and Boundaries Commission & 2 others (Petition 35 of 2022) [2023] KEELRC 1338 (KLR)

Employment and Labour Relations Court of Kenya
25 May 2023
BOByram Ongaya
1,694 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A wrongly omitted Wajir nominated MCA won back pay from the Wajir County Government and Assembly for the ten months she sat unpaid.

What this practically means

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Executive summary

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The petitioner, Mariam Abdi Mohamud, was nominated by PNU to the gender top-up list for the Wajir County Assembly before the August 8, 2017 General Elections, but the IEBC omitted her name from Gazette Notice No 8380 of August 28, 2017. In earlier proceedings she obtained a judgment (Hon. Wanjala, December 14, 2017) declaring that Gazette Notice null and void; after an appeal was settled out of court, she was gazetted as a nominated MCA vide Gazette Notice No 6628 of July 6, 2018. The High Court (Ali Aroni J, ruling of February 10, 2022) transferred the petition to the Employment and Labour Relations Court. She sought declarations of violation of Articles 27, 28, 29(d), 40(3), 41(1) and 47(1) and of her legitimate expectation, general damages, accrued emoluments and costs. The IEBC admitted the facts but denied any employer-employee relationship and liability for emoluments, citing the consent-ordered gazettement. The 2nd and 3rd respondents did not participate. The Court held that allegations against the IEBC over the initial omission were res judicata, and that no basis was shown for the IEBC to pay post-gazettement emoluments. However, finding the petitioner had really been unfairly excluded and unpaid, the Court declared the 2nd and 3rd respondents jointly or severally liable to pay her accrued emoluments and quantifiable benefits from August 28, 2017 to July 6, 2018, holding that payment was the adequate monetary measure of her loss. The broader Bill of Rights violations and damages were refused. Each party was ordered to bear its own costs. Byram Ongaya, Principal Judge, delivered the judgment on May 25, 2023.

Key legal issues

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01

Res judicata against the 1st respondent

Holding

Allegations against the IEBC for failure to initially gazette the petitioner were res judicata; the claim against the 1st respondent collapses

Reasoning

The unlawfulness of the omission from the August 28, 2017 Gazette Notice had been litigated and determined in the earlier proceedings before Hon. Wanjala, culminating in the gazettement of July 6, 2018. The petitioner offered no justification why reliefs flowing from that failure were not pursued in that case. The same issue could therefore not be relitigated against the 1st respondent in this petition.

p. 4
02

Liability of the 2nd and 3rd respondents for accrued emoluments

Holding

The 2nd and 3rd respondents are jointly or severally liable to pay the petitioner accrued emoluments and quantifiable benefits from August 28, 2017 to July 6, 2018

Reasoning

The petitioner had really been unfairly excluded in the initial gazettement, and although she made only a blanket demand, the letter of September 25, 2019 to the Speaker went unanswered. The Court held that payment of the accrued emoluments for the period preceding her effective gazettement was the adequate and measurable remedy for the violation of her right to fair labour practices and fair remuneration.

p. 4
03

Alleged violation of the Bill of Rights by the 2nd and 3rd respondents

Holding

The petitioner failed to demonstrate how the 2nd and 3rd respondents were involved in the initial omission; the violations as alleged were not established

Reasoning

The petition did not show the involvement of the County Government and County Assembly of Wajir in the omission of the petitioner's name from the initial gazette notice, which was the 1st respondent's doing and had already been resolved in earlier proceedings. Consequently, the constitutional violation claims and general damages were not granted against them.

Legal principles established

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  • Where a prior suit determined the unlawfulness of an omission and flowed to a remedy, fresh allegations arising from the same omission are res judicata unless a bar in the earlier proceedings is established
  • Where an employee has been unfairly deprived of remuneration, the measure of the true loss in money terms is an adequate remedy

Court orders

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  1. 1.Declaration that the 2nd and 3rd respondents are jointly or severally liable to pay the petitioner her accrued and unpaid monthly emoluments and such other benefits that are quantifiable as due to her from August 28, 2017 to July 6, 2018
  2. 2.Each party to bear own costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(1) & (2), 27(1) & (2), 28, 29(d), 38(3)(c), 40(3), 41(1), 47(1), 90(2)(a)
  • Fair Administrative Action ActSection 4(1)
  • Employment ActSection 18

Cases cited (1)

  • Mariam Abdi Mohamed Versus IEBC and Another
    [2017] eKLR
Jurisdiction invoked
Jurisdiction conferred following the High Court (Ali Aroni J) ruling of February 10, 2022 finding the Employment and Labour Relations Court clothed with jurisdiction to determine the petition

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, "Mohamud v Independent Electoral and Boundaries Commission & 2 others (Petition 35 of 2022) [2023] KEELRC 1338 (KLR)", Case Analysis (2023). Petition No 35 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1338/eng@2023-05-25

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