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ELRCStruck OutPetition (ELRC, Kisii) filed 6th April 2023· [2023] KEELRC 2559 (KLR)

Nyangongo v Public Service Commission & another (Employment and Labour Relations Petition E005 of 2023) [2023] KEELRC 2559 (KLR)

Employment and Labour Relations Court
19 October 2023
HWHellen Wasilwa
5,492 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a teacher's challenge to PSC recruitment adverts because the same dispute was already before another court.

What this practically means

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Executive summary

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The petitioner, a TSC-employed trainer at Kisii National Polytechnic, petitioned challenging PSC advertisements of 28th and 29th March 2023 recruiting Technical and Vocational trainers. He sought declarations that the advert was unlawful, orders quashing and prohibiting it, a direction to TSC to advertise 1,300 vacancies, a career progression guideline, damages for violation of Articles 41 and 47, interest and costs. He argued PSC lacked mandate, which vests exclusively in TSC under Article 237, and that the adverts ignored TVET Act registration requirements and a prior judgment quashing Circular No. 17 of 2018. PSC opposed, arguing it acted under Article 234 and section 37 of the Public Service Act merely advertising on behalf of TVET Boards and Councils, which are the recruiting authorities and were wrongly left out; it also challenged the petitioner's locus, pleaded res judicata and abuse of process given other pending suits. TSC denied involvement in the advert. The court found the petitioner had locus, being personally affected as one of the trainers transferred from TSC, and Article 22 permits individual enforcement of Bill of Rights. However, on res judicata, the court found the legality of Circular No. 17 of 2018 and subsequent PSC actions had been litigated before courts of concurrent jurisdiction, with Ongaya J's stay order of 14th March 2019 still in force and never lifted, so the court declined to delve into the merits and struck out the petition. No order of costs was made.

Key legal issues

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01

Locus standi of the petitioner

Holding

The petitioner has locus; he is personally affected as a trainer transferred from TSC, and Article 22 permits enforcement of Bill of Rights by an individual

Reasoning

The respondents relied on the Cheruiyot decision to argue the petitioner lacked a direct, demonstrable interest. The court found the advertisement directly affected him as an individual teacher whose services were transferred from TSC to PSC, and that Article 22(1) and (2) confers standing on any person, including one acting in the public interest.

p. 10
02

Res judicata / abuse of process

Holding

The petition is res judicata; the legality of Circular No. 17 of 2018 and subsequent PSC actions have been litigated and are the subject of stay orders pending appeal (Ongaya J order of 14/3/2019 never lifted)

Reasoning

The court noted the consent order keeping in force the stay of Abuodha J's judgment quashing Circular No. 17 of 2018, and that no order lifting the stay was shown. The PSC adverts flow from the same circular. To avoid duplicating efforts and to await the Court of Appeal's determination, the court declined to delve into the merits.

p. 11

Legal principles established

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  • An individual may institute constitutional proceedings claiming that a right in the Bill of Rights has been denied, violated or infringed or is threatened, including in his own interest or in the public interest, under Article 22
  • Where issues raised have been litigated before courts of concurrent jurisdiction and are subject of subsisting stay orders pending appeal, the subsequent petition is res judicata and the court should decline to determine it

Court orders

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  1. 1.The petition is struck out
  2. 2.No order of costs

Authorities

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Legislation

  • Constitution of KenyaArticles 2, 3, 10, 22, 23, 41, 47, 50, 156(4), 159, 165, 201(d), 234, 234(3)(c), 237, 258, 259
  • Teachers Service Commission Actsections 2, 20, 23-32
  • Technical and Vocational Education and Training Act, No. 29 of 2013sections 2, 17(1-2), 22(b), 23, 25, 26(1)(a)&(c), (2), 28, 29(1)/(l)/(m)
  • Public Service Commission Act, 2017section 37
  • Public Service Actsection 55
  • Employment Act, 2007sections 9 and 10
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 3(8), 6, 15(1)
  • Employment and Labour Relations Court (Procedure) RulesRule 17(9)
  • Legal Notice No. 7 of 2018

Cases cited (4)

  • Public Service Commission & 4 Others v Cheruiyot & 32 others (Civil Appeal 199 & 139 of 2017) (Consolidated) [2022] eKLR
    Civil Appeal 199 & 139 of 2017 (Consolidated) [2022] eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others, Civil Appeal No. 290 of 2012 [2013] eKLR
    Civil Appeal No. 290 of 2012 [2013] eKLR
  • Rose Nyambura Chege and 4 others v Teachers Service Commission and 2 others [2021] eKLR
    [2021] eKLR
  • Evans Morara Nyangongo & 2 others v The CS-Ministry of Education and 6 others
Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution (enforcement of Bill of Rights); Employment and Labour Relations Court jurisdiction

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 Public Service Commission & another (Employment and Labour Relations Petition E005 of 2023) [2023] KEELRC 2559 (KLR)", Case Analysis (2023). Petition (ELRC, Kisii) filed 6th April 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2559/eng@2023-10-19

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