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ELRCStruck OutPetition dated 27th March, 2024· [2024] KEELRC 2214 (KLR)

Onsomu v County Government of Nyamira & another (Petition E012 of 2024) [2024] KEELRC 2214 (KLR)

Employment and Labour Relations Court
19 September 2024
CBC. N. Baari
2,968 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Employment Court struck out a petition against Nyamira County's hiring because the same issues had already been decided in an earlier case.

What this practically means

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Executive summary

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This was a petition dated 27th March 2024 challenging recruitment exercises by the County Government of Nyamira and its County Public Service Board through advertisements of 9th March 2023 (358 vacancies), October 2023 (39 vacancies) and 14th December 2023 (8 vacancies). The Petitioner alleged the recruitments were undertaken without budgetary provision or County Assembly approval, in breach of the Public Finance Management Act, County Governments Act and the Constitution; that over 300 officers were expunged from the payroll; and that the wage bill exceeded the statutory 35% ceiling, citing Auditor-General figures of 57% of total revenue. Relief sought included declarations of unconstitutionality, conservatory orders staying further recruitment, and refunds of illegally paid wages. The Respondents filed a preliminary objection arguing the petition was res judicata, having been determined in Kisumu ELRC Petition No. 3 of 2023 (Vincent Mariita Omao v County Government of Nyamira & 4 others), and that it failed to plead with precision the constitutional violations alleged. The court framed three issues and, applying section 7 of the Civil Procedure Act, held that the instant petition raised substantially the same issues as the earlier petition, which was dismissed on the merits after the court had pronounced itself on the budget and wage bill questions. Holding that determination of the present petition would risk the court contradicting itself, the court struck out the petition in its entirety. On costs, noting the petition was public litigation, each party was ordered to bear their own costs. The merits of the petition were not reached.

Key legal issues

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01

Whether the petition is barred by res judicata

Holding

The petition is res judicata as it raises the same issues already heard and determined in Kisumu ELRC Petition No. 3 of 2023 (Vincent Mariita Omao v County Government of Nyamira & 4 others), which was dismissed on its merits

Reasoning

The instant petition concerns the same advertisements of 358 vacancies (9th March 2023), 39 vacancies (October 2023) and 8 vacancies (14th December 2023), budgetary provisions, wage bill ceilings and expunging of officers from the payroll. The earlier petition was dismissed on the merits and the court had already pronounced itself on the budget and wage bill issues, leaving nothing for this court to determine without the risk of contradiction.

p. 7
02

Whether the petition has merit

Holding

Not determined; the petition having been struck out as res judicata, the court did not reach the merits

Reasoning

The preliminary objection on res judicata succeeded, disposing of the petition in its entirety without any consideration of the alleged constitutional violations, budgetary irregularities or discrimination claims.

p. 7

Legal principles established

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  • For res judicata to be upheld, five elements must be satisfied: the matter was directly and substantially in issue in a former suit between the same parties litigating under the same title, heard and finally determined by a competent court
  • A constitutional petition must set out with precision the constitutional provisions violated and the manner of violation (Anarita Karimi Njeru threshold)

Court orders

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  1. 1.The Petitioner's petition dated 27th March, 2024 is found res judicata and is struck out in its entirety
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27(1),(2),(4),(5), 28, 41, 47(1)(2), 50(1), 201, 212, 227, 232, 236(b)
  • Public Finance Management Act
  • County Governments Act
  • Public Finance Management (County Governments) Regulations, 2015Regulation 25(1)(a-b)
  • Civil Procedure Act, 2010Section 7

Cases cited (4)

  • Anarita Karimi Njeru v Republic (No.1)
    [1979] 1 KLR 154
  • Mumo Matemu v Trusted Society of Human Rights Alliance
    Civil Appeal No.290 of 2012 [2013] eKLR
  • Vincent Mariita Omao v County Government of Nyamira & 4 Others
    Kisumu ELRC Petition No. 3 of 2023
  • Sella Rose Anyango v Attorney General and 2 Others
    [2021] eKLR
Jurisdiction invoked
Articles 27(1), (2), (4), (5), 28, 41, 47(1)(2), 50(1), 201, 212, 227, 232, 236(b) of the Constitution (petition alleging violations thereof)

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, "Onsomu v County Government of Nyamira & another (Petition E012 of 2024) [2024] KEELRC 2214 (KLR)", Case Analysis (2024). Petition dated 27th March, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2214/eng@2024-09-19

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