Francis Awino v Dr Fred Moin Siyoi

Applicant’s Case 3. The Respondent stated that he is serving his second term as the Chief Executive Officer (CEO) of the Pharmacy & Poisons Board. He stated that his first term expired on 28/2/2023 after which he served in acting capacity prior to being confirmed for a new term of 4 years commencing 19/5/2023. 4. He deponed that a Petition was filed before the Employment and Labour Relations Court, being NRB ELRC Petition E077 of 2023- Dr. Magare Gikenyi Benjamin v Susan Nakhumicha & Others in which his tenure was being challenged on grounds that he was serving beyond his age of retirement among other grounds. The said judgment was annexed. 5. That the ELRC Court dismissed the said ground. That the Petitioner in the said case lodged an appeal, being Nairobi COACA E335 of 2024- Dr. Magare Gikenyi v Pharmacy & Poisons Board (PPB) & 15 Others which appeal is still pending hearing and determination thus the instant matter is barred by the doctrine of ‘issue estoppel’ and sub-judice. Petitioner’s Response 6. The Petitioner did not file any replying affidavit. He only filed submissions. Other Parties 7. The 1st and 2nd Interested parties did not file any response or submissions to the Application to strike out the Petition by the Respondent. Respondent/Applicant Submissions 8. The Respondent filed written submissions dated 15th April, 2025. The Respondent, through Malenya & Company Advocates, submitted at paragraph 26 of the ELRC judgment that was delivered on 23rd February, 2024 in ELRC Petition E077 of 2023, the Court among other issues, dealt with the issue that had been raised therein about the Respondent working past 60 years mandatory age of retirement and held that, the Respondent was by dint of a circular the Court had referenced, was entitled to seek to continue in office beyond the age of sixty years. 9. The Respondent thus contended that since the main issue in this Petition is the Respondent serving as CEO beyond the age of retirement, that matter has already been addressed in the ELRC judgment and the matter is still subject of an Appeal in COACA E335 of 2024 that is pending before the Court of Appeal. As such, the Respondent contended that this matter is barred by the doctrine of issue-based estoppel and sub judice rule. He thus prays that the Petition be struck out as it amounts to an attempt to relitigate the Petition. 10. The Respondent relied on various judicial authorities in support of these submissions. Counsel for the Respondent cited the case of George Kamau Kimani & 4 others v County Government of TransNzoia & Anor [2016] KECA 11 [KLR] that quoted with approval the case of Trade Bank Limited v LZ Engineering Construction Limited [2001] E.A. 266 on the definition of issue-based estoppel. Also relied on by the Respondent to buttress his submissions on the same point was the case of Supreme Court case- Petition 14, 14A, 14B & 14C of 2014 (consolidated) Communication Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR. 11. Further, the Respondent contended that since an Appeal has already been preferred and is presently pending before the Court of Appeal as against the findings of the ELC in on the issue of serving past the age of retirement, this is a live matter before that Court, that is, COA Civil Appeal Number E335 of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/624/eng@2026-01-29 2

page 2 of 7

2024 as also evidenced by the Memorandum of Appeal dated 30th April, 2024. As such, under Section 6 of the Civil Procedure Act, the instant Petition cannot stand as it is sub judice. To support this point, Counsel for the Respondent relied on the case of Sasenyi Multi-purpose Cooperative Society Ltd v Rukinga Ranching Company Limited [2024] KECA 180 [KLR]. 12. The Respondent thus urges that this Petition be struck out. Petitioner’s Submissions 13. The Petitioner submitted on the following issues: a. Whether the instant Petition is sub judice b. whether the present petition is barred by the doctrine of issue estoppel. c. Whether the Petition raises substantial constitutional questions that deserve a full hearing. d. Who should bear the costs of the Application. 14. The Petition argued that for sub-judice to apply, there are four essential elements, which must be fulfilled, namely: two or more suits must exist, the matter in issue must be directly and substantially be the same, the parties must be the same or litigating under the same title, the prior case must be pending before a competent court. 15. The Petitioner distinguished the present Petition by submitting that the parties in the ELRC case were different as the case involved Dr. Magare Gikenyi and the Pharmacy and Poisons Board yet in the instant case, the Petitioner is Francis Awino suing in public interest under Article 258 (2) (c ) of the Constitution. He relied on the case of Okiya Omtatah Okoiti v Attorney General & Anor [2015] eKLR to argue that a Petitioner acting in public interest cannot be bound by another litigant’s case or proceedings. 16. Further, he argued that the matter before the ELRC concerned itself with employment grievances which included- acting appointments and administrative compliance under the Public Service Commission Act as opposed to this Petition which broader and challenges fundamental constitutional violations, leadership failures and continued breach of public trust under Chapter Six of the Constitution, the Leadership and Integrity Act and the Anti-Corruption and Economic Crimes Act. Similar arguments were raised in regard in opposition to the issue-based estoppel asserting that Respondent cannot shield himself under estoppel when serious constitutional breaches are being perpetrated. He relied on the case of Kenya National Commission on Human Rights v Attorney General: Independent Electoral & Boundaries Commission (Interested Party) (2020) eKLR where he submitted was held that: “ Where the substratum, the prayers, and the legal foundation are different, sub-judice does not arise” 17. He among others submitted that the ELRC judgment did not address whether the Respondent’s continued stay in office undermined public confidence in State institutions, whether the Respondent violated Chapter Six obligations, Whether the actions complained of amount to abuse of public office or corruption. 18. The Petitioner contended that the pendency of an appeal does not automatically bring into effect the sub-judice rule, particularly, where independent constitutional claims are alleged to have been violated. He argued the Petition raises profound and weighty constitutional issues relating to abuse of office contrary to Article 75, violation of public service values under Article 232, discrimination and denial https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/624/eng@2026-01-29 3

page 3 of 7

of equal opportunity to the youth, mismanagement of public resources among others. He relied on the case of Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR. 19. He thus submitted that the Respondent’s notice of motion should be dismissed. Analysis and Determination 20. Having regard to the facts as deponed in the affidavit of the Respondent/Applicant and the submissions made in support of the Notice of Motion to strike out this Petition, this Court finds there is only one issue for determination that is raised by the Application , that is: Whether the instant Petition offends the principle of sub-judice or res judicata in view of the ELRC Petition E077 of 2023: Dr. Magare Gikenyi Benjamin V Hon. Susan NakhumichA & Others; and, Nairobi COACA E335 of 2024: DR Magare Gikenyi V Pharmacy and Poisons Board (PPP) & 15 others. 21. Res judicata doctrine is statutorily anchored under Section 7 of the Civil Procedure Act, CAP 21 which provides as follows: ‘No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.’ 22. Section 6 of the Civil Procedure Act enshrines the sub-judice rule, which prevents a court from trying any matter that is also directly and substantially in issue before another Court between the same parties. However, my view is that the primary contention of the Respondent/Applicant is that the issues raised in the instant Petition had been raised, litigated and concluded by the ELRC Court, after which an appeal against the ELRC decision was lodged in the Court of Appeal and it is on this basis that the Respondent/Applicant argues that the present case constitute sub-judice. In my view, the plea of sub judice comes as a contingent or secondary concern since if the plea of res-judicata succeeds, then subjudice based on an appeal arising from the original suit cannot stand on its own if res-judicata is not established in the original trial. On the other hand, if res-judicata is established, there would be no reason to even consider sub-judice on appeal as the matter would have rested. I will thus focus my attention on res-judicata. 23. The Supreme Court in Kenya Commercial Bank Limited vs. Muiri Coffee Estate Limited & another (2016) eKLR held that the doctrine of res judicata applies in all cases including constitutional petitions. The Court stated: “ (52) 24. Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights…” Similarly, in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2024] KEHC 6648 (KLR) the Court underscored thus: “ 54. The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/624/eng@2026-01-29 4

page 4 of 7

returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a Judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.” 25. A fundamental principle of res judicata is what is now referred to as the issue-based estoppel. This principle holds that issues determined in the former suit may not be raised again by a party or the representative of that party in the later suit even if that suit is different. The party or its representative are thus barred from reviving the issue. 26. In Mumira v Attorney General [2022] KEHC 271 (KLR); the Court distinguished between issuebased estoppel and cause of action estoppel as follows: “ 18. 27. In the United Kingdom, res judicata is known as cause of action estoppel or issue estoppel… (A distinction is made between “cause of action estoppel” and “issue estoppel”. In the first case— “the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter.” (Arnold v National Westminster Bank [1991] 2 AC 93 (HL) at 104.) In the second case— “a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue.” (Arnold at 105.) In Okiya Omutatah Vs Communication Authority of Kenya (2015) eKLR , a decision that both sides cited, the Court relied on the issue-based estoppel when it held thus: “ In my view, he sued the officials of the 1st Respondent so as to disguise the proper parties who were in the first Petition and that attempt cannot affect my conclusions above and help him evade the doctrine of res judicata on the main issue of digital migration which is the common thread running through all the Petitions as can be seen above. I shall repeat for emphasis that the said issue cannot be re-opened merely by re-introducing the rights of viewers to migrate and re-packaging it differently as a violation of the provisions of the Constitution and that of the Bill of Rights so as to prevaricate the principle of res judicata.” 28. If and when a decision is made in rem as to the constitutionality of a particular issue or process in a matter of public or national interest, that decision does not only apply the parties in that dispute or the judgement. 29. I have carefully studied the present Petition, particularly, the factual basis upon which the Petition is founded. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/624/eng@2026-01-29 5

page 5 of 7

Paragraph 6 of the Petition states: “The Petitioner states that the Respondent continues to occupy office of the Chief Executive Officer (CEO) of Kenya Pharmacy and Poisons Board and despite him having exceeded the retirement age more so at the time when the country is grappling with problems of huge youth unemployment. Paragraph 7: “The Respondent’s action has indeed gone averse the caution that the very promise of equal opportunity to every Kenyan child will be a mirage if the culture of recycling retirees continues unabated in public service.” Paragraph 8: “The Petitioner states that it is very sad that retiring civil servants have found a loophole to continue serving in public service under contract in what is openly an abuse of the provisions of the Public Service Act” Paragraph 9: “The Petitioner states the Respondent has since attained the age of retirement of 60 years but is nevertheless still in office and his employment terms are thus unknown.” Paragraph 17: “The Petitioner states that as a result of the Respondent’s unconstitutional stay in office, he has proceeded to deny other qualified Kenyans an opportunity to serve the country in the said capacity and the same fuels culture of recycling retirees…” 30. The prayers are also equally aligned with the theme of this Petition. They include: a declaration that the continued stay in office by the Respondent as the CEO of Pharmacy & Poisons Board is illegal, unlawful and therefore null and void, an order barring Cabinet Secretary, Ministry of Health and the Public Service Commission from entering into any new local agreement with the Respondent in his capacity as the Chief Executive officer of Pharmacy and Poisons Board, a declaration that it is an act of abuse and corruption for the Respondent to continue holding office as the Chief Executive Officer of the Pharmacy and Poisons Board, an order to the Public Service Commission to send the Respondent on compulsory leave pending substantive compulsory recruitment to fill the position, and so on. 31. The employment of the Respondent past the age of retirement forms the core of the instant Petition. The submission by the Petitioner that his Petition raises other broader constitutional questions is not supported by his own pleadings that are before the Court in that regard. 32. I also had a chance to read the ELRC Constitutional Petition E077 of 2023 – Dr. Benjamin Gikenyi J Benjamin V Hon. Susan Nakumicha & Others. In that case, prayer no. 8 was as follows: “ A declaration that the appointment of the 1st interested party on 27.02.2023 as the Registrar or CEO of the 2nd respondent in blatant disregard of the High Court Decree and subsequent ruling of the Court of Appeal; his failure in the appraisal performance by the 2nd to 7th interested parties and the mandatory retirement age of 60 years statutory rule and in the absence of competitive process together with the appointment of Dr. Jacinta Wasike as Acting Registrar or CEO of the 2nd respondent was invalid, null and void ab initio.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/624/eng@2026-01-29 6

page 6 of 7

33. The ELRC Court, in a matter where the Respondent in this case was the 1st Interested Party, went ahead and made the following finding regarding the employment of the 1st Interested Party: “ In the instant case per the 1st Interested Party replying affidavit, it has been shown that the Interested Party was in the 2nd Respondent’s board’s employment at all material times. The Court has found that by consent order exhibited, he continued in employment and by the standing circular he referred to was entitled to seek to continue in office beyond sixty years.” 34. The Court thus made a concrete finding regarding the Respondent’s continued stay in office despite attaining the retirement age of 60 years basing it on the existence of a certain circular that authorized the same. The legality and/or constitutionality of the said circular was not impugned by the Court now is a subject of a challenge in the instant Petition. 35. The issue of employment of the Respondent past the age of 60 years which is also the bedrock of the instant Petition is a matter that was conclusively adjudicated upon in the former Petition before the ELRC and a concrete finding made. The fact that the Petitioner is a different person does not permit him to relitigate the same issue by camoufiaging it as a different Petition. It is my finding that the instant Petition offends the doctrine of res judicata. 36. The Notice of Motion Application succeeds. The Petition is hereby dismissed. 37. Considering that it is public interest litigation, Each Party shall bear its own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH JANUARY, 2026. L N MUGAMBI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/624/eng@2026-01-29 7

page 7 of 7