Adera v Komen, Ndiba, Mbijiwe & 3 others (Petition E213 of 2026) [2026] KEELRC 2092 (KLR) (21 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **PETITION NO. E213 OF 2026** *(Before Hon. Justice Dr. Jacob Gakeri)* **JOHNSON OTIENO ADERA…...................................PETITIONER** **VERSUS** **DR. HARON KOMEN, MS. JANE NDIBA, DR. JACOB MBIJIWE…………………………………………………..1ST RESPONDENT** **THE BOARD OF DIRECTORS OF THE ANTI-COUNTERFEIT AUTHORITY……………………………………………..2ND RESPONDENT** **ANTI-COUNTERFEIT AUTHORITY………………..3RD RESPONDENT** **DR. ROBI M. KING’A, PhD, THE EXECUTIVE DIRECTOR OF THE ANIT-COUNTERFEIT AUTHORITY……………….4TH RESPONDENT** **RULING** The Petitioner instituted the instant Petition on 26th June 2026 seeking various orders touching on the Report dated 9th June 2026 and a Notice to show cause. He also sought a permanent injunction to restrain the Respondents or anyone acting on their behalf from instituting any proceedings, or from carrying out disciplinary proceedings against the petitioner in any manner on the basis the 3rd Respondent’s interdiction letter dated 15th April, 2026, the 1st Respondent’s Report dated 9th June 2026 and the 3rd and 4th Respondent’s Notice to show cause dated 11th June, 2026. Filed contemporaneously, under Certificate of Urgency was a Notice of Motion dated 24th June 2026 seeking Certification of Urgency and interim conservatory orders staying implementation of the 1st Respondent’s Report dated 9th June 2026, the 4th Respondent’s Notice to show cause dated 11th June 2026 and the 4th Respondent’s letter dated 15th April 2026 (indicated incorrect as 2016) pending the hearing of the Notice of Motion and the Petition. The Respondents filed a Replying Affidavit sworn by Hon. Nelson Gaichunie, Chairperson of the Respondent’s Board of Directors. The affiant accused the applicant for *inter alia* the suit being *res judicata/* estoppel, prematurity of the suit, non-disclosure and abuse of court process/forum shopping. When the matter came up 26th June 2026 for directions, the court directed service and response within 3 days. The petitioner had right of reply and *inter partes* hearing on 2nd July 2026 when Mr. Olaibon for the Respondent’s informed the court that he had filed a Notice of Preliminary Objection and sought directions. Mr. Kenyatta for the Petitioner indicated that he was aware of the Preliminary Objection and intended to argue both together and sought prayer No. 2. The court issued directions on responses and filing and exchange of submissions in respect of the Preliminary Objection and as ruling on 21st July, 2026. The 1st, 2nd, 3rd and 4th Respondent’s Notice of Preliminary Objection dated 1st July 2026 in opposition to the Notice of Motion and Petition dated 24th June, 2026 is based on the premises that the suit was *Res judicata* by dint of Section 7 of the Civil Procedure Act. That the Applicants disciplinary proceedings the principal issue herein was raised and determined in ELRC JR No. E089 of 2026 and Machakos ELRC CAUSE No. E025 of 2026 (contempt of court Application). **Respondent’s Submissions** As to whether the instant Notice of Preliminary Objection is merited counsel relied on the sentiments of the court in **John Florence Maritime Services Ltd & another v Cabinet Secretary for Transport and Infrastructure & 3 others (2021**) KTSC 39 (KLR) on the objective and purposes of *res judicata* as was the decision in **Independent Electoral & Boundaries Commission v Maina Kiai & 5 others (2017) eKLR** to urge that the elements of *Res judicata* had been met in that the parties were the substantially the same. Reliance was also placed on **E.T.V Attorney General & another (2012) eKLR.** Counsel further submitted that the issues were identical citing the Respondent’s Human Resource Policy and Procedures Manual and the Ruling on **Republic v Anti-Counterfeit Authority *ex parte* Johnson Otieno Adera ELRC JR No. E0891 of 2025** delivered on 28th March 2026. Counsel further urged that the contempt Ruling on 15th May 2026 affirmed that the Respondents had authority to issue the interdiction letter and the disciplinary process against the Petitioner/Applicant was valid. Counsel submitted that the decisions relied upon were made by courts of competent jurisdiction and the court had no jurisdiction to entertain the instant petition. Reliance was placed on **Owners of Motor Vessel-Lillian S” v Caltex Oil (Kenya) Ltd (1989) eKLR** to underscore the foundational nature of jurisdiction in the administration of justice. The Respondent did not file submissions within the timelines agreed upon in court on 2nd July, 2026. It is trite that whenever a Preliminary Objection is raised, it ought to be disposed of at the earliest possible instance owing to its potential to dispose of the suit at that stage. It is trite law that since *res judicata* is a principle of law, the Respondent’s Notice of Preliminary Objection meets the threshold in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696.** In **Attorney General & another v Githinji & another (2016) KECA 817 (KLR),** the Court of Appeal held: *“The test to be applied in determining whether the appellant’s Preliminary Objection met the threshold or not is what Sir Charles Newbold set out above in the* ***Mukisa Case*** *(Supra). This is first the Preliminary Objection raises a pure point of law, second that there is demonstration that all the facts pleaded by the other side are correct; and the other side are correct; and third that there is no fact that needs to be ascertained.”* In **Mwangi & 32 others v Baringo County Public Service Board (2023) KECA 1380 (KLR),** the Court of Appeal stated: *“We begin by stating that indeed, res judicata is a doctrine of general application and is therefore applicable to Judicial Review. In this regard, the court stated in the case of* ***Africa Oil Turkana Ltd (Previously known as Turkana Drilling Consortium Ltd) & 3 others v Permanent Secretary Ministry of Energy & 17 others (2017) eKLR*** *relied on by the Respondent thus:”* Finally, in **Kioko v Attorney General (2026) KECA 500 (KLR)** the Court of Appeal at Mombasa held; *“Res judicata is a legal doctrine shield that precludes continued litigation after final order on the same case, the same issues between the same parties…”* The principle of *res judicata* is statutorily anchored in section 7 of the Civil Procedure Act which provides as follows: *“No courts 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.”* In **IEBC v Maina Kiai & 5 others** **(Supra),** the Court of Appeal held: *“Thus, for the bar res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied as they are not in disjunctive but conjunctive terms:* 1. *The suit or issue was directly and substantially in issue in the former suit.* 2. *The former suit was between the same parties or parties under whom they or any of them claim.* 3. *Those parties were litigating under the same title.* 4. *The issue was heard and finally determined in the former suit.* 5. *The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”* Needless to emphasize, *res judicata* is a jurisdictional issue and thus bars the court from proceeding with the suit before it, if it holds that the same is *res judicata* a former suit. See also **Karia & another v Attorney General (2005) IEA 83, Henderson v Henderson (1843) 67 ER 313 and Kamunye & others v Pioneer General Assurance Society Ltd (1971) EA 263.** The Respondents contention is that the instant Application and Petition dated 24th June 2026 are *res judicata* NAIROBI ELRC JR No. E089 of 2025 and MACHAKOS ELRC CAUSE No. E025 OF 2026. In NAIROBI ELRC JR No. E089 of 2025, the Applicant sought an exception from exhausting internal dispute resolution mechanisms under Section 9(4) of the Fair Administrative Action Act, Declaration that the Respondents Human Resource Policy and Procedures Manual was illegal and unconstitutional, declaration that the 1st Respondent had no disciplinary control or authority over the applicant, an order that the 1st Respondent’s letter of 25th August 2025 did not constitute a disciplinary decision capable of being appealed against at the Public Service Commission (PSC) and setting it aside and it be expunged from the applicants record. Clearly, the focus of the application was the letter dated 25th August 2025 and the Respondent’s Human Resource Policy and Procedures Manual. Since the Judicial Review application failed, the attendant issues were not determined finally save for the applicability of the Respondent’s Human Resource Policy and Procedures Manual to the applicant. Secondly, MACHAKO, ELRC CAUSE NO. E025 of 2026, the Applicant sought Interim Orders to stay the Respondent’s letter 10th February 2026 pending *inter partes* hearing and final determination of the claim. The letter in question placed the applicant on interdiction. The applicant averred that the letter was based on instruments not approved by the Public Service Commission and he had not consented to them and were not part of his contract. The applicant also challenged the legality of the composition of the Investigating Committee, that Jane Wanjiru Ndiba was unqualified to sit in the committee on account of being a State Counsel Deputy Solicitor General, a representative of the Attorney General on the Respondents Board of Directors. The trial court delivered a ruling on 9th April 2026 granting interim reliefs. A subsequent Motion dated 16th April 2026 on contempt of court on an interdiction letter dated 15th April 2026 was dismissed on the premises that the Respondents had the authority to issue the interdiction letter and it had not been done in contempt of court. At paragraph 107 of the Ruling dated 15th May 2026, the trial judge held: *“The Respondents have averred that they did not commit any contempt of court. They have alluded to the fact that vide letter dated 6th March 2026 the PSC gave them a window of 6 months to use the existing human resource instruments pending further directions. The letter in question has been exhibited before this court by the Respondents and so the fresh interdiction letter was based on this 6-window period.* *I have confirmed the existence of the said letter and I find that indeed the Respondent have the proper instruments to issue the interdiction letter…”* The court notes that MACHAKOS ELRC CAUSE NO. E025 of 2026 was pending hearing and determination. By its ruling delivered on 9th May 2026, the court stayed the Respondents interdiction letter dated 10th February 2026 pending the hearing and determination of the claim. The court further held: *“It is also true that this court will not normally interfere with an internal disciplinary process between an employer and employee and only interfere to put the correct process on course. In the circumstances whilst halting the existing process on course the respondents can only initiate a proper disciplinary process if need be based on proper procedures and the law. Costs in the cause.”* Court records revealed that after the ruling, the respondents issued a fresh interdiction letter dated 15th April 2026 after revoking the previous one and reinstated the Applicant with immediate effect, a fact he had not disclosed. As adverted to above, the court found that the interdiction letter dated 15th April 2026 was valid. The instant petition is still challenging the interdiction letter dated 15th May 2026 (on which a finding has already been made), the Notice to show cause and the Investigation Report dated 9th June 2026. The Petitioner is challenging the disciplinary process against him and all the three cases he has filed namely; 1. NAIROBI ELRC JR NO. E089 OF 2025. 2. MACAKOS ELRC CAUSE NO. E025 OF 2026 3. NAIROBI ELRC PET.NO. E213 OF 2026. Commenced on 18th December, 2025, 16th February, 2026 and 26th June 2026 respectively relate to the same issue. Although the court is satisfied that virtually all the requirements of the doctrine of *res judicata* have been met, the fact that MACHAKOS ELRC CASUE NO. E025 OF 2026 is pending hearing and determination is significant and the issues in the instant Petition ought to have been litigated in that suit where the process was on-going. Having perused the pleadings in the three suits, it is discernible that the Petitioner/Applicant is forum shopping and litigating by instalments practices which the court does not countenance as they constitute abuse of court process and have the potential of embarrassing the court in the event of conflicting decisions. Since the subject matter of both suits is the Petitioner/Applicant’s disciplinary proceedings, the court is not persuaded that the two suits ought to proceed simultaneously as this would be neither efficient nor effective utilization of judicial time. One of the suits must give way to the other for hearing and final determination of all the issues arising therefrom. Relatedly, since the determination of MACHAKOS ELRC CAUSE NO. E025 OF 2026 will impact on NAIROBI ELRC PET NO. E213 OF 2026 in light of the concatenation of the events pleaded, the requirement that “the issues have been heard and determined finally” is not satisfied in the instant case. In the court’s view, NAIROBI ELRC PET. NO. E213 OF 2026 is *sub judice* MACHAKOS ELRC CAUSE No. E025 of 2026 by dint of Section 6 of the Civil Procedure Act which provides; *“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties whom they or any of them claim, litigating under the same title, where such suit or proceedings is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed”* In his Supporting Affidavit sworn on 24th June 2026, the Petitioner/Applicant made no reference to there being another case at MACHAKOS on related issues or attach attendant pleadings or the rulings delivered on the matter so far, which does not bode well with interim orders. The upshot of the foregoing is that the instant Petition NAIROBI ELRC PET NO. E213 of 2026 is hereby stayed pending the hearing and determination of MACHAKOS ELRC CAUSE NO. E025 of 2026 and the *status quo* orders granted on 2nd July 2026 are discharged. Orders accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21ST JULY, 2026.** **DR. JACOB GAKERI** **JUDGE** **ORDER** **In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.** **DR. JACOB GAKERI** **JUDGE**