[2023] KEELRC 83 (KLR)
The court found that the respondents' application to dismiss the petition was based on grounds that had already been raised and determined in a previous application. The court had previously ruled on the merits of a similar application and dismissed it. Therefore, the present application was res judicata and...
Source-derived case information.
- Citation
- [2023] KEELRC 83 (KLR)
- Parties
- Applicant: Joseph Amwoma; Respondent: Amos Kimwomi Nyaribo Governor, Nyamira County; Respondent: County Government Of Nyamira; Respondent: Nyamira County Public Service Board
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 012 of 2022
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection/application to Dismiss
- Outcome
- motion dismissed with costs to be paid personally by the respondents' advocate
- Judges
- S Radido
- Legal Topics
- Termination of Employment, Public Service Employment, Res Judicata, Constitutional Rights Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Amwoma
Applicant
Amos Kimwomi Nyaribo Governor, Nyamira County
Respondent
County Government Of Nyamira
Respondent
Nyamira County Public Service Board
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection/application to Dismiss
Legal Issues
- 1 Whether the petition discloses a reasonable cause of action against the respondents.
- 2 Whether the application to dismiss the petition is res judicata.
- 3 Whether the respondents' application constitutes an abuse of court process.
Ratio Decidendi
The court found that the respondents' application to dismiss the petition was based on grounds that had already been raised and determined in a previous application. The court had previously ruled on the merits of a similar application and dismissed it. Therefore, the present application was res judicata and constituted an abuse of the court process. The court declined to revisit the issue and dismissed the motion, ordering that costs be paid personally by the respondents' advocate.
Court Disposition
motion dismissed with costs to be paid personally by the respondents' advocate
Orders
- The respondents' motion dated November 23, 2022 is dismissed.
- Costs of the application to be paid personally by the respondents' advocate on record.
Full Case Text
Judgment text and source record
28 paragraphs
Amwoma v Nyaribo Governor, Nyamira County & 2 others (Petition 012 of 2022) [2023] KEELRC 83 (KLR) (25 January 2023) (Ruling)
Neutral citation: [2023] KEELRC 83 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Petition 012 of 2022
S Radido, J
January 25, 2023
IN THE MATTER OF ARTICLES 1, 2, 3(1), 10, 19, 21, 22, 27(1),(2) & (3), 28, 41(1), 47(1) & (2), 48, 50(1), 165(3)(B) AND 258(1) OF THE CONSTITUTION OF KENYAANDIN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS PURSUANT TO ARTICLES 27(1),(2) & (3), 28, 41(1), 47(1) AND 50(1) OF THE CONSTITUTION OF KENYAANDIN THE MATTER OF RULES 4, 10, 11, 13 AND 20 OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES, 2013ANDIN THE MATTER OF SECTION 31 OF THE COUNTY GOVERNMENTS ACT, NO. 17 OF 2012 LAWS OF KENYAANDIN THE MATTER OF SECTION 45 OF THE EMPLOYMENT ACTBETWEEN
Between
Joseph Amwoma
Petitioner
and
Amos Kimwomi Nyaribo Governor, Nyamira County
1st Respondent
County Government Of Nyamira
2nd Respondent
Nyamira County Public Service Board
3rd Respondent
Ruling
1. For determination is a Motion dated November 23, 2022 by the Respondents seeking orders:(1)That this Honourable Court be pleased to dismiss the Petitioner’s Claim/Petition as it discloses no reasonable cause of action.(2)That the costs of this suit and application be borne by the Petitioner.
2. The grounds in support of the Motion were that the Court had in a Ruling delivered on March 25, 2021 held that the Petitioner’s employment was tied to the tenure of the appointing Governor and consequently there was no contractual relationship with the 1st Respondent who took office upon the demise of the appointing Governor.
3. The Court gave directions on the application on November 24, 2022. None of the parties complied with the directions within the set timelines.
4. The Court has looked at the record, Motion and affidavit in support.
5. The Respondents lodged an application dated April 21, 2021 seeking similar orders to the ones now under examination.
6. The Court sitting in Kericho heard arguments on the application and dismissed it in a Ruling on the merits delivered on September 21, 2021.
7. This Court, therefore declines the invitation by the Respondents to revisit the issue. The application is not only an abuse of the court process but res judicata.
8. The Motion is dismissed with costs to be paid personally by the Respondents’ advocate on record.
DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 25TH DAY OF JANUARY 2023. Radido Stephen, MCIArbJudgeAppearancesFor Petitioner Mwae & Associates AdvocatesFor Respondents Ligunya Sande & AssociatesCourt Assistant Chrispo Aura