[2023] KEELRC 99 (KLR)
The court found that the issue of whether the petitioners' employment was tied to the tenure of the appointing governor had already been conclusively determined by the Employment and Labour Relations Court sitting in Kericho. The respondents' application sought orders identical to those previously dismissed on the...
Source-derived case information.
- Citation
- [2023] KEELRC 99 (KLR)
- Parties
- Applicant: Douglas Oseko Bosire; Applicant: John Moenga Omanwa; Applicant: Peter Muga Omwanza; Applicant: Zablon Oero Onchiri; Respondent: H.E. Amos Kimwomi Nyaribo; Respondent: County Government of Nyamira; Respondent: County Assembly of Nyamira; Respondent: Hon Attorney General; Respondent: Gladys Momanyi; Respondent: M.S. Emily Moraa Ongaga; Respondent: Thomas Nyariki; Respondent: Jones Omwenga; Respondent: Samuel Maiko
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 010 of 2022
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection/application to Dismiss
- Outcome
- Application dismissed as res judicata and abuse of court process.
- Judges
- S Radido
- Legal Topics
- County Executive Appointments, Termination of Employment, Res Judicata, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Douglas Oseko Bosire
Applicant
John Moenga Omanwa
Applicant
Peter Muga Omwanza
Applicant
Zablon Oero Onchiri
Applicant
H.E. Amos Kimwomi Nyaribo
Respondent
County Government of Nyamira
Respondent
County Assembly of Nyamira
Respondent
Hon Attorney General
Respondent
Gladys Momanyi
Respondent
M.S. Emily Moraa Ongaga
Respondent
Thomas Nyariki
Respondent
Jones Omwenga
Respondent
Samuel Maiko
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection/application to Dismiss
Legal Issues
- 1 Whether the petitioners' employment as County Executive Committee members was tied to the tenure of the appointing governor.
- 2 Whether the respondents' application to dismiss the petition was res judicata and an abuse of court process.
- 3 Whether the petitioners had a reasonable cause of action against the new governor.
Ratio Decidendi
The court found that the issue of whether the petitioners' employment was tied to the tenure of the appointing governor had already been conclusively determined by the Employment and Labour Relations Court sitting in Kericho. The respondents' application sought orders identical to those previously dismissed on the merits. The court held that entertaining the application would amount to revisiting a matter already adjudicated, constituting an abuse of court process and falling squarely within the doctrine of res judicata. Consequently, the application was dismissed with costs to be borne personally by the respondents' advocate.
Court Disposition
Application dismissed as res judicata and abuse of court process.
Orders
- The respondents' application dated 23 November 2022 is dismissed.
- Costs to be paid personally by the respondents' advocate on record.
Full Case Text
Judgment text and source record
51 paragraphs
Bosire & 4 others v Nyaribo & 8 others (Petition 010 of 2022) [2023] KEELRC 99 (KLR) (25 January 2023) (Ruling)
Neutral citation: [2023] KEELRC 99 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Petition 010 of 2022
S Radido, J
January 25, 2023
IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS PURSUANT TO ARTICLES 2, 3, 6, 10, 19, 20, 21, 22, 2, 47, 48, 159, 162, 179(7), 182(2) & (3) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTIONS 30(d) AND 35(3) OF THE COUNTY GOVERNMENTS ACT
Between
Douglas Oseko Bosire
1st Petitioner
John Moenga Omanwa
2nd Petitioner
John Moenga Omanwa
3rd Petitioner
Peter Muga Omwanza
4th Petitioner
Zablon Oero Onchiri
5th Petitioner
and
H.E. Amos Kimwomi Nyaribo Governor, Nyamira County
1st Respondent
County Government of Nyamira
2nd Respondent
County Assembly of Nyamira
3rd Respondent
Hon Attorney General
4th Respondent
Gladys Momanyi
5th Respondent
M.S. Emily Moraa Ongaga
6th Respondent
Thomas Nyariki
7th Respondent
Jones Omwenga
8th Respondent
Samuel Maiko
9th Respondent
Ruling
1. The petitioners were appointed as County Executive Committee members, Nyamira. The appointing Governor, however, died before the end of his term of office. The then Deputy Governor (the 1st respondent) herein assumed office and appointed new County Executive Committee members.
2. The petitioners sued (Kericho) to quash the appointments and to be allowed to continue in office.
3. The court in kericho dealt with various applications before transferring the petition to this court.
4. On 23 November 2022, the respondents filed a motion seeking orders:(1)That this honourable court be pleased to dismiss the petitioners’ claim/petition as it discloses no reasonable cause of action.(2)That the costs of this suit and application be borne by the petitioner.
5. The grounds in support of the motion were that the court in Kericho had, in a ruling delivered on 21 September 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.
6. The court gave directions on the application on 24 November 2022. None of the parties complied with the directions within the set timelines.
7. The court has looked at the record, motion and affidavit in support.
8. The respondents lodged an application dated 21 April 2021 seeking similar orders to the ones now under examination.
9. The court sitting in Kericho heard arguments on the application and dismissed it in a ruling on the merits delivered on 21 September 2021.
10. This court, therefore, declines the respondents’ invitation to revisit the issue. The application is not only an abuse of the court process but res judicata.
11. 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 Wamuyu Munga & Associates AdvocateFor Respondents Ligunya Sande & AssociatesCourt Assistant Chrispo Aura