[2020] KEELRC 1916 (KLR)
The court found that the core issues regarding the recruitment process for the positions of Principal and Deputy Principal at Bomet University had already been determined in a previous petition (Petition No. 11 of 2019), and thus the present petition was barred by the doctrine of res judicata. The court further held...
Source-derived case information.
- Citation
- [2020] KEELRC 1916 (KLR)
- Parties
- Applicant: Prof. Cheruiyot Thomas Kimeli; Applicant: Prof. Joshua Kwonyike; Respondent: The Cabinet Secretary Ministry of Education; Respondent: The Hon. Attorney General; Respondent: The Public Service Commission; Respondent: Bomet University College Council; Respondent: Moi University Council; Respondent: Prof. Anne Kisaka Nangulu; Respondent: Prof. George Otieno
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Petition 14 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Merits
- Outcome
- petition dismissed with costs
- Judges
- NJ Abuodha, DI Wasike
- Legal Topics
- Unlawful Termination, Recruitment Process, Res Judicata, Constitutional Petition, Terminal Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Prof. Cheruiyot Thomas Kimeli
Applicant
Prof. Joshua Kwonyike
Applicant
The Cabinet Secretary Ministry of Education
Respondent
The Hon. Attorney General
Respondent
The Public Service Commission
Respondent
Bomet University College Council
Respondent
Moi University Council
Respondent
Prof. Anne Kisaka Nangulu
Respondent
Prof. George Otieno
Respondent
Procedural Posture
Constitutional Petition / Ruling on Merits
Legal Issues
- 1 Whether the recruitment process for Principal and Deputy Principal of Bomet University was conducted lawfully.
- 2 Whether the petitioners' claims for unpaid leave and terminal dues are properly before the court as a constitutional petition.
- 3 Whether the issues raised are res judicata.
Ratio Decidendi
The court found that the core issues regarding the recruitment process for the positions of Principal and Deputy Principal at Bomet University had already been determined in a previous petition (Petition No. 11 of 2019), and thus the present petition was barred by the doctrine of res judicata. The court further held that the claims for unpaid leave and terminal dues, while new, were not appropriate for determination through a constitutional petition and should have been pursued as ordinary employment claims. Consequently, the petition was found to lack merit and was dismissed with costs.
Court Disposition
petition dismissed with costs
Orders
- The petition is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT ELDORET
PETITION 14 OF 2019
PROF. CHERUIYOT THOMAS KIMELI................................................1STPETITIONER
PROF. JOSHUA KWONYIKE................................................................2NDPETITIONER
AND
THE CABINET SECRETARY MINISTRY OF EDUCATION ...............1STRESPONDENT
THE HON. ATTORNEY GENERAL.......................................................2NDRESPONDENT
THE PUBLIC SERVICE COMMISSION ............................................3RDRESPONDENT
BOMET UNIVERSITY COLLEGE COUNCIL....................................4THRESPONDENT
AND
MOI UNIVERSITY COUNCIL...................................................1STINTERESTED PARTY
PROF. ANNE KISAKA NANGULU............................................2NDINTERESTED PARTY
PROF. GEORGE OTIENO.........................................................3RDINTERESTED PARTY
RULING
1. On 5th? December, 2019, this court delivered a judgment in Petition Number 11 of 2019. In that petition the petitioner one Julius Singoei sought orders among others, the interdiction of appointments to the position of Principal and Deputy Principal of Bomet University. The petitioner faulted the appointment claiming several articles of the constitution as well as provisions of the Fair Administrative Actions Act were violated.
2. The petitioner projected himself as a public-spirited person committed to the observance of national values and tenets of governance.
3. The court considered that petition and the issues raised and became of the view that there was no evidence to support the alleged violations of the constitution and Fair Administrative Actions Act. The court was further of the view that the appointments were in conformity with the relevant statutes and human resource policy and manual governing the University.
4. The present petition has been brought by the two petitioners who were the persons holding the positions of Principal and Deputy Principal of the University in acting capacity. Their appointment was pending the recruitment through a competitive selection process of the substantive office holders. They both applied to be recruited to these positions when they were advertised. Unfortunately, they were not successful in the interviews.
5. The current petition while introducing new issues such as unlawful termination, non payment of leave and terminal dues, essentially concerns the process of recruitment of the Principal and Deputy Principal of Bomet University which was entertained and decided by the court in its judgment delivered on 5th? ? December, 2019.
6. The court therefore cannot entertain the same as that would be tantamount to sitting on appeal over the court’s own judgement. Save for claim for unpaid leave and terminal benefits the issues raised in the petition are res judicata and further the claim for unpaid leave and terminal dues ought to have been pursued as ordinary claims and not by way of a constitutional petition.
7. In conclusion the petition is found lacking in merit and hereby dismissed with costs.
8. It is so ordered
Dated at Nairobi this 23rd day of October, 2020
Abuodha Jorum Nelson
Judge
Delivered this 23rd day of October, 2020
Abuodha Jorum Nelson
Judge
In the presence of:-
…………………………………………………………for the Claimant and
……………………………………………………………for the Respondent.
Abuodha J. N.
Judge