[2022] KEHC 27060 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

CONSTITUTIONAL PETITION NO. E004 OF 2021

BETWEEN

EVANS OTIENO OLOO GOR..................................................................................PETITIONER

AND

COUNTY PUBLIC SERVICE BOARD OF HOMA BAY & 7 OTHERS..........RESPONDENTS

RULING

1. The respondents herein raised a preliminary objection dated 13th October, 2021 premised on the following grounds:

a) That the substance of the instant application and the petition is moot by dint of res judicata having been determined in Kisumu E&LR Petition No.004 of 2021.

b) That the petitioner/applicant lacks locus standi to institute these proceedings and the same ought to be dismissed.

c) That the application and petition is an abuse of court process and the same ought to be dismissed with punitive costs to the respondents.

d) That the applicant’s case is not arguable and is not fit for consideration by this court.

2. The preliminary objection was opposed on grounds that:

a) That the preliminary objection does not satisfy conditions of declaring a matter res judicata.

b) That this court .has jurisdiction to entertain the petition.

3. A preliminary objection must be on a point of law and nothing more. This was clearly stated in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969)EA 696. At page 700 paragraph D-F Law JAas he then was, stated:

....A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.

4. An issue of jurisdiction is a point of law. Justice Nyarangi (JA) in the case of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1 where stated as follows:

I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no bas A preliminary objection must be on a point of law and nothing more. This was clearly stated in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969)EA 696. At page 700 paragraph D-F Law JA as he then was, stated:

....A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.

An issue of res judicata is equally a point of law.

5. Section 7 of the Civil Procedure Act, 2010;

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 the 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.

6. For res judicata to be successfully pleaded some ingredients must be proved. These were enumerated in the case of Independent Electoral & Boundaries Commission vs. Maina Kiai & 5 Others [2017] eKLRwhere the Court of Appeal said:

Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;

(a) The suit or issue was directly and substantially in issue in the former suit.

(b) That former suit was between the same parties or parties under whom they or any of them claim.

(c) Those parties were litigating under the same title.

(d) The issue was heard and finally determined in the former suit.

(e) 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.

7. Upon my perusal of the judgment in Kisumu Employment and Labour Relations Court Petition No. 42 of 2019, I make a finding that the present petition is not res judicata. The preliminary Objection is therefore dismissed with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 17TH DAY OF MARCH, 2022

KIARIE WAWERU KIARIE

JUDGE