[2023] KEELRC 82 (KLR)
The court found that the respondents' application to dismiss the petition was res judicata, as the same issues had already been determined on their merits by the court sitting in Kericho in a previous application between the same parties. The court held that it would be an abuse of the court process to revisit and...
Source-derived case information.
- Citation
- [2023] KEELRC 82 (KLR)
- Parties
- Applicant: Job Ong’ombe Gesembe; 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 011 of 2022
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection/application to Dismiss
- Outcome
- Respondents' application dismissed as res judicata and an abuse of court process.
- Judges
- S Radido
- Legal Topics
- Termination of Employment, Public Service Employment, Res Judicata, Constitutional Rights in Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Job Ong’ombe Gesembe
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 res judicata, as the same issues had already been determined on their merits by the court sitting in Kericho in a previous application between the same parties. The court held that it would be an abuse of the court process to revisit and re-litigate matters that had already been conclusively decided. Consequently, the court dismissed the respondents' motion and ordered that costs be paid personally by the respondents’ advocate, emphasizing the need to uphold the finality of judicial decisions and prevent unnecessary duplication of proceedings.
Court Disposition
Respondents' application dismissed as res judicata and an abuse of court process.
Orders
- The respondents' motion dated 23 November 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
30 paragraphs
Gesembe v Nyaribo Governor, Nyamira County & 2 others (Petition 011 of 2022) [2023] KEELRC 82 (KLR) (25 January 2023) (Ruling)
Neutral citation: [2023] KEELRC 82 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Petition 011 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 KENYA AND IN 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 KENYA AND
IN THE MATTER OF RULES 4, 10, 11, 1,3 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, 2013 AND IN THE MATTER OF SECTION 31 OF THE COUNTY GOVERNMENTS ACT, NO. 17 OF 2012 LAWS OF KENYA
IN THE MATTER OF SECTION 45 OF THE EMPLOYMENT ACT
Between
Job Ong’ombe Gesembe
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 23 November 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 in Kericho had in a ruling delivered on 16 March 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 24 November 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 respondent lodged an application dated 21 March 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 21 September 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 25THDAY OF JANUARY 2023. RADIDO STEPHEN, MCIARBJUDGEAppearancesFor Petitioner Mwae & Associates AdvocatesFor Respondents Ligunya Sande & AssociatesCourt Assistant Chrispo Aura