https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12718

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E162 OF 2026** **BETWEEN** **DR MAGARE GIKENYI……...…………………………………………..**1ST PETITIONER **ELIUD KARANJA MATINDI**……………………………………………...2ND PETITIONER **-VERSUS-** **THE NATIONAL ASSEMBLY**…………………………………………......1ST RESPONDENT **THE HON. ATTORNEY-GENERAL**……………………………………......2ND RESPONDENT **FRANCIS MEJA**……………………………………………………….....3RD RESPONDENT **MARY WANJIRA KIMONYE**………………………………………….......4TH RESPONDENT **BOYA MOLU**………………………………………………………….....5TH RESPONDENT **DR FRANCIS OWINO OTIENO**…………………………………………...6TH RESPONDENT **SELECTION PANEL FOR THE RECRUITMENT OF** **NOMINEES FOR** **APPOINTMENT AS CHAIRPERSON OF** **THE PUBLIC SERVICE COMMISSION…………………………………**7TH RESPONDENT **-AND-** **KATIBA INSTITUTE**……………………………………………...1ST INTERESTED PARTY **THE PUBLIC SERVICE COMMISSION**…………………………….2ND INTERESTED PARTY **THE ETHICS AND ANTI-CORRUPTION COMMISSION**……………3RD INTERESTED PARTY **RULING** 1. Before this Court for determination is the Notice of Motion Application dated 23rd March 2026, filed by the 3rd Respondent. The application is supported by an affidavit deposed to by the 3rd Respondent on the same date. 2. The Notice of Motion application is founded on the following grounds: 3. The Petitioners instituted the Petition, inter alia, seeking a declaration that under Article 250(6)(a) of the Constitution of Kenya, 2010, a person already serving as a member of a commission or as a holder of an independent office, unless ex officio, may not lawfully apply for, be shortlisted, interviewed, recommended for nomination, nominated, approved, appointed, or assume a different office in the same commission or independent office if the aggregate time served would exceed the constitutional six-year term limit. 4. On a perusal of the Petition and the orders sought, the Court is said to lack the requisite jurisdiction to hear and determine the matter. 5. The Petition and the Application dated 9th March 2026 are res judicata, the issues raised therein having been dealt with exhaustively and settled in two prior judgments of this Court: 1. ***Omondi & Another v Attorney General & 2 Others; Ethekon & 7 Others (Interested Parties) (Constitutional Petition E269 of 2025) [2025] KEHC 9956 (KLR), delivered by a three-judge bench (Aburili, Chigiti & Mwamuye, JJ) on 10th July 2025; and (ii) Gikenyi B. & Another v National Assembly & 6 Others; Public Service Commission (Interested Party) (Petition E018 of 2025) [2025] KEHC 12276 (KLR), delivered by Mwamuye, J on 12th August 2025.*** 6. The two decisions involved largely the same parties and dealt with the same issues now placed before the Court. 7. The Petition and Application are frivolous, vexatious, and an utter abuse of the process of the Court, and ought to be struck out and dismissed with costs. **The Responses and Submissions to the Application** 1. The Petitioners filed Grounds of Opposition dated 7th April 2026 and written submissions dated 15th May 2026 in response to the application. The 3rd Respondent filed written submissions dated 6th May 2026, and the 2nd and 7th Respondents filed their written submissions dated 20th May 2026. 2. The 3rd Respondent submits that the constitutional questions raised in the Petition regarding the interpretation of Article 250(6) of the Constitution of Kenya, 2010, have been exhaustively litigated, determined, and settled by this Court in the decisions cited in the application. 3. He relies on the four-limb test articulated by the Supreme Court in [**John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/39/eng%402021-08-06)he submits that (a) the subject matter of the present Petition the interpretation and application of Article 250(6) of the Constitution of Kenya,2010 is identical to that determined in Petition E018 of 2025 and Petition E269 of 2025; (b) the Petitioners here are the same Petitioners in Petition E018 of 2025, and the parties are, in substance, the same or their privies; (c) both prior decisions were arrived at after full hearings on the merits, with affidavits and submissions filed by the parties, and neither was dismissed for want of prosecution or on a technicality; and (d) both prior decisions were rendered by a court of competent jurisdiction. 4. Regarding the distinction the Petitioners draw between an intra-commission appointment, i.e., a member appointed to chairperson within the same commission, and an inter-commission appointment, i.e., a former commissioner of one body appointed to another, the 3rd Respondent submits that this is "a misleading distinction without any legal difference" and places reliance on paragraph 60 of the judgment in Petition E018 of 2025, where the Court held: *"Moreover, there is no allegation that either of the appointees had previously served in the PSC or had exceeded the six-year term limit in their prior postings. The constitutional bar under Article 250(6) (a) is not to 'public service' per se, but to reappointment within the same commission, a fact pattern that is not present in this case."* 1. The 3rd Respondent further submits that this passage shows that the Court in Petition E018 of 2025 already characterized the scope of the Article 250(6)(a) of the Constitution of Kenya, 2010 bar as concerned with reappointment within the same commission, and that the Petitioners, who were parties to that Petition, ought to have raised the intra-commission argument at that time. Failure to do so, it is submitted, renders the present Petition barred by constructive res judicata, relying on the dictum in Henderson v Henderson (1843) 3 Hare 100, that a court "will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case." 2. The 3rd Respondent further relies on Petition E269 of 2025 (Omondi), where the three-judge bench held that there is no blanket constitutional bar preventing a serving State officer from applying for a different constitutional office, provided the officer resigns from the incumbent office before assuming the new one, and submits that this reasoning was applied without distinguishing between intra-commission and inter-commission moves. 3. In the alternative, and without prejudice to the res judicata plea, the 3rd Respondent submits that the Petition is substantively weak: his appointment as Chairperson was a fresh appointment to a distinct constitutional office, not a reappointment as a member, made after a competitive process before a Selection Panel established specifically to recruit a Chairperson, and following his resignation as a member; and that, on his own averment, the six-year aggregate term limit under Article 250(6)(a) of the Constitution of Kenya, 2010, has not been exceeded. 4. The 3rd Respondent filed a case digest and relied on **George W M Omondi & another v National Bank of Kenya Ltd & 2 others [2001] KEHC 841 (KLR)** for the proposition that parties cannot evade res judicata by merely adding parties or causes of action in a subsequent suit; on **Kivanga Estates Limited v National Bank of Kenya Limited [2017] KECA 591 (KLR)** for the Court's inherent jurisdiction to strike out pleadings that are an abuse of process; and on **DT Dobie & Company (Kenya) Ltd v Muchina & another [1980] KECA 3 (KLR)** for the sparing exercise of that inherent jurisdiction. 5. The 2nd and 7th Respondents associated themselves entirely with the 3rd Respondent's application. Their submissions emphasise that res judicata is not a mere technicality but goes to the root of the Court's jurisdiction, such that if successfully invoked, the Court is deprived of any further jurisdiction over the dispute and the suit must be struck out. 6. They rely on the same passages from Gikenyi B. (Petition E018 of 2025) at paragraphs 37 and 60, and on **Henderson v Henderson**, to submit that the Petitioners are attempting to litigate the same constitutional question in a piecemeal fashion. They further rely on **Kamunye & Others v Pioneer General Assurance Society Ltd [1971] E.A. 263,** where the Court of Appeal for East Africa held that res judicata, being a fundamental principle relating to jurisdiction, may be raised as a valid defence to a constitutional claim, including on the basis of the Court's inherent power to prevent abuse of process under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 while cautioning that the doctrine "should only be invoked in constitutional litigation in the clearest of cases" and "sparingly," since constitutional rights "keep on evolving, mutating, and assuming multifaceted dimensions." 7. They urge this Court to find that the interpretation of Article 250(6)(a) of the Constitution of Kenya,2010 was fully canvassed in Petition E018 of 2025, and that the question whether a serving member could contest for the position of Chairperson or Vice-Chairperson ought to have been addressed exhaustively at that stage. 8. The Petitioners oppose the Application by way of Grounds of Opposition dated 7th April 2026 and written submissions dated 15th May 2026. They maintain that neither the Petition nor the underlying Application of 9th March 2026 is res judicata. 9. Applying the same four-limb test in **John Florence Maritime (supra),** as further summarised in **Bernard Mugo Ndegwa v James Nderitu Githae & 2 Others (2010) eKLR,** the Petitioners submit that the 3rd Respondent has not discharged the legal and evidential burden of proving res judicata, for the following reasons: *(a) In Petition E018 of 2025, the 3rd to 4th Respondents in the present matter were not, at the material time, already serving as commissioners of the Public Service Commission. The question of "upward mobility" or intra-commission reappointment could not, therefore, have arisen for hearing and determination in those proceedings. They state that to have raised it as the Respondents state, would have been speculative, and courts do not adjudicate hypothetical or academic questions.* *(b)The Petition before this court states is that the 3rd to 6th Respondents applied for and were appointed to the Public Service Commission while already serving members of that same Commission. This had not happened at the time Petition E018 of 2025 had been filed and could not have been pleaded before the court.* *(c) As regards Petition E269 of 2025, the Petitioners were not parties to that suit, nor were the Interested Parties in that matter already serving members of the IEBC at the time of their nomination. The same absence of an intra-commission fact pattern applies.* *(d) Neither of the two decisions relied on by the 3rd Respondent heard and determined the question whether a person already serving as a member of a commission may be appointed to a different office within that same commission such that their aggregate service exceeds six years. The determinations in both prior cases concerned appointments to commissions or offices other than those in which the appointees had previously served.* 1. The Petitioners submit that paragraph 60 of Petition E018 of 2025 did not decide the intra-commission question, as that question was not before the Court. It merely observed, in passing, that the bar applies to reappointment within the same commission, while rejecting a different, inter-commission argument. 2. They contend that a matter cannot be said to have been "heard and finally decided" within the meaning of Section 7 of the Civil Procedure Act, or to satisfy the test in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), merely because a passing observation touching on it appears in a judgment resolving a materially different question. 3. On the invocation of constructive res judicata, the Petitioners object to the proposition that Henderson v Henderson operates to bar every point that could conceivably be woven into an earlier suit, emphasising instead that the intra-commission question was not part of the "subject in contest" in either prior case and could not, consistently with the rule against advisory opinions, have been properly raised absent a live dispute on that specific fact pattern. 4. The Petitioners submit that, in the event the 3rd Respondent's application succeeds, they would be left without any avenue to resolve the question before the court in the present matter, and this would misconstrue the intention behind Article 250(6)(a) of the Constitution of Kenya, 2010, regarding the term limits. 5. The petitioners further referred to the provisions of Section 2 of the Public Service Commission Act, which defines a "member" of the Commission to include the Chairperson and Vice-Chairperson. They contend that all nine (9) members are equally subject to the same six (6)-year term ceiling, so that no internal promotion within the Commission can lawfully be used to circumvent that limit. 6. They relied on the jurisprudence set out in **John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), William Kabogo Gitau v Ferdinand Ndung’u Waititu [2016] KEHC 8436 (KLR) and Oyugi & 2 others v Attorney General [2016] KEHC 5885 (KLR)**. They submit that while res judicata applies with even force to constitutional litigation, courts must exercise caution lest a genuine rights violation be shut out of the seat of justice without ever being heard on its merits. **Issues for Determination** 1. Based on the pleadings and submissions of the parties, the following issues arise for determination in the application: **(a) Whether the Petition dated 9th March 2026 and the Petitioners' Application of the same date offend the doctrine of res judicata,** **(b) Whether the doctrine of constructive res judicata as articulated in Henderson v Henderson bars the Petitioners from raising the intra-commission question in the Petition;** **(c) Whether the Petition and Application are an abuse of the process of this Court; and** **(d) What orders the Court should make, including as to costs.** **Analysis and Determination** **Whether the Petition dated 9th March 2026 and the Petitioners' Application of the same date offend the doctrine of res judicata** 1. Section 7 of the Civil Procedure Act provides that no court shall try any suit or issue in which the matter is directly and substantially in issue, if it has been so in a former suit between the same parties, litigating under the same title, in a court of competent jurisdiction, and has been heard and finally decided by that court. 2. The Supreme Court in **John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR)** held that whenever res judicata is raised, the court must examine the decision claimed to have settled the matter, the entire pleadings and record of the previous case, and the instant case, to ascertain whether the issues determined in the former case are the same as those now raised, whether the parties are the same or litigate under the same title, and whether the former decision was rendered by a court of competent jurisdiction. 3. Applying that test, the fourth limb of competent jurisdiction is satisfied in both Petition E018 of 2025 and Petition E269 of 2025, which were determined by the Constitutional and Human Rights Division of the High Court, which has jurisdiction to interpret the application of Article 165(3) (d) of the Constitution of Kenya, 2010. 4. The fifth limb on finality is tied to the fourth limb. Neither the judgment in Petition E018 of 2025 nor that in Petition E269 of 2025 has been appealed, reviewed, or set aside, and both were arrived at after full hearings on the merits rather than being disposed of on a preliminary or technical point. Therefore, the fourth limb succeeds. 5. The second limb, identity of parties, is more nuanced. As between the present Petition and Petition E018 of 2025, the Petitioners are identical, and the 3rd to 6th Respondents in this Petition were also parties, in one capacity or another, in the earlier suit. As regards the present Petition and Petition E269 of 2025, the Petitioners herein were not parties to the latter, nor were the 4th to 6th Respondents parties to that suit, whose subject matter concerned different individuals altogether. 6. Therefore, the court holds that reliance on Petition E269 of 2025 as a basis for res judicata does not stand unless it is shown that the present parties are privies to the earlier parties, and no such privity has been demonstrated on the record before this Court. 7. The first and third limb therefore are what the court shall delve into to determine the claim of Res Judicata. Whether the matter directly and substantially in issue in the present Petition is the same matter, litigated under the same title, as was directly and substantially in issue and finally decided in Petition E018 of 2025. 8. On careful reading of the judgment in Petition E018 of 2025, this Court finds that the facts of the matter were that the 5th and 6th Respondents in that suit had previously served full six-year terms in commissions other than the Public Service Commission, namely the IEBC and the Commission on Revenue Allocation, respectively, and were then appointed as members of the Public Service Commission. The Court's holding, at paragraphs 58 to 61 of that judgment, answers the question of whether Article 250(6)(a) of the Constitution of Kenya, 2010, bars a person who has served a full term in one commission from being appointed to a different commission. It does so in the negative, holding that each constitutional commission is a distinct legal entity and that the prohibition is not to "public service" generally but to reappointment within the same commission. 9. The Respondents have relied on paragraph 60 of the judgment. That paragraph does not determine the distinct question now raised, namely whether a person already serving as a member of a commission may be appointed to a different office (such as Chairperson) within that same commission, such that the aggregate service in that one commission exceeds six years. 10. The observation that the bar is against "reappointment within the same commission" was made in the course of rejecting an argument that the bar extends across different commissions; it was not made in the resolution of an actual dispute over an intra-commission appointment, because, on the Petitioners' undisputed averment, none of the 3rd to 6th Respondents in the present Petition was, at the time of the events considered in Petition E018 of 2025, serving as a member of the Public Service Commission and applying for a further office within it. 11. This distinction is not, in this Court's view, the empty semantic manoeuvre the Respondents characterise it as. The doctrine of Res judicata requires identity of the matter directly and substantially in issue, not merely identity of the constitutional provision under discussion. Two disputes may both concern the proper construction of Article 250(6)(a) of the Constitution of Kenya, 2010, without being the same "matter" for Res judicata purposes, where the operative facts giving rise to the alleged constitutional breach are materially different. 12. Here, an inter-commission appointment and an intra-commission appointment engage different factual premises, and, as the Petitioners correctly point out, courts do not pronounce on questions that do not arise on the facts before them. To have decided the intra-commission question in Petition E018 of 2025 would have amounted to an impermissible advisory opinion on a hypothetical dispute. 13. This finding follows the caution given by the East African Court of Appeal in **Kamunye & Others v Pioneer General Assurance Society Ltd [1971] E.A. 263**. The Court held that res judicata may be raised as a defence to a constitutional claim, but only "in the clearest of cases," and must be applied "sparingly," since constitutional rights "keep on evolving, mutating, and assuming multifaceted dimensions." This approach was recently followed in Mwangi v Omeri; Kusimba (Interested Party) [2025] KEBPRT 286 (KLR), where the Tribunal applied the Kamunye test in affirming a plea of res judicata. 14. It is equally consistent with the guidance in **William Kabogo Gitau v Ferdinand Ndung’u Waititu [2016] KEHC 8436 (KLR) and Oyugi & 2 others v Attorney General [2016] KEHC 5885 (KLR)**, cited by the Petitioners, that although res judicata applies with even force to constitutional litigation, the factors and circumstances of each case ought to be closely scrutinized lest a person with a genuine and previously unadjudicated grievance be shut out of the seat of justice. 15. In the Court's assessment, the present matter is not the clearest of cases contemplated in **East African Court of Appeal in Kamunye & Others v Pioneer General Assurance Society Ltd [1971] E.A. 263**. The intra-commission question is a distinct legal and factual controversy that was not directly and substantially in issue in Petition E018 of 2025 in Petition E269 of 2025. The plea of res judicata as pleaded therefore fails. **Whether the doctrine of constructive res judicata as articulated in Henderson v Henderson bars the Petitioners from raising the intra-commission question in the Petition** 1. The 3rd Respondent's alternative argument in his submissions is that even if the intra-commission question was not actually decided in Petition E018 of 2025, it ought to have been raised then, and the Petitioners are now precluded from raising it by the doctrine of constructive res judicata, as explained in Henderson v Henderson (1843) 3 Hare 100 and applied by the Supreme Court in John Florence Maritime (supra). 2. The general principle in litigation is that a litigant must present the whole case and all matters touching the subject in issue, and will not ordinarily be permitted to intentionally reserve an issue for determination in a suit filed by the same party at a later time. However, the court notes that the doctrine of constructive Res judicata applies only to a point that relates to the subject matter of litigation in an earlier suit and that the party, exercising reasonable diligence, might have raised at the time for the court's consideration. 3. On the facts here, the intra-commission question was not the subject of litigation in Petition E018 of 2025 and could not arise, for the reason that none of the Respondents in that Petition was, at the material time, a serving member of the Public Service Commission seeking a further appointment within it. A party cannot be faulted for failing to raise an issue that had not yet arisen and subsequently not presented before the trial court. 4. Constructive res judicata only bars points that could have been raised in the earlier suit. It does not extend to a new dispute that arose later; here, one that arose only after the 3rd to 6th Respondents were appointed Chairperson and members of a Commission in which they were already serving. 5. Accordingly, the plea of constructive res judicata also fails. **Whether the Petition and Application are an abuse of the process of this Court** 1. The Respondents have urged the Court to strike out the Petition on grounds of it being an abuse of process. They have relied on the decision of [**Kivanga Estates Limited v National Bank of Kenya Limited [2017] KECA 591 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/591/eng%402017-03-24) and [**DT Dobie & Company (Kenya) Ltd v Muchina & another [1980] KECA 3 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/1980/3/eng%401980-03-18)wherein Lord Herschell's dictum in **Lawrence v Lord Norreys** that the jurisdiction to dismiss an action as an abuse of process "ought to be very sparingly exercised, and only in exceptional cases." 2. Having found that the Petition raises a distinct and previously unadjudicated constitutional question, the Court is not persuaded that this is one of those exceptional cases. The Petitioners' Petition on Article 250(6)(a) of the Constitution, which safeguards the integrity of constitutional commissions generally, cannot be characterised as frivolous, vexatious, or an abuse of the court process. 3. For the reasons set out above, the Court makes the following orders: (a) The 3rd Respondent's Notice of Motion Application dated 23rd March 2026 be and is hereby dismissed. (b) Each party shall bear its own costs of the Application. 1. It is so ordered. **Dated** and **signed at Nairobi, this 31st day of July 2026.** **Gregory Mutai** **JUDGE** **In the presence of:** No appearances for Dr Margaret Gikenyi and Eliud Matindi, the Petitioners (pro se litigants); Mr **Kiilu**, holding brief for Mr **Atingo,** for the **1st Respondent**; Mr **Kimathi**, holding brief for Mr **Agwara,** for the **3rd Respondent**; Mr **Thande Kuria,** for the **2nd and 7th Respondent**; No appearance for the **1st interested Party**; No appearance for the **2nd interested Party**; No appearance for the **3rd Interested Party**; and Ms **Neema Lwambia - Court Assistant**.