https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2204

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E158 OF 2026** **KENYA YOUTH LIBERATION CONGRESS PETITIONER** **VERSUS** **THE GOVERNMENT PRESS 1ST RESPONDENT** **THE HON. ATTORNEY GENERAL 2ND RESPONDENT** **ISIOLO COUNTY ASSEMBLY 3RD RESPONDENT** **THE CLERK, ISIOLO COUNTY ASSEMBLY 4TH RESPONDENT** **AND** **HON. ABDULLAHI JALDESA BATICHA 1ST INTERESTED PARTY** **HON. MOHAMED ROBA KOTO 2ND INTERESTED PARTY** **RULING** The ruling herein relates to the 3rd, 4th respondents and 1st interested party Notice of Preliminary Objections dated 28 May 2026. The objections are that the petition herein should be dismissed with costs as the same is filed contrary to section 7 of the Civil Procedure Act, being *res judicata* and matters already addressed in Milimani ELRC Petition E139 of 2025 Hon. Abdullahi J Aldesa Banticha v The Government Press and 15 others, which is between the same parties and subject matter. The objections are that the petitioners are relitigating a matter already addressed by the court, thereby constituting an abuse of court process. On the objections, the 3rd and 4th respondents and the 1st interested party submitted that section 7 of the Civil Procedure Act defines a suit that is res judicata to include one already addressed by the court and concluded. The suit is under the same title and parties. In **John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR**, the court held that a suit is filed in contravention of the principles of *res judicata* where the parties are the same, and the same court has already resolved the dispute. In this case, the issue in dispute has been addressed by the court in ELRC Petition No. E139 of 2025. The court was called upon to examine the same factual and legal matrix concerning the speaker’s appointment and the alleged removal; hence, the petitioner invites the court to address the same matter. The reopening of the same matter already adjudged is an abuse of the court process. The respondents and interested party submitted that the court is without jurisdiction in a matter that is *res judicata*. The filing of the petition over a matter that the court had rendered itself amounts to abuse of court process and should be dismissed with costs. In reply, the petitioner submitted that the principles of *res judicata* do not apply in this case. The court has jurisdiction to hear the petition on the merits. The 2nd Interested Party was elected and sworn in as Speaker of the Isiolo County Assembly in terms of Article 178 of the Constitution. He was not lawfully removed from office, and the provisions of section 11 of the County Government Act were not met. The purported election of the 1st Interested Party as Speaker is unconstitutional and unlawful. In ELRC Petition E139 of 2025, the 1st Interested Party was the petitioner asserting his personal entitlement to the office of Speaker. The petitioner files the instant petition, a party distinct from the 1st Interested Party. The petition is thus filed under Articles 22 and 258 of the Constitution and seeks declaratory orders against the respondents and the Interested Parties. Under the provisions of section 7 of the Civil Procedure Act, the petition herein is different in nature and character and filed by a different and separate party from ELRC Petition E139 of 2025. In **IEBC v Maina Kiai & 5 others [2017] eKLR**, the court held that the doctrine of *res judicata* to operate, the party relying on it must demonstrate the concurrence of all of the conditions that the matter is directly or substantially in issue as a previous suit, the former suit is between the same parties, the court has decided, and there is a final determination. These elements are lacking in this case. The objections are without merit and should be dismissed with costs to allow the petition to be heard on its merits. The petitioner also filed further written submissions and reiterates its position that the objections by the respondent and Interested Party have no merit. **Determination** The twin issues herein are whether the petition herein is filed contrary to the doctrine of res judicata under section 7 of the Civil Procedure Act and whether the court has jurisdiction. Indeed, jurisdiction is everything. Without it, the court must put down its tools as held in **Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR)** and **Shollei v Judicial Service Commission & another [2018] KESC 42 (KLR)** that it is well recognised in our law that a court of law shall down its tools in respect of a matter before it, the moment it holds that it lacks jurisdiction. In the written submissions, the petitioner has admitted that the petition is filed under Articles 22 and 258 of the Constitution. It is a civil society organisation acting in the public interest, whereas ELRC Petition E139 of 2025 was filed by the 1st Interested Party seeking to enforce his rights; thus, the petitioners are different and seek distinct orders. To begin with, the petition herein is filed on the basis that the office of Speaker, Isiolo County Assembly, has never been lawfully vacant. Thus, the appointment of the Interested Party is unconstitutional and unlawful. Additionally, the court has taken judicial notice of ELRC Petition E139 of 2025, and the core issue in dispute was the 1st Interested Party challenging the removal from office of the Speaker of the Isiolo County Assembly. The provisions of section 7 of the Civil Procedure Act are now addressed 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) to include the principle of finality, which was a matter of public policy, to the traditional elements of: 1. *there was a former judgment or order which was final;* 2. *the judgment or order was on the merits;* 3. *the judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and* 4. *There had to be between the first and the second action identical parties, subject matter and cause of action.* To ensure there is no multiplicity of suits and the court time is well applied, the court emphasised that: *The principle of finality was one of the pillars upon which the judicial system was founded and the doctrine of res judicata prevented a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties. It ensured that litigation ended and that the verdict duly translated into conclusive fruit for one party and liability for another.* Hence, where parties can litigate the same matter as the petitioner, respondents, or interested parties, such matters should not be replicated in several suits. The petitioner does not deny the existence of ELRC Petition E139 of 2025, which challenges the constitutionality and legality of the position of the Speaker of the Isiolo County Assembly. Although the respondent and Interested Party have not attached the subject suit, the court is permitted, under the principle of judicial notice, to retrieve the file and appreciate the similarities, issues, and the application of section 7 of the Civil Procedure Act on res judicata therein. Furthermore, the definition of the petitioner in initiating this petition under Articles 22 and 258 of the Constitution denies the court the requisite jurisdiction under the jurisprudence from the Supreme Court of Kenya in [**Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2026/50/eng%402026-07-03)**.** The petitioner has no employment relationship with the respondents. There is no direct or potential employment relationship between the parties. None is claimed, save to urge a public-interest case under articles 22 and 258 of the Constitution. Because the petition is *res judicata* and without jurisdiction, the court must stop. **Accordingly, the petition is struck out. Each party to bear its costs.** **Delivered in open court this 30th day of July 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** ……………………………………………… and …………………………………..………