https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13057

Lumwaji v Teachers Service Commission & 2 others (Petition E712 of 2025) [2026] KEHC 13057 (KLR) (Constitutional and Human Rights) (19 August 2026) (Ruling) Neutral citation: [2026] KEHC 13057 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E712 of 2025 RE Aburili, J August 19, 2026 IN THE MATTER OF ARTICLE 165(3)(d) AND 258(1) & 258(2)(c) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF USURPATION OF MANDATE OF TEACHERS SERVICE COMMISSION AND IN THE MATTER OF ENFORCEMENT OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF INTERPRETATION OF ARTICLE 235 (2) OF THE CONSTITUTION OF KENYA 2010 AND INTERPRETATION OF ARTICLE 237(2)(c) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF CONSTITUTIONALITY OF SECTION 38 OF THE EARLY CHILDHOOD EDUCATION ACT, 2021 Between Stephen Chahasi Lumwaji Petitioner and Teachers Service Commission 1st Respondent Council of Governors 2nd Respondent Hon. Attorney General 3rd Respondent Ruling On Whether the Petition is Res Judicata Nairobi High Court Constitutional Petition No. 127 of 2014 Introduction 1.The Petitioner herein who describes himself as a citizen of Kenya and a civil society activist filed the instant Petition in public interest under Article 258(2)(d) of the Constitution of Kenya. 2.The 1st Respondent is the Teachers Service Commission created under Article 237 of the Constitution of Kenya. 3.The 2nd Respondent is the Council of Governors, created under the Inter-Governmental Relations Act. 4.The 3rd Respondent is the Hon. Attorney General, an office created under Article 156 of the Constitution of Kenya. The Petition 5.The Petition dated 27th October 2025 seeks the following reliefs: -(a)That a declaration be and is hereby issued that Section 38 of the Early Childhood Education Act, 2021, Cap211B, Laws of Kenya, is unconstitutional to the extent that it contravenes Article 235(2) as read with Article 237(2) (c) of the Constitution of Kenya.(b)That an order be and is hereby issued suspending implementation, enforcement and operationalization of Section 38 of the Early Childhood Education Act in its entirety.(c)That a declaration be and is hereby issued that Early Childhood Education Teachers are subject to Teachers Service Commission.(d)That this honourable court do order the Honourable Attorney General, the 3rd Respondent herein, to offer technical support in the Implementation of the orders of this court.(e)That any further or other orders that this honourable Court may deem fit to grant in the circumstances.(f)That costs be provided for by the Respondents. 6.The Petition is premised on the facts outlined therein and further supported by the Petitioner’s sworn affidavit dated evenly with the Petition. 7.The Petitioner challenges the employment of Early Childhood Education (ECE) teachers by county governments, arguing that it violates Article 235(2) of the Constitution, which prohibits county public service authority over offices subject to the Teachers Service Commission (TSC). It is asserted that because ECE teachers are registered with the TSC, they are subjected to dual and overlapping disciplinary processes, under both the County Human Resource Manual and the TSC Code of Conduct, therefore violating Article 237(2)(e), which mandates TSC to register all teachers and exercise disciplinary control over them. That consequently, their employment by county governments is illegal under Article 235(2) of the Constitution. 8.It is claimed that ECE teachers currently suffer injury through dual disciplinary procedures under both the County Human Resource Manual and the TSC Code of Conduct. It is also averred that Section 38 of the Early Childhood Education Act, 2021 which assigns recruitment, registration and remuneration of ECE teachers to county governments directly contradicts Article 235(2) and Article 237(2)(c) of the Constitution. 9.That since ECE centres are public schools, the Petitioner contends that staffing must fall under the TSC as prescribed by Article 237(2)(c), meaning, County Governments lack the legal mandate to employ ECE teachers directly. 10.In response to the Petition, the Respondents filed a Notice of Preliminary Objection dated 14th April 2026 opposing the Petition on the following grounds: -(1)Pursuant to the provision of Section 7 of the Civil Procedure Act Cap 21 of the laws of Kenya, the Petition is res judicata as the matters in issue have been directly and substantially heard and determined by a court of competent Jurisdiction in Nairobi High Court Petition Number 127 of 2014: Kenya National Union of Teachers vs. Attorney General and 3 others.(2)This Honourable Court lacks jurisdiction to hear and determine a Petition whose substance has been determined by a court of concurrent Jurisdiction.(3)The Petition is bad in law, frivolous, vexatious and amounts to gross abuse of the court process. 11.The parties took directions to first canvass the Preliminary Objection by way of oral submissions. However, I note that the Petitioner herein has also filed written submissions dated 21st June 2026 which are summarized hereunder. 12.The Petitioner relies on Article 258(1) & (2)(c) of the Constitution which grants broad locus standi to institute court proceedings alleging constitutional infringement or threat, to argue that the doctrine of res judicata does not apply. The Petitioner asserts that the present Petition introduces distinct constitutional questions and statutory provisions that were neither pleaded nor determined in the 2014 case. 13.Specifically, the Petitioner states that while Petition No. 127 of 2014 focused broadly on Article 237 establishing the TSC, Article 252 on general functions and powers of Commissions and Section 9 of Part II of the Fourth Schedule on county functions, while the instant petition specifically seeks the interpretation of Article 235(2) governing the county public service framework and the scope of staffing oversight and Article 237(2)(c) regulating the assignment of teachers employed by the TSC. 14.The Petitioner states that he seeks a declaration of unconstitutionality against Section 38 of the Early Childhood Education (ECE) Act, 2021 concerning the recruitment and management framework of ECE teachers, a statute enacted five years after the 2016 judgment in the previous petition. 15.The Petitioner highlights that under Article 165(3)(d) of the Constitution, the High Court retains original, unfettered jurisdiction to determine matters regarding constitutional interpretation, which should not be restricted by a misapplied plea of res judicata. 16.Grounding the argument in Kituo Cha Sheria v Attorney General, Supreme Court Advisory Opinion Reference No. E001 of 2023, which establishes that the Constitution must be read holistically so that no single provision destroys another, the Petitioner asserts that barring the court from defining the phrase subject to Article 235(2) in relation to ECE teachers would create a judicial absurdity and violate his fundamental rights to access to justice and a fair hearing. 17.The Petitioner concludes by asserting that the proper interpretation of whether ECE teachers fall under the TSC or county public service is a matter of significant public interest that warrants a full hearing on the merits. 18.When the parties appeared before this Court on 22nd June 2026, Mr. Ochieng Counsel for the 1st Respondent submitted that the main ground in their preliminary Objection is Res Judicata in light of Petition No. 127 of 2014 and argued that the Court is devoid of jurisdiction as the matter was already determined on recruitment of ECE teachers by the County Governments from TSC. 19.Mr. Thande Kuria Counsel for the 3rd Respondent submitted, contending that the matter was resolved in Petition 127 of 2014 and other legislation on employment of the ECE Teachers under Schedule 4 of the Constitution. He was in agreement with Mr. Ochieng that the matter is res judicata and the Petition should be struck out. 20.Mr. Lumwaji the Petitioner appearing in person submitted relying on his written submissions dated 21st June 2026 and argued that his Petition was different. He surged that the Education system has since changed from 844 to CBC. That the 4th Schedule talks of facilities not teaching professionals 21.He submitted that the Respondents are abdicating their responsibilities. He asserted that parties must be identical for res judicata to be valid; and that there are other issues needing constitutional interpretation. The petitioner submitted that he was not party to Petition No. 127 of 2014 and urged the Court to dismiss the Preliminary Objection maintaining that the Petition is not res judicata. 22.In a rejoinder, Mr. Ochieng submitted that the parties must not be identical for res judicata to be established and that the issues raised have already been resolved in Petition No. 127 of 2014. Analysis and Determination 23.I have considered the arguments for and against the preliminary objection and the main issue for determination in this ruling is whether the petition is res judicata Constitutional Petition 127 of 2014 between Kenya National Union of Teachers vs Attorney General & 4 others [2016] KEHC 8205 (KLR). 24.It is important to note that a successful raising of the plea of res judicata is a complete bar to the jurisdiction of a Court.The Supreme Court expressed itself on the doctrine of res judicata in Petition 14, 14A, 14B & 14C of 2014 (Consolidated) Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR where it delimited the operation of the doctrine of res-judicata as follows:“[317]The concept of res judicata operates to prevent causes of action, or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings. In this case, the High Court relied on “issue estoppel”, to bar the 1st, 2nd and 3rd respondents’ claims. Issue estoppel prevents a party who previously litigated a claim (and lost), from taking a second bite at the cherry. This is a long-standing common law doctrine for bringing finality to the process of litigation; for avoiding multiplicities of proceedings; and for the protection of the integrity of the administration of justice? all in the cause of fairness in the settlement of disputes.[318]This concept is incorporated in Section 7 of the Civil Procedure Act (Cap. 21, Laws of Kenya) which prohibits a Court from trying any issue which has been substantially in issue in an earlier suit. It thus provides: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 them 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.[319]There are conditions to the application of the doctrine of res judicata:(i)the issue in the first suit must have been decided by a competent Court;(ii)the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and(iii)the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title Karia and Another v. The Attorney General and Others, [2005] 1 EA 83, 89.[320]So, in the instant case, the argument concerning res judicata can only succeed when it is established that the issue brought before a Court is essentially the same as another one already satisfactorily decided, before a competent court.[333]We find that the petition at the High Court had sought to relitigate an issue already determined by the Public Procurement Administrative Review Tribunal. Instead of contesting the Tribunal’s decision through the prescribed route of judicial review at the High Court, the 1st, 2nd and 3rd respondents instituted fresh proceedings, two years later, to challenge a decision on facts and issues finally determined. This strategy, we would observe, constitutes the very mischief that the common law doctrine of “issue estoppel” is meant to forestall. Issue estoppel “prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route” (Workers’ Compensation Board v. Figliola [2011] 3 S.C.R. 422, 438 (paragraph 28)).[334]Whatever mode the 1st, 2nd and 3rd respondents adopted in couching their prayers, it is plain to us, they were challenging the decision of the Tribunal, in the High Court. It is a typical case that puts the Courts on guard, against litigants attempting to sidestep the doctrine of “issue estoppel”, by appending new causes of action to their grievance, while pursuing the very same case they lost previously. In Omondi v. National Bank of Kenya Ltd. & Others, [2001] EA 177 the Court held that “parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.”[352]The Judicial Committee of the Privy Council, in Thomas v. The Attorney-General of Trinidad and Tobago, [1991] LRC (Const.) 1001 held that “when a plaintiff seeks to litigate the same issue a second time relying on fresh propositions in law he can only do so if he can demonstrate that special circumstances exist for displacing the normal rules.” That court relied on a case decided by the Supreme Court of India, Daryao & Others v. The State of UP & Others, (1961) 1 SCR 574 to find that the existence of a constitutional remedy does not affect the application of the principle of res judicata. The Indian Court also rejected the notion that res judicata could not apply to petitions seeking redress with respect to an infringement of fundamental rights. Gajendragadkar J stated:But is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law, then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now the rule of res judicata…has no doubt some technical aspects…but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.[353]Kenya’s High Court recently pronounced itself on the issue of the applicability of res judicata in constitutional claims. In Okiya Omtatah Okoiti & Another v. Attorney General & 6 Others, High Court Const. and Human Rights Division, Petition No. 593 of 2013 [2014] eKLR, Lenaola J. (at paragraph 64) thus stated:Whereas these principles have generally been applied liberally in civil suits, the same cannot be said of their application in constitutional matters. I say so because, in my view, the principle of res judicata can and should only be invoked in constitutional matters in the clearest of cases and where a party is relitigating the same matter before the Constitutional Court and where the Court is called upon to redetermine an issue between the same parties and on the same subject matter. While therefore the principle is a principle of law of wide application, therefore it must be sparingly invoked in rights-based litigation and the reason is obvious.[354]On the basis of such principles evolved in case law, it is plain to us that the 1st, 2nd and 3rd respondents were relitigating the denial to them of a BSD licence, and were asking the High Court to redetermine this issue.[355]However, notwithstanding our findings based on the common law principles of estoppel and res- judicata, we remain keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law. By clothing their grievance as a constitutional question, the 1st, 2nd and 3rd respondents were seeking the intervention of the High Court in the firm belief that, their fundamental right had been violated by a state organ. Indeed, this is what must have informed the Court of Appeal’s view to the effect that the appellants (respondents herein) were entitled to approach the Court and have their grievance resolved on the basis of Articles 22 and 23 of the Constitution.” 25.Section 7 of the Civil Procedure Act provides:7.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 them claim, litigating under the same title in a court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such court. 26.The Supreme Court pronounced itself on what the doctrineof res judicata entails in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR (Muiri Coffee case) as follows: -“52.Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. Such a perception has a basis in comparative jurisprudence; in the Ugandan case of Hon Norbert Mao v Attorney-General, Constitutional Petition No 9 of 2002; [2003] UGCC3, the petitioner brought an action on behalf of 21 persons from his constituency, for declarations under article 137 of the Uganda Constitution, and for redress under article 50 of that Constitution. The matter arose from an incident in which officers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them. Unknown to the petitioner, another action had already been filed under article 50, seeking similar relief; and Judgment had been given in Hon Ronald Reagan Okumu v Attorney-General, Misc Application No0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the petition, on a plea of res judicata, declining the petitioner’s pleas that certain important constitutional declarations now sought, had not been accommodated in the earlier Judgment.53.In Silas Make Otuke v Attorney-General & 3 others, [2014] eKLR, the High Court of Kenya agreed with the Privy Council decision in Thomas v The AG of Trinidad and Tobago (1991) LRC (Const) 1001, in which the Board was “satisfied that the existence of a constitutional remedy as that upon which the appellant relies does not affect the application of the principle of res judicata”.54.The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.55.It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.56.The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):“The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”57.The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:… where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of 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. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied].58.Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, [2010] eKLR, under five distinct heads:(i)the matter in issue is identical in both suits;(ii)the parties in the suit are the same;(iii)sameness of the title/claim;(iv)concurrence of jurisdiction; and(v)finality of the previous decision.59.That courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in ET v Attorney-General & another, [2012] eKLR, thus:“The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and others, [2001] EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J, in the case of Njangu v Wambugu and another Nairobi HCCC No 2340 of 1991 (unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…..” 27.The Court of Appeal in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR (which decision was overturned by the Supreme Court) but discussed the doctrine of res judicata at length. The apex Court stated in part as follows:“The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unravelling uncontrollably. In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence. It is a doctrine of general application and it matters not whether the proceedings in which it is raised are constitutional in nature. The general consensus therefore remains that res judicata being a fundamental principle of law that relates to the jurisdiction of the court, may be raised as a valid defence to a constitutional claim even 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. On the whole, it is recognized that its scope may permeate broad aspects of civil law and practice. We accordingly do not accept the proposition that Constitution-based litigation cannot be subjected to the doctrine of res judicata. However, we must hasten to add that it should only be invoked in constitutional litigation in the clearest of the cases. It must be sparingly invoked and the reasons are obvious as rights keep on evolving, mutating, and assuming multifaceted dimensions.We also resist the invitation by the appellants to hold that all constitutional petitions must be heard and disposed of on merit and that parties should not be barred from the citadel of justice on the basis of technicalities and rules of procedure which have no place in the new constitutional dispensation. The doctrine is not a technicality. It goes to the root of the jurisdiction of the court to entertain a dispute. If it is successfully ventilated, the doctrine will deny the court entertaining the dispute jurisdiction to take any further steps in the matter with the consequence that the suit will be struck out for being res judicata. That will close the chapter on the dispute. If the doctrine has such end result, how can it be said that it is a mere technicality" If a constitutional petition is bad in law from the onset, nothing stops the court from dealing with it peremptorily and having it immediately disposed of. There is no legal requirement that such litigation must be heard and determined on merit. From our expose of the doctrine above, we are now able to formally answer the issues isolated for determination in this appeal earlier as follows: -i)The doctrine of res judicata is applicable to constitutional litigation just as in other civil litigation as it is a doctrine of general application with a rider, however, that it should be invoked in constitutional litigation in rarest and in the clearest of cases.ii)There is no legal requirement or factual basis for the submission that the doctrine must only be invoked and or ventilated through a formal application. It can be raised through pleadings as well as by way of preliminary objection.iii)The ingredients of res judicata must be given a wider interpretation; the issue in dispute in the two cases must be the same or substantially the same as in the previous case, parties to the two suits should be the same or parties under whom they or any of them is claiming or litigating under the same title and lastly, the earlier claim must have been determined by a competent court. 28.Section 38 of the Early Childhood Education Act provides38.Recruitment of early childhood teachers(1)The county government shall be responsible for the—(a)recruitment and professional development of early childhood education teachers in public education centres within the county; and(b)maintenance of a register of early childhood education teachers recruited by it under paragraph (a).(2)The county government shall pay to early childhood education teachers employed in public education centres within the county, such remuneration as it shall, in consultation with the Salaries and Remuneration Commission, determine. 29.In the Kenya National Union of Teachers v Attorney General & 4 others [2016] KEHC 8205 (KLR), constitutional Petition No. 127 of 2014, [the KNUT] determination, the Court stated as follows:43.As stated earlier, this Petition concerns an interpretation of the question whether the recruitment of ECE teachers by County Governments is in conflict with the functions and powers conferred upon the TSC pursuant to Articles 237 and 252 of the Constitution.…49.The dispute in this Petition is whether County Governments have the power to recruit ECE teachers and whether they have that power or not would depend in the first place on an interpretation accorded to Section 9 of Part II of the Fourth Schedule as read together with the provisions of Article 237 of the Constitution. This means that the present dispute concerns an interpretation of the Constitution and is not per se a dispute as contemplated under Section 30(1) of the Intergovernmental Relations Act.…51.Having said so, the subject matter of the Petition is one that falls squarely within the jurisdiction of this Court under Articles 165(3)(d) and 258(1) of the Constitution. For clarity, that is the jurisdiction to interpret the Constitution and determine whether it has been violated in any manner.…53.With that clarification in mind, I now turn to determine the crux of the Petition.Whether the recruitment of ECE teachers by County Government violates the constitutional powers of TSC54.The constitutional functions of National and County Governments are spelt out under Part I and II of the Fourth Schedule as read with Articles 185(2), 186(1) and 187(2) of the Constitution. In respect of matters of education, on one hand Sections 15 and 16 of Part 1 of the Fourth Schedule state that the National Government shall have the following functions;“15.Education policy, standards, curricula, examinations and the granting of university charters.16.Universities, tertiary educational institutions and other institutions of research and higher learning and primary schools, special education, secondary education and special education institutions;”55.On the other hand, Section 9 of Part II of the Fourth Schedule states that;“The functions of county governments are;…“(9)pre-primary education, village polytechnics, home craft centers and child care facilities”.Without saying more, the demarcation of powers is clear and primary school education and all close including research institutions fall within the purview of the National Government.56.Having so noted, the contest herein manifests itself in terms of Article 237 of the Constitution which provides;237.(1)There is established the Teachers Service Commission.(2)The functions of the Commission are—(a)to register trained teachers;(b)to recruit and employ registered teachers;(c)to assign teachers employed by the Commission for service in any public school or institution;(d)to promote and transfer teachers;(e)to exercise disciplinary control over teachers; and(f)to terminate the employment of teachers.(3)The Commission shall––(a)review the standards of education and training of persons entering the teaching service;(b)review the demand for and the supply of teachers; and(c)advise the national government on matters relating to the teaching profession. (Emphasis added)57.Article 237(1) (b) of the Constitution is therefore plain and requires no more than a literal interpretation which is that the TSC is the body responsible for recruiting and employing registered teachers and the next question is whether County Governments would not by law have any mandate to recruit and employ ECE teachers.58.In that regard, the Constitution has created two levels of Government and assigned functions to each level of Government and at Article 6 (2) of the Constitution it is stipulated that;“The governments at the national and county levels are distinct and interdependent and shall conduct their mutual relations on the basis of consultation and cooperation”.59.The importance and the need for cooperation between the National and the County Governments has further been provided for under Article 189 of the Constitution which provides that;……The intention therefore, supported by law as stated above, is that the National Government has responsibility for policy, standard and curriculum development and a County Government shall then undertake the implementation thereof at its level of Government. To what extent should TSC therefore get involved in pre-primary education?…Principally therefore, the Constitution has introduced a multi-level system of government that shares resources and responsibilities. These two levels of Government are however on one hand are independent and on the other, inter-dependent. The distinctiveness refers to the autonomy of the two levels of Government which connotes that each of them ought to perform its powers and functions without interference from the other. This autonomy is made clear in the sense that Article 1 (4) of the Constitution recognizes that each of these levels exercises sovereign power on behalf of the people. None of them is therefore an agent of the other but each is an equal partner in the governance structure in Kenya.Despite this distinct character, the Constitution also recognizes that the two levels of Government are interdependent, which connotes connectivity and the need to work together in discharging their respective functions. It essentially means that none of the two levels of Government can operate in isolation of the other. Interdependence can be seen in different contexts. For instance, independent commissions and state organs such as the TSC, the National Land Commission, the Independent, Electoral and Boundaries Commission, the Commission on Revenue Allocation and the Auditor General serve both levels of Government.61.With that understanding in mind, the Petitioner now claims that any unregistered ECE teacher purportedly hired by a County Government would be undertaking his/her duties illegally. In that regard, it is true that the TSC is the body responsible for registering trained teachers and recruiting them. But can it recruit ECE teachers for a County Government? I do not think so. I say so because elsewhere above, I have found that issues relating to pre-primary pre-primary education is a function of County Governments. 62. However, I have also found that the two – levels of Government are inter-dependent and must rely on organs at both levels to achieve their respective mandates in matters relating to education generally. .63.In that regard firstly, the Basic Education Act was enacted to give effect to the provisions of Article 53 of the Constitution and for the promotion and regulation of free and compulsory basic education and to provide for accreditation, registration, governance and management of institutions of basic education at the national level, through the establishment of the National Education Board and at the county level through the County Education Board.64.Under Section 18 of the Act, a County Education Board is empowered to oversee, in consultation with the County Government, the operation and management of youth polytechnics, pre-primary education including early childhood care and education programmes in the County. It is also supposed to coordinate and monitor education and training in the county on behalf of both the National Government and the County Government.65.Secondly, Section 26(1) of the Basic Education Act bestows upon County Governments the responsibility of ensuring the provision of funds required for the development of necessary infrastructure for institutions of basic education and for conducting pre-primary education. It is therefore clear that pre-primary education management, planning and development was assigned both by the Constitution and the said Act to be a function of County Governments. The law has however not specifically granted County Governments any responsibility over registration of teachers. Its mandate in that regard is limited to registration and maintenance of a data bank of all education and training institutions within the County as stipulated under Section 18(1)(g) of the Basic Education Act and as regards teachers, the County Education Board is expected, under Section 18(1) (g) of the Act, to collaborate with TSC on teacher management within the County.66.Thirdly, I have seen the ‘Policy Framework for Education’ draft of 11th May 2012, by the Ministry of Education. In Chapter 10, it states at paragraph 10.11 that;The national government shall retain responsibilities for policy, standards and curriculum development, even where implementation is undertaken by the county governments.The intention therefore, supported by law as stated above, is that the National Government has responsibility for policy, standard and curriculum development and a County Government shall then undertake the implementation thereof at its level of Government. To what extent should TSC therefore get involved in pre-primary education?67.In answer thereto, to that above, I am aware of the provisions of Article 252(1) (d) which prescribe the functions and the exercise of power by a constitutional commission through prescribed legislation as follows; 252(1) Each Commission, and each holder of an independent office- (a)… (b)…. (c )… (d) May perform any function and exercise any powers prescribed by legislation, in addition to the function and powers conferred by this Constitution.”68.Accordingly, the TSC Act was enacted in pursuance of the foregoing provision in order to make further provisions for the functions of the TSC. Under Section 11 of that Act, TSC shall;a.formulate policies to achieve its mandateb.provide strategic directions, leadership and oversight to the secretariatc.ensure that teachers comply with the teaching standards prescribed by the Commission under the Actd.manage the payroll of teachers in its employmente.facilitate career progressions and professional development for teachers in the teaching service including the appointment of head teachers and principals”.69.It must be remembered in the above context that among the functions of the TSC, relevant to this Petition, is the registration of trained teachers and recruitment of registered teachers. Section 23 of the TSC Act has then made provision for registration of teachers and in essence, it bars any person from undertaking the teaching practice unless that person is registered as a teacher by the TSC.71.It is also within the power of TSC under Article 237(2)(b) to recruit registered teachers and in my view, the principles of distinctiveness and inter-dependence must be applied so as to ensure cooperation and mutual existence of the two levels of Government. TSC is therefore the only body that can employ teachers with regard to institutions contemplated to be within the mandate of the National Government under Sections 15 and 16 of Part I of the Fourth Schedule.72.However, the same cannot be said in regard to the County Government level. I say so because, pre-primary education is a function of the County Governments and being such a function, the County Government is responsible for developing and maintaining the infrastructure and providing learning materials.73.As regards the human resource, that is, teachers, the County Governments would also be responsible for recruiting them within its functions as set out above. Indeed Mr. Opiyo, the Secretary General of the 49th Interested Party deponed that recently, TSC started registering trained ECE teachers and I therefore do not find any difficulties if the County Governments were to recruit ECE teachers from the pool of those registered as such by the TSC. This would ensure that the teaching standards as set by TSC to maintain quality education are adhered to. The County Government through the County Education Boards should then liaise with TSC, in the spirit of cooperative governance discussed elsewhere above and recruit ECE teachers from those pre-qualified and registered by TSC. Conclusion74.Having found as I have done above, it follows that County Governments have the power to recruit ECE teachers but must do so only from the register of trained registered teachers held by the TSC within its constitutional mandate. However, despite that clear finding, one last issue requires resolution; what happens to the ECE teachers recruited by County Governments prior to this decision? Parties did not address me on the issue but my view is that this is a matter that can be resolved, under the leadership of the TSC but within the confines of my findings above.75.Turning back to the prayers in the Petition therefore, Prayer (a) and (b) seek orders essentially that recruitment of ECE teachers by County Governments is unconstitutional. I have held that County Governments have the specific mandate in all aspect of pre-primary education save registration of teachers which is a function solely reposited in TSC. The prayer as worded must therefore fail but I shall make necessary orders in regard to the latter issue.76.Prayer (c) seeks an order of prohibition to stop the recruitment of ECE teachers by County Governments and it is obvious that the said Prayer cannot be granted in view of my findings above.77.On any other relief to be granted, I have stated that ECE teachers recruited by County Governments prior to this decision would require that TSC, working with County Governments, should regularize their appointment within the law.” 30.Turning to the facts and prayers in this Petition, the parties are different yes, from those in Petition 127 of 2014. However, the main issue for determination is whether Early Childhood Education (ECE) teachers are subject to the Teachers Service Commission (TSC) under the Constitution and therefore cannot lawfully be recruited, disciplined or remunerated by county governments. 31.The present Petitioner is asking this Court to affirm that ECE teachers fall under TSC’s exclusive mandate and to strike down Section 38 of the ECE Act 2021 that currently allows counties to recruit the said teacher. 32.I have taken the liberty of searching the referenced decision rendered in Nairobi High Court vide Constitutional Petition No. 127 of 2014: Kenya National Union of Teachers vs. Attorney General and 3 others from the Kenya Law Reports, and reproducing a substantial part of the determination by the learned Judge, since the Respondents did not annex the said decision for the Court’s reference. The decision is however reported on Kenya Law and is therefore in the public domain. 33.I have reproduced most parts of the aforesaid decision and no doubt, although section 38 of the Early Childhood Education Act was not in place when the aforesaid decision was rendered, I find and hold that the section 38 does give full effect to the decision rendered by Lenaola J (as he then was) in the KNUT case as extensively reproduced herein above. 34.This Court cannot, therefore, embark on another journey that will have the effect of reviewing that decision just because, now we have a different petitioner challenging a section of the law which, had it been in force by the time that the earlier decision was made, the Court, faced with the same petition, would have either declared or declined to declare the section to be unconstitutional. 35.The Petitioner in the judgment of 4 November 2016 was the Kenya National Union of Teachers and at paragraph 1 of the judgment, the learned Judge stated:“1.This Petition seeks an interpretation as to whether the recruitment and employment of ECE teachers by County Governments is a violation of Articles 237 and 252 of the Constitution and Section 9 of Part II of the Fourth Schedule to the Constitution. “ 36.At paragraph 13, the Court reproduced the reliefs sought in the Petition as follows:13.The Petitioner therefore seeks the following orders in its Petition dated 20th March 2014;a.A declaration under Article 165(d) of the Constitution that the recruitment and employment of early childhood education teachers by county governments is unconstitutional, null and void.b.A declaration that it is only the Teachers Service Commission that has the constitutional and legal mandate to recruit, appoint and employ all teachers including early childhood education teachers.c.An order of prohibition to issue prohibiting all county governments either by themselves or through their servants, agents, officers or employees, from in any way recruiting, appointing or employing teachers, including early childhood education teachers.d.Such other and/or further relief as this Honourable Court may deem fit and just to grant.e.The costs of and occasioned by this Petition be provided for. 37.In the instant Petition, the Petitioner’s case is centered on Section 38 of the Early Childhood Education Act 2021, which section, he argues, was enacted six years after the above Kenya National Union of Teachers v Attorney General & 4 others [supra] case. 38.Although the earlier Petition by the Kenya National Union of Teachers (KNUT) was broader, challenging county governments’ practice of employing ECE teachers before the 2021 Act was passed, both petitions urge this same Court to declare that only TSC has the constitutional mandate to recruit, employ, assign and discipline ECE teachers, thereby, essentially, barring counties from recruiting ECE teachers. 39.From the said judgement rendered by Lenaola J. (as he then was) and delivered by EM Muriithi J., the constitutional question whether County Governments have the mandate to recruit Early Childhood Education (ECE) teachers was conclusively determined. 40.In that decision, the High Court addressed the same controversy of whether the recruitment of ECE teachers by County Governments usurps the constitutional mandate of the Teachers Service Commission under Articles 235 and 237 of the Constitution. The Court rendered a final judgment on the merits, thereby settling the issue. 41.The instant Petition also seeks similar declarations and reliefs, amounting to a re‑litigation of matters already adjudicated upon and is therefore res judicata within the meaning of Section 7 of the Civil Procedure Act. 42.The doctrine of res judicata is grounded in the principle of finality of litigation, which prevents parties from re‑litigating issues that have already been conclusively determined by a competent court, expecting a different finding. 43.As affirmed by the Supreme Court in John Florence Maritime Services Ltd v Cabinet Secretary for Transport & Infrastructure & Others (supra), res judicata applies not only to matters directly decided but also to those matters that ought to have been raised in the earlier proceedings. In this case, the issues raised in both petitions are the same. 44.The doctrine applies to constitutional petitions just as it does to other ordinary suits governed by the Civil Procedure Act, among others. In Okiya Omtatah Okoiti v Attorney General & another [2022] KEHC 2443 (KLR), the Court, citing John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR stated:34.In the end, the Court found that the doctrine, rightly so, applies to constitutional Petitions. This is what the Court partly stated: -81.We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively………82.If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of Article 159 of the Constitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further Article 50 on right to fair hearing and Article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other.35.The Apex Court went ahead and rendered itself on the threshold for proving the applicability of the doctrine. The Court stated as follows: -(86)We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:a)There is a former Judgment or order which was final;b)The Judgment or order was on merit;c)The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd)There must be between the first and the second action identical parties, subject matter and cause of action36.On the commonality of the parties, the Court noted as follows: -(93)The commonality is that the Appellants herein and the Applicants in Jr 130 of 2011 were persons, juridical and natural, engaged in the business of clearing and forwarding of goods for various importers of goods destined to the Democratic Republic of Congo. They have the same interests and therefore the raise the complaints regarding the two certificates, FERI & COD. The answer is in the affirmative and we find we cannot fault the High Court or the Court of Appeal for concluding as such.” 45.The KNUT case was a constitutional petition, just as the present petition. The commonality of the parties is that the petitioners in both cases act in the public interest and they seek substantially the same remedies. All the other elements set out in the John Florence case are present in this case. Therefore, allowing the present Petition to proceed on merit, particularly where it has not been shown that there is any practice which is undermining the judgment of the Court in the above stated KNUT decision, would be to undermine the principle of finality of litigation and to open the door to duplicative litigation on a question already settled by a court of competent concurrent jurisdiction. 46.Consequently, I find merit in the Preliminary Objection dated 14th April 2026 and I hereby uphold it. The Petition dated 27th October 2025 is hereby struck out for being res judicata the decision in Kenya National Union of Teachers v Attorney General & 4 others [2016] KEHC 8205 (KLR). 47.I make no orders as to costs. 48.This file is closed. DATED, SIGNED & DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF AUGUST, 2026R.E. ABURILIJUDGE