[2023] KEELRC 576 (KLR)

Mokua & 171 others v Nyamira County Public Service Board (Employment and Labour Relations Petition E013 of 2022) [2023] KEELRC 576 (KLR) (8 March 2023) (Ruling)

Neutral citation: [2023] KEELRC 576 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Employment and Labour Relations Petition E013 of 2022

S Radido, J

March 8, 2023

Between

Jane Wambui Mokua

1st Petitioner

Jescah Kerubo Arama

2nd Petitioner

Irene Moraa Guto

3rd Petitioner

Benard Mose

4th Petitioner

James Mose

5th Petitioner

Naomi Nyasaina Nyaore

6th Petitioner

Gladys Nyambeki Momanyi

7th Petitioner

Mildred Moraa Monyancha

8th Petitioner

Bildad Mayogi

9th Petitioner

Janet Kerubo Kaba

10th Petitioner

Margaret Nyasengo

11th Petitioner

Grace Kwamboka Ondiere

12th Petitioner

Domnic Amboga Nyakundi

13th Petitioner

Duke Rombin Samson

14th Petitioner

Gladys Nyanduko Nyang Auj

15th Petitioner

Bonface Oltrevor Ongwae

16th Petitioner

Felister Basweti Okoti

17th Petitioner

Alice Omoro

18th Petitioner

Jerusha Mokamba

19th Petitioner

Ondigo Moraa Priscilla

20th Petitioner

Sophia Kerubo Nyanumba

21st Petitioner

Damaris Omwoyo

22nd Petitioner

and

Josephat Keng' ara Yogoo

Exparte

and

Peter Nyandega Mokaya

1st Petitioner

Grace Bosibori Onsomu

2nd Petitioner

Benard Simba

3rd Petitioner

Everline Kwamboka Omari

4th Petitioner

Douglas Bosire

5th Petitioner

Drucilla Moraa Moturi

6th Petitioner

Wycliffe Morwani Osoro

7th Petitioner

Phanice Kenyansa Mauti

8th Petitioner

Hudson Nyamwamu Nyaribo

9th Petitioner

Hannah Waithera Mwangi

10th Petitioner

Margret Kemunto Nyang'auj

11th Petitioner

Priscillah Moraa Maina

12th Petitioner

Isabella Mong' are

13th Petitioner

Valeria Kerubo Mainye

14th Petitioner

Perpetua Moraa Ogato

15th Petitioner

Lydia Boyani Mayaka

16th Petitioner

Eunice Kerubo Nyabando

17th Petitioner

Everline Makana

18th Petitioner

Gladys Arisa

19th Petitioner

Benson Onkoba Mogaka

20th Petitioner

Lilian Moige

21st Petitioner

Ruth Moraa Otaro

22nd Petitioner

Lulu Mabuka

23rd Petitioner

Judith Bosibori Omariba

24th Petitioner

Everlyne Nyaboke Ogweche

25th Petitioner

Denis Oimbo

26th Petitioner

Loise Kemunto Nyauma

27th Petitioner

Winfrida Moraa Nyang' au

28th Petitioner

Birita Mokeira Osoro

29th Petitioner

Nelly Kerubo Kennedy

30th Petitioner

Enock Nyaribo Onyancha

31st Petitioner

Lydia Bwari Makori

32nd Petitioner

Jackson Gichana

33rd Petitioner

Esther Nyaboe Moriasi

34th Petitioner

Ronald Nyabwari Sossy

35th Petitioner

Zacharia Kerosi Sindiga

36th Petitioner

Lilian Kemunto Omete

37th Petitioner

Grace Moraa Nyantika

38th Petitioner

Abigael Manoti

39th Petitioner

James Mokaya

40th Petitioner

Edinah Onyancha

41st Petitioner

Vincent Moindi

42nd Petitioner

Dorcas Abuga

43rd Petitioner

Alphaxard Magere

44th Petitioner

Fridah Nyamoita Oroko

45th Petitioner

Mellen Manoti

46th Petitioner

Duke Monyancha

47th Petitioner

Kennedy Omaore Omariba

48th Petitioner

Nancy Kwamboka Ongeri

49th Petitioner

Olive Nyanchama Nyachiro

50th Petitioner

Charles Langat

51st Petitioner

Catherine Magara

52nd Petitioner

Sally Nyamokami Nyabayo

53rd Petitioner

Abel Ogao

54th Petitioner

Norah Mokaya

55th Petitioner

Vane Moraa Nyamache

56th Petitioner

Dorcas Kioi

57th Petitioner

Samwel Njagi

58th Petitioner

Davis Kiage Mageto

59th Petitioner

Betty Nyamoita Nyakundi

60th Petitioner

Evans Ontiro Mayaka

61st Petitioner

Cyprine Moraa Moindi

62nd Petitioner

Irine Nyaringo

63rd Petitioner

Annette Moraa

64th Petitioner

Lydia Kiriago

65th Petitioner

Eric Memba

66th Petitioner

Dismas Michieka

67th Petitioner

Mary Nyangau

68th Petitioner

Jackline Moraa Onchwari

69th Petitioner

Jackline Gekara

70th Petitioner

Catherine Bwari Getonto

71st Petitioner

Edinah Nyarangi Juma

72nd Petitioner

Christine Mukami Nyagah

73rd Petitioner

Josiah Abuga

74th Petitioner

Vane Nyangau

75th Petitioner

Judith M. Okongo

76th Petitioner

Brenda Akinyi Opiyo

77th Petitioner

Juliana Mwende Simon

78th Petitioner

Danvas Omurwa Ogoro

79th Petitioner

Irine Gitenya

80th Petitioner

Mary Liavuli

81st Petitioner

Samson Mariba

82nd Petitioner

Justin Moriasi Moriassi

83rd Petitioner

Emma Moraa Moriasi

84th Petitioner

Diana Babu

85th Petitioner

Peristers Nyamota

86th Petitioner

Gladys Nyaenya

87th Petitioner

Lucy Onyancha

88th Petitioner

Mauline Nyamusi Mose

89th Petitioner

Hellen Gichana

90th Petitioner

Agneta Monte

91st Petitioner

Justine Nyambane

92nd Petitioner

Eunice Obong'o

93rd Petitioner

Scola John

94th Petitioner

Lukas Amisi

95th Petitioner

Conceptor Nyangi

96th Petitioner

Lilian Kaneba

97th Petitioner

Evans Monantia Ombasa

98th Petitioner

Josephine Muthoni Yabesh

99th Petitioner

Rodgers Mwangi

100th Petitioner

Sophia Nyanganyi Bundi

101st Petitioner

Mary Nyabonyi Okioga

102nd Petitioner

Richard Onduso Nyamosi

103rd Petitioner

Innocent Nyakundii

104th Petitioner

Abigael Motabori Nyambati

105th Petitioner

Lucy Sendi

106th Petitioner

Elizabeth Kerubo Nyamao

107th Petitioner

Naomi Nyaboke Mainye

108th Petitioner

Hellen Ombwori

109th Petitioner

Jane Kemunto Ogero

110th Petitioner

Mary Ichwara

111th Petitioner

Robinson Mokaya Abuya.

112th Petitioner

Juma Kemunto Bathsebaa

113th Petitioner

Daisy Nyangweso Omwegaa

114th Petitioner

Johnstone Okiogi Mose

115th Petitioner

Eric Okero Nyaega

116th Petitioner

Justus Ondimu

117th Petitioner

Loice Keraita

118th Petitioner

Zalima Kemunto Nyamwaro

119th Petitioner

Linet Kemunto Makori

120th Petitioner

Jane Kwamboka Omwoyo

121st Petitioner

Jerusha Nyaruri

122nd Petitioner

Linet Onyancha Makori

123rd Petitioner

Ruth Momanyi

124th Petitioner

Verah Temu

125th Petitioner

Faith Kerubo Omwoyo

126th Petitioner

Charles Mokamba

127th Petitioner

Mary Moraa Mangera

128th Petitioner

Lydia Kerubo Masaki

129th Petitioner

Jane Wambui Mokua

130th Petitioner

Aniel Kibet Kibor

131st Petitioner

Edinah Gechemba Maengwe

132nd Petitioner

Agneta Kwamboka Agwata

133rd Petitioner

Teresia Nyakerario Nyakundi

134th Petitioner

Zipporah Nyanduko

135th Petitioner

Leah Sikoya Muliro

136th Petitioner

Erick Obwogo Anasi

137th Petitioner

Catherine Muthoni

138th Petitioner

Fredrick Andika Ochango

139th Petitioner

Vanice Kwamboka Kerina

140th Petitioner

Pauline Njoki

141st Petitioner

Paul Omwono

142nd Petitioner

Eric Chweya Maraga

143rd Petitioner

Lydia Manoti Bwana

144th Petitioner

Boniface Momanyi Guto

145th Petitioner

Evelyne Ayiera

146th Petitioner

Julius Nyang'au

147th Petitioner

Esther Monyangi Agonya

148th Petitioner

Maoline Nyasimi

149th Petitioner

and

Nyamira County Public Service Board

Respondent

Ruling

1. The 172 petitioners sued the county public service board, Nyamira (the board) before the court sitting in Kericho on May 10, 2022, alleging breach of contract (failure to implement the terms of a return-to-work formula entered into by the Kenya National Union of Nurses and the County Government of Nyamira on August 7, 2018).

2. When the petition was placed before the court on September 21, 2022, it declined territorial jurisdiction and directed that it be transferred to this court.

3. On October 18, 2022, the board filed a notice of preliminary objection.

4. However, it was only on February 6, 2023 that the petition was placed before this court.

5. During the session, the court directed the board to file and serve a fresh preliminary objection together with submissions before February 20, 2023, and the petitioners to file their submissions before March 6, 2023.

6. The respondent filed the fresh notice of preliminary objection and submissions on February 17, 2023.

7. In the objection, the respondents contended:'Take notice that the respondent will at the hearing of the petition /application or any other date as the same shall be adjourned to raise a preliminary point of law to be determined in imine that the petition/application and the entire petition be struck out and dismissed with costs for the following reasons:i.That the petition is res judicata the same having been determined vide Kisumu ELRC Cause No 29 of 2019, Kenya National Union of Nurses v Nyamira County Public Service Board.ii.That this court does not have jurisdiction under the provision of article 234(2) of theConstitution, section 87(2) of the Public Service Commission Act and section 77(2) of the County Governments Act.iii.The petition is an abuse of the court process and a non-starter.iv.The petition does not expressly disclose any infringement in the return-to-work agreement (formula) since parties are both a stranger to it.v.The petition does not disclose any infringement of fundamental right to any of the petitioner by the respondent.vi.The petition filed herein discloses a purely ordinary civil dispute and has no constitutional issues and is an abuse of the court process.'

8. The petitioners submissions were filed on March 6, 2023.

9. The court has considered all the materials placed before it.

Res judicata 10. The Kenya National Union of Nurses sued the board in Kisumu Cause No 29 of 2019, Kenya National Union of Nurses v County Public Service Board, Nyamira.

11. The union stated the issues in dispute in the cause as:i.Withheld salaries for July and August 2018. ii.Breach of the return to work agreement.

12. The court heard the cause on the merits and in a judgment delivered on November 19, 2021, found it without merit. The cause was dismissed.

13. The instant petition is grounded on the same return-to-work formula which was the subject of litigation and which litigation was determined.

14. It is not open to the petitioners to now disown the litigation which was advanced on their behalf by the union and file the petition in their individual capacities.

15. Such a course of action is forbidden by the doctrine of res judicata and the court, therefore, upholds this ground of the notice of preliminary objection.

Abuse of the court process 16. The petitioners should have or ought to have known about the litigation commenced by the union on their behalf. They failed to make a disclosure of such previous litigation in the petition.

17. It is also noteworthy that the petitioners approached the court sitting in Kericho and not in Kisumu which has territorial jurisdiction. The decision to move the Court in Kericho could not have been inadvertent or a coincidence.

18. The court finds the petition an abuse of the court process.

Alternative dispute resolution Labour Relations Act 19. The return-to-work formula upon which the petition is anchored was entered into between the Kenya National Union of Nurses on behalf of the petitioners and the County Government of Nyamira.

20. The failure by the County Government to implement the terms of the return-to-work formula constituted a trade dispute as contemplated by section 2 of the Labour Relations Act.

21. By dint of part VIII and more particularly section 62 of the Labour Relations Act and the recognition agreement between the union and the county government, the trade dispute should have been reported to the Cabinet Secretary, Labour and taken through conciliation.

Public service commission 22. The instant dispute concerns terms and conditions of service and alleged breach thereof by the respondents.

23. Article 234(2)(i) of theConstitution as read with section 77(2) of the County Governments Act and section 87(2) of the Public service commission Act demand that disputes arising from contracts of service with respect to terms and conditions of service should be channelled to the Public service Commission of Kenya.

24. The petitioners herein did not demonstrate that they had exhausted the appellate procedures set out in the aforesaid legal framework.

25. The petition was, therefore, also filed prematurely.

Conclusion and orders 26. The court not only finds the petition res judicata but an abuse of the court process and premature. It is struck out with costs to the respondent.

DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 8TH DAY OF MARCH 2023. Radido Stephen, MCIArbJudgeAppearancesFor Petitioners Chimei & Co. AdvocatesFor Respondent Abincha Mogambi Advocate, County Public Service Board NyamiraCourt Assistant Chrispo Aura