[2022] KEELRC 419 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

PETITION NO. E065 OF 2021.

MR. OTIENO GEORGE......................................................1ST PETITIONER

MR. ASMAN SULEIMAN...................................................2ND PETITIONER

VERSUS

SPEAKER, HOMABAY COUNTY .ASSEMBLY............1ST RESPONDENT

HOMABAY COUNTY ASSEMBLY

SERVICE BOARD.............................................................2ND RESPONDENT

HON. JEPH ONGORO....................................................3RD RESPONDENT

HON. RICHARD OGINDO.............................................4TH RESPONDENT

ORANGE DEMOCRATIC MOVEMENT.....................5TH RESPONDENT

RULING.

1. The Firm of Obiero & Associates Advocates filed a Notice of Preliminary Objection for the 3rd and 4th Respondent, contending that this suit is res judicata as it offends the provisions of Section 7 of the Civil Procedure Act. It is their further assertion that the entire content of the instant petition, is directly and substantially in issue in Petition No. E027 OF 2021,which was adjudicated upon and a Judgment delivered by a court of competent jurisdiction.

2. Mr. Obiero for the 3rd and 4th Respondents further states thatPetition No. E027 OF 2021was struck out for being res judicata against JR. No. 5 of 2020, which was filled by the same parties against the same Respondents. Counsel further argues that the issues raised in paragraphs 14 to 22 of the instant petition, concern the capacity/ability or lack thereof of the 3rd and 4th Respondents to seat in the Board of the 2nd Respondent, and which are the same issues that were raised in the previous suits.

3. It is further submitted that prayers 1-4 in this petition are similar to those sought against the 3rd and 4th Respondent in the suit referred to earlier and which were substantially heard and determined. It is further submitted that the current suit seeks to protect the interests of one Micheal Onyangi and Peter Juma, similar with the previous suits. The Respondents cited the case of Pangaea Holdings LLC & another v Hacienda Development Ltd & 2 others [2020] eKLRfor the holding that matters are meant to come to finality and that is the rationale for Section 7 of the Civil Procedure Act.

4. The Petitioners and the 1st and 2nd Respondents were absent during the hearing of the Preliminary Objection. The date was taken in the presence of Counsel for the 1st and 2nd Respondents, while the Petitioners did attend court for two consecutive times when the matter was in court, despite service.

5. The Petitioners however opposed the Preliminary Objection vide a reply sworn by Asman Suleiman on 17th February, 2022. It is the Petitioners’ argument that the parties in the two petitions are different, and further that they cannot be estopped from suing a specific party on the premise that he had been sued in another matter.

6. It is the Petitioners’ position that the prayers in the previous suits are different from those in this petition. They further aver that Petition No. E027 of 2021, sought the determination of the legality of constitution of the Homabay County Assembly Service Board, while the current petition, concerns the appointment of a new Clerk by an illegally constituted Board.

Determination

7. I have considered the Objection, the submissions of the Counsel for the 3rd and 4th Respondents and the response filed by the Petitioners. Section 7 of the Civil Procedure Act states:

“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.”The Court of Appeal further pronounced itself on Section 7 in the case of Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others (2017) eKLRwhere it set out the elements that must be satisfied for the bar of res judicata to be effectively raised and upheld in the following words:

“a. the suit or issue was directly and subsequently in issue in the former suit.

b. the former suit was between the same parties or parties under whom they or any of them claim.

c. those parties were litigating under the same title

d. the issue was heard and finally determined in the former suit.

e. the court that formally heard and determined the issue was competent to try the subsequent suit in which the issue is raised.”

8. Petition No. E027 of 2021 was lodged by a Hon. Michael Nyangiand Hon. Peter Juma Owuor, against the same Respondents as those in the current petition. Their contention was that the County Assembly Service Board was unlawfully constituted, and that it lacked jurisdiction to revoke their nomination as members of the Board. They further argued that the nomination of Hon. Richard Ogindo and Hon. Jeff Ongoro as members of the Board was contrary to court orders that were in force then.

9. The Petitioners in the current petition seek order that 2nd Respondent composed of the 3rd and 4th Respondents contravened the law as they were admitted to the Board through means not provided for by law; a declaration that the 2nd Respondent composed of the 3rd and 4th Respondents is unlawfully created thus annulling all decisions they have made since assumption of office; an order of Prohibition to restrain the 3rd and 4th Respondents from purporting to carry on, or executing the functions of members of the 2nd Respondent.

10. Although the current petition was originally disguised as one against the recruitment of the Clerk of Homabay County Assembly, there is no reference in the main petition to the recruitment, and no orders have been sought in the main petition against the said recruitment.

11. As correctly submitted by Counsel for the 3rd and 4th Respondents, though the Petitioners in this petition are different, there is no doubt that the issues in this petition were directly and substantially in issue in Petition No. E027 of 2021 and JR. No. 5 of 2020, where Petition No. E027 of 2021, was declared res Judicata on the basis of a judgment delivered in JR. No. 5 of 2020. Further, by dint of the judgment in JR. No. 5 of 2020, it follows that the issues were heard and finally determined in that former suit, not to mention that the court that rendered the judgment, was competent so to do.

12. In sum, I find and hold that Petition No. E065 of 2021, offends Section 7 of the Civil Procedure Act, and is hereby declared res Judicata for the reasons foregone.

13. The Petition is struck out with costs to the Respondents.

14. Orders accordingly.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT ATKISUMU THIS 30TH DAY OF MARCH, 2022.

CHRISTINE N. BAARI

JUDGE

Appearance:

N/A for the Petitioners

N/A for the 1st & 2nd Respondents

Mr. Otieno Obiero Present for 3rd & 4th Respondents

MS. Christine Omollo - Court Assistant.