https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2163

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISII** **CAUSE NO. E025 OF 2025** JACKLYNE BOSIBORI OTUNDO..............................................**CLAIMANT** **VERSUS** ROBERT M. OMBASA ACTING COUNTY SECRETARY KISII COUNTY GOVERNMENT...……....…………….**1ST RESPONDENT** KISII COUNTY GOVERNMENT…………..………….**2ND RESPONDENT** KISII COUNTY PUBLIC SERVICE BOARD…………..**3RD RESPONDENT** PUBLIC SERVICE COMMISSION…………………….**4TH RESPONDENT** **RULING** 1. Before court are two Preliminary Objections challenging the competency of this suit. The first, dated 4th March 2026, was filed by the 4th Respondent, while the second, dated 23rd March 2026, was filed by the 1st, 2nd and 3rd Respondents. In its objection, the 4th Respondent contends that this court lacks jurisdiction by virtue of sections 87(2) and 88(1) of the Public Service Commission Act and sections 7(1) and 9(1) of the Fair Administrative Action Act. It argues that the Claimant violated the doctrine of exhaustion by failing to seek a review before the Public Service Commission prior to instituting these proceedings. It further contends that the Claimant failed to commence judicial review proceedings as contemplated under sections 7(1) and 9(1) of the Fair Administrative Action Act, thereby rendering the claim incompetent. 2. The 1st, 2nd and 3rd Respondents, on the other hand, contend that the suit is barred by the doctrine of *res judicata*. They argue that the issues raised herein were conclusively determined in County Appeal No. 061 of 2024, involving the same parties, and that the decision has neither been reviewed nor set aside. Consequently, they assert that entertaining the claim would amount to an abuse of the court process and therefore urge the court to strike it out pursuant to section 7 of the Civil Procedure Act. 3. The Preliminary Objections were canvassed by way of written submissions. 4th Respondent’s Submissions 1. The 4th Respondent submits that the Claimant's failure to apply for a review of the Public Service Commission's decision contravenes sections 87(2) and 88(1) of the Public Service Commission Act, which bar parties from instituting court proceedings before exhausting the dispute resolution mechanisms established under the Act. It therefore asserts that this court lacks jurisdiction and while relying on **Owners of the Motor Vessel "Lillian S" *v* Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR)** and **Samuel Kamau Macharia *&* another *v* Kenya Commercial Bank Limited *&* 2 others [2012] eKLR**, submits that jurisdiction is derived solely from the Constitution or statute and that, once questioned, the court must immediately determine the issue. The 4th Respondent further relies on the case of **Geoffrey Muthinja Kabiru *&* 2 others *v* Samuel Munga Henry *&* 1756 others [2015] eKLR** and **William Odhiambo Ramogi *&* 3 others *v* Attorney General *&* 4 others; Muslims for Human Rights *&* 2 others (Interested Parties) [2020] eKLR** for the proposition that courts should only be approached after available statutory and administrative dispute resolution mechanisms have been exhausted. It accordingly urges the Court to strike out the claim with costs. 1st, 2nd *&* 3rd Respondent’s Submissions 1. The 1st, 2nd and 3rd Respondents adopt and associate themselves fully with the 4th Respondent’s submissions on the doctrine of exhaustion. On the issue of *res judicata*, they submit that the present claim arises from the Claimant's dismissal from employment, which was the very issue determined in County Appeal No. 061 of 2024. They rely on section 7 of the Civil Procedure Act, which bars courts from hearing matters that have been directly and substantially determined in a previous suit between the same parties. They further cite **Communications Commission of Kenya *&* 5 others *v* Royal Media Services Limited *&* 5 others [2014] eKLR**, where the Supreme Court outlined the essential elements of *res judicata*, namely that the earlier decision must have been rendered by a court of competent jurisdiction; the issues in both proceedings must be directly and substantially the same; and the parties, or those claiming under them, must be the same and litigating under the same title. They also rely on **Independent Electoral and Boundaries Commission *v* Maina Kiai *&* 5 others [2017] eKLR** in support of the same principles. They therefore urge the Court to uphold the Preliminary Objection dated 23rd March 2026 and strike out the suit with costs. Claimant’s Submissions 1. In response to the 4th Respondent's preliminary objection, the Claimant submits that it does not raise a pure point of law capable of disposing of the suit in limine as contemplated in **Mukisa Biscuit Manufacturing Co. Ltd *v* West End Distributors Ltd [1969] EA 696**. She asserts that the objection is founded on disputed factual issues that require evidentiary interrogation and therefore cannot properly be determined as a preliminary objection. 2. On the issues of *res judicata* and exhaustion, the Claimant submits that the present suit does not satisfy the requirements of *res judicata* as set out in the case of **Bernard Mugo Ndegwa *v* James Nderitu Githae *&* 2 others [2010] eKLR**, particularly regarding the identity of parties, sameness of issues, concurrence of jurisdiction and finality of the previous decision. She contends that the parties before this Court are not the same as those who appeared before the Public Service Commission, since only the 1st, 2nd and 3rd Respondents participated in the proceedings before the Commission. Regarding exhaustion, she contends that the use of the word "may" in section 88(1) of the Public Service Commission Act makes an application for review discretionary rather than mandatory. She further maintains that there was no error or omission apparent on the face of the record to warrant a review before the Public Service Commission. In any event, she submits that she complied with the doctrine of exhaustion by lodging an appeal before the Public Service Commission, which was heard and determined. She therefore urges the Court to dismiss both Preliminary Objections with costs. Disposition 1. The preliminary objection by the 4th Respondent is for dismissal. One of the essential elements of *res judicata*, namely that the earlier decision must have been rendered by a court of competent jurisdiction, does not apply to the matter before the Court. It is my finding that the doctrine of *res judicata* does not apply as the matter before the Public Service Commission as was not a suit nor was it before a competent court. It was a reference to an arbitral tribunal or quasi-judicial proceeding which is NOT contemplated as a suit. The decision of the Public Service Commission is amenable to review by this Court at any stage of the proceedings and therefore any determination before the Commission cannot qualify as being sufficient to found a bar under the doctrine of *res judicata*. The objection by the 4th Respondent is therefore dismissed with costs to the Claimant. 2. As regards the second preliminary objection by the 1st, 2nd and 3rd Respondents, the same is on the premise that section 88(1) of the Public Service Commission Act makes an application for review discretionary rather than mandatory. The said section uses the word "may" which means the review before the Public Service Commission is discretionary. The exhaustion doctrine only applies to statutorily mandated process and does not apply where there is a discretionary remedy that can be pursued as opposed to a suit. The issues in the suit herein are legal in nature and thus ought to be decided by the Courts rather than an administrative body such as the Public Service Commission and the same falls under the exemption paradigm of the doctrine of exhaustion. Similarly, the preliminary objection by the 1st, 2nd and 3rd Respondents is not merited. The same fails and is dismissed with costs to the Claimant. 3. Directions will issue immediately upon the delivery of this Ruling on the disposal of the suit herein. It is so ordered. **Dated and delivered at Kisii this 27th day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**