[2016] KEELRC 1735 (KLR)
The court found that although the petitioners failed to disclose the existence of a previous suit (Petition No. 10 of 2015) concerning the same subject matter, that suit had been withdrawn after the transfers were rescinded and was not heard and determined on its merits. Therefore, the doctrine of res judicata did...
Source-derived case information.
- Citation
- [2016] KEELRC 1735 (KLR)
- Parties
- Applicant: P.C. Samwel Njega, Sgt Peter Barasa Machi, Cpl Jackson Kisoi, Cpl Francis Okungu, Cpl (W) Margaret Kerubo, Cpl (W) Ruth Ndinda, Cpl Chrispine Odhiambo Owuor, PC John Bosco Kyalo, PC Suleiman Omari, PC Martin Kimaru, Hussein Guyo, Alex Orina, PC Evans Maranga, PC David Murugu Kanyua, PC David Nderitu, PC/W/D Susan Kigonye, PC Joshua Mwaka, PC (R) Elkana Mweri Mure, PC (R) Kitur Kiplang’at, PC (R) Julius Wamwea Muriuki, PC (W) Roselyn Kawira, PC (W) Jackline Obonyo; Respondent: The Inspector General of Police; Respondent: The National Police Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Petition 66 of 2015
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed; petition to proceed to hearing on merits
- Legal Topics
- Public Service Transfers, Procedural Fairness, Jurisdictional Objections
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
P.C. Samwel Njega, Sgt Peter Barasa Machi, Cpl Jackson Kisoi, Cpl Francis Okungu, Cpl (W) Margaret Kerubo, Cpl (W) Ruth Ndinda, Cpl Chrispine Odhiambo Owuor, PC John Bosco Kyalo, PC Suleiman Omari, PC Martin Kimaru, Hussein Guyo, Alex Orina, PC Evans Maranga, PC David Murugu Kanyua, PC David Nderitu, PC/W/D Susan Kigonye, PC Joshua Mwaka, PC (R) Elkana Mweri Mure, PC (R) Kitur Kiplang’at, PC (R) Julius Wamwea Muriuki, PC (W) Roselyn Kawira, PC (W) Jackline Obonyo
Applicant
The Inspector General of Police
Respondent
The National Police Service Commission
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the petition is barred by the doctrine of res judicata due to previous proceedings on the same subject matter.
- 2 Whether the petitioners failed to disclose material facts regarding prior litigation.
- 3 Whether the preliminary objection raised by the respondents is sustainable.
Ratio Decidendi
The court found that although the petitioners failed to disclose the existence of a previous suit (Petition No. 10 of 2015) concerning the same subject matter, that suit had been withdrawn after the transfers were rescinded and was not heard and determined on its merits. Therefore, the doctrine of res judicata did not apply. The authorities cited by the respondents were not relevant to the facts at hand. As a result, the preliminary objection was not upheld, and the petition was allowed to proceed to hearing on its merits.
Court Disposition
preliminary objection dismissed; petition to proceed to hearing on merits
Orders
- The preliminary objection is not upheld.
- The petition may proceed to hearing on merits.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
PETITION NO. 66 OF 2015
P.C. SAMWEL NJEGA
SGT PETER BARASA MACHI
CPL JACKSON KISOI
CPL FRANCIS OKUNGU
CPL (W) MARGARET KERUBO
CPL (W) RUTH NDINDA
CPL CHRISPINE ODHIAMBO OWUOR
PC JOHN BOSCO KYALO
PC SULEIMAN OMARI
PC MARTIN KIMARU
HUSSEIN GUYO
ALEX ORINA
PC EVANS MARANGA
PC DAVID MURUGU KANYUA
PC DAVID NDERITU
PC/W/D SUSAN KIGONYE
PC JOSHUA MWAKA
PC (R) ELKANA MWERI MURE
PC (R) KITUR KIPLANG’AT
PC (R) JULIUS WAMWEA MURIUKI
PC (W) ROSELYN KAWIRA
PC (W) JACKLINE OBONYO.......................................PETITIONERS/APPLICANTS
VERSUS
THE INSPECTOR GENERAL OF POLICE......................................1ST RESPONDENT
THE NATIONAL POLICE SERVICE COMMISSION.....................2ND RESPONDENT
RULING ON PRELIMINARY OBJECTION
1. The 2nd respondent filed a preliminary objection to the petition filed on 4th August 2015 by 22 petitioners / applicants, being traffic police officers stationed at Kabete Police Station.
2. The petitioners seek to stop their deployment and transfer to various other stations within the Republic of Kenya by the Inspector General of Police (1st respondent) and the National Police Service Commission (2nd respondent).
3. The petitioners were transferred vide a police signal dated 30th July 2015.
4. They allege the transfers were arbitrary and without following established procedure. That same were triggered by other extraneous considerations and 2nd respondent did not participate in their transfer. The petitioners were required to report to their new postings on 7th August 2015. That it is the 2nd respondent who has the authority to transfer and not the 1st respondent.
5. That if temporary orders are not granted the suit will be rendered nugatory. Interim orders were not granted at the exparte stage.
Determination
6. It has been demonstrated by the respondents that the issue in dispute in this petition was the subject of Employment and Labour Relations Court, at Nairobi, Petition No. 10 of 2015. Following that suit, the transfers were rescinded on 18th March 2015 and the suit was withdrawn before Justice Nzioki wa Makau on 20th April 2015 the grievances of the petitioners having been addressed.
7. That the petitioners did not disclose these material facts to the court in the papers filed. However, going by the submissions by the respondents, Petition No. 10 of 2015, was withdrawn by the petitioners and not heard and determined and therefore the plea of resjudicatadoes not arise at all.
8. The authorities cited by the respondents are not on point.
9. The preliminary objection is not upheld with the result that the petition may proceed to hearing on merits.
Dated and Delivered at Nairobi this 5th day of February 2016.
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE