Introduction
1. The Petition dated 21 st June 2023 is supported by affidavits of even date sworn by the Petitioners.
2. This Petition assails the dilatory and reluctant manner the President of the Republic of Kenya failed to act on the recommendation of the Judicial Service Commission regarding the appointment of the Petitioners as Judges of the Environment and Land Court and, the Employment and Labour Relations Court thereby violating the Petitioners constitutional rights and legitimate expectation.
3. The Petitioners thus seek the following reliefs against the Respondent:
a) A declaration that for the period running from 13/08/2019 to 3/6/2021, the President of the Republic of Kenya violated Articles 2, 3, 10, 27, 28, 47, and 166(1)(b) of the Constitution in failing, refusing and neglecting to appoint the Petitioners as Judges of the Environment and Land Court and the Employment and Labour Relations Court for 22 months after they were recommended for such appointment by the Judicial Service Commission.
b) A declaration that the State, through the refusal, failure or neglect by the President of the Republic Kenya to appoint the Petitioners as Judges after they were recommended for appointment by the Judicial Service Commission for the period running from 13/08/2019 to 3/6/2021 violated their fundamental rights and freedoms namely, the right to equal benefit of the law and the full and equal enjoyment of rights as guaranteed by Article 27(1)&(2) of the Constitution, the right to inherent dignity and the right to have that dignity respected and protected as guaranteed by Article 28 of the Constitution, and the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair as guaranteed by Article 47(1) of the Constitution as well as the right to written reasons for administrative action that is likely to adversely affect the rights or fundamental freedoms as guaranteed by Article 47(2) of the Constitution.
c) A declaration that the State through the actions of the President of casting aspersions, without particulars, that the reason why he could not appoint the Petitioners was because they were not fit to hold public office violated the rights of the Petitioners to have their dignity respected and protected in terms of Article 28 of the Constitution.
d) An order for compensation by way of general damages against the Respondent for the violation of Petitioners' rights and constitutional protections specified in prayers (A), (B) and (C) above.
e) An order of compensation by way of exemplary damages against the Respondent for abuse of state power resulting in the violation of Petitioners' rights and constitutional protections specified in prayers (A), (B) and (C) above.
f) An order of compensation by way of special damages as specified in the individual affidavits of the Petitioners accompanying this petition.
g) An order directed at the Respondent to issue a public apology to the Petitioners in such form and manner as shall be specified by the order of this Court for the humiliation, uncertainty and inconvenience caused by the violations of their rights and constitutional protections specified in prayers A, B and C above.
h) Costs of the Petition.
i) Interest of (D), (E) and (F) above at court's rate from the date of Judgment till payment in full .
Petitioners’ Case
4. The Petitioners state that on 13 th August 2019, the Judicial Service Commission (JSC) in line with Article 166(1)(b) of the Constitution, Section 30 of the Judicial Service Act and the First Schedule to the Judicial Service Act, recommended the appointment of the Petitioners as Judges of the Environment and Land Court and the Employment and Labour Relations Court to the President.
5. The Petitioners state that the President in light of Article 166(1)(b) of the Constitution and preceding binding interpretations by the Courts in the matter, had an obligation to appoint the Petitioners in accordance with JSC’s recommendation. They as such had a legitimate expectation owing to this provision, that they would be appointed as Judges.
6. The Petitioners contend that in spite of JSC’s recommendation which was anchored on the Constitution and the relevant provisions of the Statutory law, the President failed, refused and neglected to appoint them for a period of 22 months until 3 rd June 2021. They claim that the President’s refusal had no justification whatsoever and neither was the reason for this failure formally communicated.
7. The Petitioners state that the President’s refusal to appoint them triggered the filing of constitutional Petition - Adrian Kamotho Njenga v Attorney General; Judicial Service Commission & 2 others (Interested Parties) [2020] eKLR , which was filed in public interest by the Petitioner therein. They state that the Court in its Judgment dated 6 th February 2020 held that:
“We find that the President has no mandate to review, reconsider or decline to appoint persons recommended by the 1st Interested Party as judges. We also find that the delay by the President in appointing the persons recommended, is unreasonable and unconstitutional… We therefore allow it and make the following orders, which we consider appropriate:
A declaration be and is hereby issued that the President is constitutionally bound by the recommendation made by the 1st Interested Party in accordance with Article 166(1) as read with Article 172(1)(a) of the Constitution on the persons to be appointed as Judges.
A declaration be and is hereby issued that the President's failure to appoint the persons recommended for appointment as Judges violates the Constitution and the Judicial Service Act.
A declaration be and is hereby issued that the continued delay to appoint the persons recommended as judges of the respective courts is a violation of Articles 2(1), 3(1), 10, 73(1)(a), 131(2)(a), 166(1), 172(1)(a) and 249(2) of the Constitution.”
8. The Petitioners are aggrieved that notwithstanding the above judgment; the President was unyielding. They allege that instead, the President, citing some undisclosed intelligence reports, went ahead to make public remarks which portrayed Petitioners as persons of questionable character that were not fit to hold office as Judges, hence injuring their reputation.
9. The Petitioners contend that the President of failing to appoint them exercised his power in a manner that contravenes Article 2(2) of the Constitution and also, Article 3 and 10. Equally that he denied them the right to equal benefit of the law and enjoyment of their rights under Article 27 of the Constitution. In addition, the act of vilifying them in public on unsubstantiated allegations violated their rights under Article 28 and 47 of the Constitution.
10. The Petitioners contend that the public humiliation and the long period of uncertainty as a result of the President’s conduct caused them loss and damage.
11. The Petitioners aver that they used to work for their respective organizations where they resigned following the JSC recommendation of their appointment as Judges of ELC and ELRC, only to endure 21 months of uncertainty and hardship due to President’s delay and reluctance to make the appointment.
12. The Petitioners have thus, in their individual affidavits, urged that they be compensated by being placed at the remuneration level they would have been had they been appointed as required by the Constitution.
Respondents’ Case
13. In opposition to the Petition, the Respondent filed a Notice of Preliminary Objection dated 26 th January 2024 on the basis that:
i. The Petition is fatally defective in that it offends the express provision of Section 7 of the Civil Procedure Act based on the doctrine of res judicata since the issues raised in the Petition were directly and substantially in issue in Constitutional Petitions No.369 of 2019; Adrian Kamotho Njenga –versus – Attorney General and Others ,Nairobi High Court Constitutional Petition No. 206 of 2020, Katiba Institute – versus – The President of the Republic of Kenya 2 others as well as Nairobi High Court Constitutional Petition No.E196 of 2022 Benjamin Gikenyi -Versus - the Chief Justice of the Republic of Kenya ,Judicial Service Commission &13 others ( Interested Parties) .
ii. The Petition is fatally defective and an abuse of the Court process and runs afoul of the doctrine of sub judice provided for under Section 6 of the Civil Procedure Act in that the matters being canvassed in this Petition are pending determination in the Court of Appeal in Nairobi Civil Appeal Number E088 of 2022; Attorney General -versus – Katiba Institute & 6 others where an order of stay of execution of the judgement in Nairobi High Court Constitutional Petition No. 206 of 2020, Katiba Institute– versus – the President of The Republic of Kenya 2 others has been issued pending the determination of the appeal vide Court of Appeal Civil Application No E365 of 2021 .
iii. The Petition as framed does not raise any constitutional issues for determination and if at all any claim exists; it arises as a matter of an alternative determination of allegations of a breach of contract of employment between the Petitioners and the Judicial Service Commission.
Petitioners’ Submissions
14. Ongoya and Wambola Advocates filed submissions dated 30 th October 2024 on behalf of the Petitioners. On a preliminary note, Counsel underscored that the Respondent had not filed a Replying Affidavit in response to the Petition and thus submitted that the facts as pleaded remained undisputed.
15. On the assertion that the Petition is res judicata, Counsel relied in the principles set out in Independent Electoral & Boundaries Commission v Maina Kiai, Khelef Khalifa, Tirop Kitur, Attorney-General, Katiba Institute & Coalition for Reforms & Democracy [2017] KECA 477 (KLR) by the Court of Appeal as follows:
“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;
(a) The suit or issue was directly and substantially in issue in the former suit.
(b) That 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 formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised…”
16. Counsel submitted that the Respondent’s claim was unfounded as the issues in this Petition were not in issue in the previous petitions and have not been litigated before. In summary, Counsel submitted that the Petitioners issues touch on the loss of remuneration and violation of their constitutional right to dignity owing to the President’s action of casting aspersions without particulars.
17. In addition, the Petitioners herein were not parties in the said suits. Equally, Counsel highlighted that this Petition was filed in a different context, being that, the cited suits were filed prior to the Petitioners appointment, while the instant suit is after their appointment hence the remedies are also distinct.
18. On sub judice, Counsel in like fashion denied this claim stating that the issues and parties in this suit are not similar to those Civil Appeal Number E088 of 2022 . Reliance was placed in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR) where the Supreme Court observed as follows:
“Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter.”
19. On the third objection, Counsel submitted that this Court has jurisdiction to entertain this matter as it raises constitutional issues being, the State’s failure through the President, to act as required by the Constitution and not against the Judiciary as the employer as alleged by the Respondent. Counsel emphasized therefore that this matter is not based on an employer -employee relationship as alleged.
20. To buttress this point reliance was placed in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR where it was held that:
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”
21. Comparable reliance was placed in the Matter of the Interim Independent Electoral Commission (Applicant) [2011] eKLR and Milimani HCCHRPET E311/2023-Honourable Justice Aggrey Muchelule & 5 others v the Honourable Attorney General and Judicial Service Commission .
22. Turning to the Petition, Counsel submitted that the Respondent had not controverted the deponed facts and the Preliminary Objection is unmeritorious, thus are liable for the violations committed against the Petitioners. Reliance was placed in Justice Aggrey Muchelule & 5 others (supra) where it was held that:
“Having considered the pleadings and arguments by parties, the decisions relied on, the constitution and the law, I come to the following conclusions;
First, the President violated the constitution and the petitioners’’ rights and fundamental freedoms. The 1 st to 4 th petitioners were serving Judges. They were recommended for appointment to the Court of Appeal but were not appointed. They were kept waiting for three years. The 5 th and 6 th petitioners were judicial officer and Registrar of the High Court, respectively. They were recommended for appointment to the ELC, but were not appointed for three years, a violation of their legitimate expectation. The petitioners were humiliated, ridiculed and held in contempt following unsubstantiated claims and innuendoes that they were not fit for appointment, despite rigorous interview processes they had gone through.
Second; the petitioners were discriminated against and suffered differential treatment in violation of Article 27 of the Constitution when their colleagues were appointed leaving them without any explanation. This caused the petitioners anxiety, mental and physical anguish. They were considered pariah in the eyes of reasonable members of society which diminished their dignity. Third; the petitioners’ right to fair administrative action was violated contrary to Article 47 as no written reasons were given why they could not be appointed. The petitioners not only lost yearly increment but also pecking order in their respective courts…”
23. Counsel further submitted that the Petitioners are entitled to general, aggravated and special damages. On general damages, Counsel submitted that this Court should award Ksh.15,000,000.00 to each Petitioner. Reliance was equally placed in Justice Aggrey Muchelule & 5 others (supra) where it was noted as follows:
“86. When considering the level of damages to award, the position adumbrated by Patterson JA in Fuller v A-G of Jamaica (Civil Appeal 91/1995, unreported) is helpful. He stated: Where an award of monetary compensation is appropriate, the crucial question must be what is a reasonable amount in the circumstances of the particular case. The infringement should be viewed in its true perspective as an infringement of the sacrosanct fundamental rights and freedoms of the individual and a breach of the supreme law of the land by the state itself. But that does not mean that the infringement should be blown out of all proportion to reality nor does it mean that it should be trivialized…In Peter M. Kariuki v Attorney General [2014] eKLR, the Court of Appeal awarded Kshs. 15,000,000 general damages for violation of constitutional rights. 88. Taking these awards into account, the nature of violations by the holder of the highest office in the land and considering the level of inflation, an award of Kshs. 15,000,000 general damages for each petitioner, is fair and reasonable…”
24. On exemplary and punitive damages, Counsel submitted that abuse of power by the President in failing to appoint the Petitioners entitles them to this award to the tune of Ksh.5,000,000. Parallel dependence was placed in Justice Aggrey Muchelule & 5 others (supra) where it was held that:
“There can be no greater public interest than defending the constitution and upholding the rule of law and human rights, as founding values in Article 10 of the constitution. The President’s constitutional transgression has to be frowned upon and discouraged. The AG must also be called out for failing to uphold Article 156(6) of the constitution. The only way to do so, is to award exemplary damages. Taking into account what the petitioners went through during the three years’ wait; the discrimination they endured when their colleagues were appointed; the lost pecking order and salary increase, I consider an award of Kshs. 5,000,000 exemplary damages for each petitioner reasonable in the circumstances of this case…”
25. On special damages, Counsel submitted that the Court should award the Petitioners special damages as follows and as supported by the averments in their affidavits:
a) 2 nd Petitioner Ksh.65,000,000.
b) 3 rd Petitioner Ksh.50,000,000.
c) 4 th Petitioner Ksh.16,524,684.
d) 5 th Petitioner Ksh.50,000,000.
e) 9 th Petitioner Ksh. 16,524,684.
f) 11 th Petitioner Ksh.20,000,000.
g) 12 th Petitioner Ksh. 50,000,000.
h) 13 th Petitioner Ksh. 75,000,000.
i) 16 th Petitioner Ksh 50,000,000.
j) 17 th Petitioner Ksh.100,000,000.
k) 20 th Petitioner Ksh. 50,000,000.
Respondent’s Submissions
26. The Respondent neither filed submissions to the Petition nor to its Notice of Preliminary Objection. I found none in the Court file and in Court Online platform (CTS).
Analysis and Determination
27. It is my considered view that the issues that arise for determination in this matter are:
i. Whether this Petition is barred by the doctrine of Res judicata and sub judice.
ii. Whether the Petition raises constitutional questions.
iii. Whether the Respondent violated the Petitioner’s rights under Articles 27, 28, and 47 of the Constitution.
iv. Whether the Petitioners are entitled to the relief sought.
Whether the instant Petition is barred by the doctrine of Res judicata and sub judice.
28. In the Respondent Preliminary objection, it contended that the instant matter is incompetent on the basis that it offends the principle of res judicata and res-sub judice . Nevertheless, the Respondent did not file submissions in support of this contention. That notwithstanding, a jurisdictional issue is a grave matter, which when raised, obligates the Court even on its own motion, to inquire into it and determine if it is competent to adjudicate the matter. This explains why even when parties are in agreement about a Court’s jurisdiction, the Court can suo motu decide otherwise for not even the consent of the parties can confer a Court with jurisdiction.
29. The Supreme Court in Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] KESC 8 (KLR) addressing itself question of jurisdiction rendered itself as follows:
“68.A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
30. The Respondent set out its Preliminary Objection based on three major grounds as follows:
1) That the Constitutional Petition is fatally defective in that it offends the express provisions of Section 7 of the Civil Procedure Act based on the doctrine of res judicata since the issues in the Constitutional Petition were directly and substantially in issue in Constitutional Petitions No. 369 of 2019 -Adrian Kamotho Njenga vs Attorney General and others; Nairobi High Court Constitutional Petition No. 206 of 2020 -Katiba Institute vs The President of the Republic of Kenya & 2 Others as well as Benjamin Gikenyi vs the Chief Justice of the Republic of Kenya, Judicial Service Commission & 13 others (Interested Parties).
2) The Constitutional Petition is fatally defective and an abuse of the Court process and runs afoul the doctrine of sub judice provided for under Section 6 of the Civil Procedure Act in that the matters being canvassed in this Petition are pending determination in the Court of Appeal in Nairobi Civil Appeal Number E088 of 2022; Attorney General vs Katiba Institute and 6 Others (where order of stay of execution of the judgment in Nairobi High Court Constitutional Petition No. 206 of 2020 -Katiba Institute vs the President of the Republic of Kenya & 2 Others has been issued pending the determination of the appeal vide Court of Appeal Civil Application No. E365 of 2021).
3) That the Petition as framed does not raise any constitutional issues for determination and if all any claim exists, it arises as a matter of an alternative determination of allegations of breach of contract of employment between the Petitioner and the Judicial Service Commission.
31. Res Judicata is a jurisdictional issue because, when established, the Court is completely barred from re-litigating the merits of the matter which has been previously concluded. Regarding res-sub judice, it is also a jurisdictional bar in the sense that the Court is barred from hearing an analogous matter at the same time as with another that is proceeding in another competent court to avert possible conflicting decisions that may bring about embarrassment in the administration of justice generally.
Section 6 of the Civil Procedure Act sets out the principle of sub judice states:
No Court shall proceed with the trial of any suit or proceeding on in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim litigating under the same title, where such or proceedings is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.
32. Regarding the principle of res judicata, this is codified under Section 7 of the Civil Procedure Act Cap 21 as follows:
‘No court shall try any suit or issue in which the matter has been directly and substantially in issue in a former suit between the same 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.’
33. The Respondents main contention is that the constitutional issues raised by this Petition were decided on merits in cases cited in the Respondents’ Notice of Preliminary Objection and/or are pending determination before the Court of Appeal, and being judgments in rem , the same issues cannot be relitigated as they are res judicata. Further, that they cannot be litigated simultaneously with ongoing appeals before the Court of Appeal as this will be in breach of the doctrine of sub judice . Elaborating on the implication of rem judgments, the Court of Appeal in Ngutari & 5 others v Okello. & 5 others [2025] KECA 505 (KLR) stated as follows:
“16. In matters of constitutional interpretation, the proceedings more often than not take the in rem form. In rem proceedings give rise to in rem judgements which is a judgment of a court of competent jurisdiction determining the status of a person or thing, or the disposition of a thing (as distinct from a particular interest in it of a party to the litigation). Such a judgement is said to be conclusive as against all the world in whatever it settles as to the status of a person or property, or as to the right or title to the property and as to whatever disposition it makes of the property itself, or of the proceeds of its sale. All persons regardless whether or not they are parties to any legal proceedings are bound by a judgment in rem and as such are estopped from averring that the status of persons or things, or the right or title to property is other than what the Court has by its judgment declared or made it to be . On the other hand , in personam judgement determines the rights of the parties to an action and those who are privy to them in regard to the subject matter in dispute . See Halsbury Laws of England, 4th edition Volume 16 paragraph 1525 and Hoffmann and Zeffertt: “The South African Law of Evidence” 4th edition, at 339- 340 and Lazarus-Barlow v Regent Estates Co Ltd [1949] 2 KB 465 at 475, [1949] 2 All ER 118 at 122.
17. Therefore, where a court is asked to hand down an in rem judgement, care must be taken so that those who are not before the court are not unduly prejudiced by the same when their position is not the same as those of the parties before the court.”
34. The principle of res judicata was illuminated by the Supreme Court in Kenya Commercial Bank Limited & another v Muiri Cofee Estate Limited & 3 others [2016] KESC 6 (KLR) 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…”
35. Public interest matters are not immune from the principle of res judicata and sub judice . If it is shown that an issue has been tried on merits in in a cause of action that was filed in public interest and resolved, the same cannot be retried in another public interest matter by a different party. Further, for a matter that raises similar issue of public interest, different parties will not be allowed to institute contemporaneous proceedings on the same issue in different courts. In Okiya Omutatah Vs Communication Authority of Kenya (2015) eKLR, the Court asserted this position by holding thus:
“34. Further to the above, explanation (6) of the Civil Procedure Act makes it clear that Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating….”
35. In the previous suit Petition No. 447 of 2016 an order of declaration was issued in relation to the subject matter which was a declaration against seizure and destruction of gaming slot machines. A declaration by its nature is an order in rem. Even persons who were not parties in that suit could avail themselves the benefit of a declaratory relief. The instant petition is brought in public interest and relates to the same subject matter as the former petition. This is therefore a perfect res-judicata barred case.”
36. Having elaborated on the principles, the Court must therefore proceed and determine if this matter is barred by principle of sub judice or res judicata .
37. I have very carefully perused the three cases that the Respondent relied on in its assertion that the instant Petition is both res-judicata and sub judice being: Constitutional Petitions No.369 of 2019; Adrian Kamotho Njenga –versus – Attorney General and Others ,Nairobi High Court Constitutional Petition No. 206 of 2020; Katiba Institute – versus – The President of the Republic of Kenya 2 others as well as Nairobi High Court Constitutional Petition No.E196 of 2022 Benjamin Gikenyi -Versus - the Chief Justice of the Republic of Kenya ,Judicial Service Commission &13 others ( Interested Parties).
38. In a nutshell, the three Petitions in my humble view focused on the constitutional interplay between the broad constitutionally mandated obligations of the President vis-à-vis the principle of the separation of powers and judicial independence in light of the sustained refusal by the President to appoint nominees that the JSC had recommended for the appointment as Judges. That is basically the running theme in the previous decisions cited by the Respondent. Indeed, the remedies secured in those decisions reflect that trend, they were general declaratory relief
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1. The Petition dated 21 st June 2023 is supported by affidavits of even date sworn by the Petitioners.
2. This Petition assails the dilatory and reluctant manner the President of the Republic of Kenya failed to act on the recommendation of the Judicial Service Commission regarding the appointment of the Petitioners as Judges of the Environment and Land Court and, the Employment and Labour Relations Court thereby violating the Petitioners constitutional rights and legitimate expectation.
3. The Petitioners thus seek the following reliefs against the Respondent:
a) A declaration that for the period running from 13/08/2019 to 3/6/2021, the President of the Republic of Kenya violated Articles 2, 3, 10, 27, 28, 47, and 166(1)(b) of the Constitution in failing, refusing and neglecting to appoint the Petitioners as Judges of the Environment and Land Court and the Employment and Labour Relations Court for 22 months after they were recommended for such appointment by the Judicial Service Commission.
b) A declaration that the State, through the refusal, failure or neglect by the President of the Republic Kenya to appoint the Petitioners as Judges after they were recommended for appointment by the Judicial Service Commission for the period running from 13/08/2019 to 3/6/2021 violated their fundamental rights and freedoms namely, the right to equal benefit of the law and the full and equal enjoyment of rights as guaranteed by Article 27(1)&(2) of the Constitution, the right to inherent dignity and the right to have that dignity respected and protected as guaranteed by Article 28 of the Constitution, and the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair as guaranteed by Article 47(1) of the Constitution as well as the right to written reasons for administrative action that is likely to adversely affect the rights or fundamental freedoms as guaranteed by Article 47(2) of the Constitution.
c) A declaration that the State through the actions of the President of casting aspersions, without particulars, that the reason why he could not appoint the Petitioners was because they were not fit to hold public office violated the rights of the Petitioners to have their dignity respected and protected in terms of Article 28 of the Constitution.
d) An order for compensation by way of general damages against the Respondent for the violation of Petitioners' rights and constitutional protections specified in prayers (A), (B) and (C) above.
e) An order of compensation by way of exemplary damages against the Respondent for abuse of state power resulting in the violation of Petitioners' rights and constitutional protections specified in prayers (A), (B) and (C) above.
f) An order of compensation by way of special damages as specified in the individual affidavits of the Petitioners accompanying this petition.
g) An order directed at the Respondent to issue a public apology to the Petitioners in such form and manner as shall be specified by the order of this Court for the humiliation, uncertainty and inconvenience caused by the violations of their rights and constitutional protections specified in prayers A, B and C above.
h) Costs of the Petition.
i) Interest of (D), (E) and (F) above at court's rate from the date of Judgment till payment in full .
Petitioners’ Case
4. The Petitioners state that on 13 th August 2019, the Judicial Service Commission (JSC) in line with Article 166(1)(b) of the Constitution, Section 30 of the Judicial Service Act and the First Schedule to the Judicial Service Act, recommended the appointment of the Petitioners as Judges of the Environment and Land Court and the Employment and Labour Relations Court to the President.
5. The Petitioners state that the President in light of Article 166(1)(b) of the Constitution and preceding binding interpretations by the Courts in the matter, had an obligation to appoint the Petitioners in accordance with JSC’s recommendation. They as such had a legitimate expectation owing to this provision, that they would be appointed as Judges.
6. The Petitioners contend that in spite of JSC’s recommendation which was anchored on the Constitution and the relevant provisions of the Statutory law, the President failed, refused and neglected to appoint them for a period of 22 months until 3 rd June 2021. They claim that the President’s refusal had no justification whatsoever and neither was the reason for this failure formally communicated.
7. The Petitioners state that the President’s refusal to appoint them triggered the filing of constitutional Petition - Adrian Kamotho Njenga v Attorney General; Judicial Service Commission & 2 others (Interested Parties) [2020] eKLR , which was filed in public interest by the Petitioner therein. They state that the Court in its Judgment dated 6 th February 2020 held that:
“We find that the President has no mandate to review, reconsider or decline to appoint persons recommended by the 1st Interested Party as judges. We also find that the delay by the President in appointing the persons recommended, is unreasonable and unconstitutional… We therefore allow it and make the following orders, which we consider appropriate:
A declaration be and is hereby issued that the President is constitutionally bound by the recommendation made by the 1st Interested Party in accordance with Article 166(1) as read with Article 172(1)(a) of the Constitution on the persons to be appointed as Judges.
A declaration be and is hereby issued that the President's failure to appoint the persons recommended for appointment as Judges violates the Constitution and the Judicial Service Act.
A declaration be and is hereby issued that the continued delay to appoint the persons recommended as judges of the respective courts is a violation of Articles 2(1), 3(1), 10, 73(1)(a), 131(2)(a), 166(1), 172(1)(a) and 249(2) of the Constitution.”
8. The Petitioners are aggrieved that notwithstanding the above judgment; the President was unyielding. They allege that instead, the President, citing some undisclosed intelligence reports, went ahead to make public remarks which portrayed Petitioners as persons of questionable character that were not fit to hold office as Judges, hence injuring their reputation.
9. The Petitioners contend that the President of failing to appoint them exercised his power in a manner that contravenes Article 2(2) of the Constitution and also, Article 3 and 10. Equally that he denied them the right to equal benefit of the law and enjoyment of their rights under Article 27 of the Constitution. In addition, the act of vilifying them in public on unsubstantiated allegations violated their rights under Article 28 and 47 of the Constitution.
10. The Petitioners contend that the public humiliation and the long period of uncertainty as a result of the President’s conduct caused them loss and damage.
11. The Petitioners aver that they used to work for their respective organizations where they resigned following the JSC recommendation of their appointment as Judges of ELC and ELRC, only to endure 21 months of uncertainty and hardship due to President’s delay and reluctance to make the appointment.
12. The Petitioners have thus, in their individual affidavits, urged that they be compensated by being placed at the remuneration level they would have been had they been appointed as required by the Constitution.
Respondents’ Case
13. In opposition to the Petition, the Respondent filed a Notice of Preliminary Objection dated 26 th January 2024 on the basis that:
i. The Petition is fatally defective in that it offends the express provision of Section 7 of the Civil Procedure Act based on the doctrine of res judicata since the issues raised in the Petition were directly and substantially in issue in Constitutional Petitions No.369 of 2019; Adrian Kamotho Njenga –versus – Attorney General and Others ,Nairobi High Court Constitutional Petition No. 206 of 2020, Katiba Institute – versus – The President of the Republic of Kenya 2 others as well as Nairobi High Court Constitutional Petition No.E196 of 2022 Benjamin Gikenyi -Versus - the Chief Justice of the Republic of Kenya ,Judicial Service Commission &13 others ( Interested Parties) .
ii. The Petition is fatally defective and an abuse of the Court process and runs afoul of the doctrine of sub judice provided for under Section 6 of the Civil Procedure Act in that the matters being canvassed in this Petition are pending determination in the Court of Appeal in Nairobi Civil Appeal Number E088 of 2022; Attorney General -versus – Katiba Institute & 6 others where an order of stay of execution of the judgement in Nairobi High Court Constitutional Petition No. 206 of 2020, Katiba Institute– versus – the President of The Republic of Kenya 2 others has been issued pending the determination of the appeal vide Court of Appeal Civil Application No E365 of 2021 .
iii. The Petition as framed does not raise any constitutional issues for determination and if at all any claim exists; it arises as a matter of an alternative determination of allegations of a breach of contract of employment between the Petitioners and the Judicial Service Commission.
Petitioners’ Submissions
14. Ongoya and Wambola Advocates filed submissions dated 30 th October 2024 on behalf of the Petitioners. On a preliminary note, Counsel underscored that the Respondent had not filed a Replying Affidavit in response to the Petition and thus submitted that the facts as pleaded remained undisputed.
15. On the assertion that the Petition is res judicata, Counsel relied in the principles set out in Independent Electoral & Boundaries Commission v Maina Kiai, Khelef Khalifa, Tirop Kitur, Attorney-General, Katiba Institute & Coalition for Reforms & Democracy [2017] KECA 477 (KLR) by the Court of Appeal as follows:
“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;
(a) The suit or issue was directly and substantially in issue in the former suit.
(b) That 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 formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised…”
16. Counsel submitted that the Respondent’s claim was unfounded as the issues in this Petition were not in issue in the previous petitions and have not been litigated before. In summary, Counsel submitted that the Petitioners issues touch on the loss of remuneration and violation of their constitutional right to dignity owing to the President’s action of casting aspersions without particulars.
17. In addition, the Petitioners herein were not parties in the said suits. Equally, Counsel highlighted that this Petition was filed in a different context, being that, the cited suits were filed prior to the Petitioners appointment, while the instant suit is after their appointment hence the remedies are also distinct.
18. On sub judice, Counsel in like fashion denied this claim stating that the issues and parties in this suit are not similar to those Civil Appeal Number E088 of 2022 . Reliance was placed in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR) where the Supreme Court observed as follows:
“Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter.”
19. On the third objection, Counsel submitted that this Court has jurisdiction to entertain this matter as it raises constitutional issues being, the State’s failure through the President, to act as required by the Constitution and not against the Judiciary as the employer as alleged by the Respondent. Counsel emphasized therefore that this matter is not based on an employer -employee relationship as alleged.
20. To buttress this point reliance was placed in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR where it was held that:
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”
21. Comparable reliance was placed in the Matter of the Interim Independent Electoral Commission (Applicant) [2011] eKLR and Milimani HCCHRPET E311/2023-Honourable Justice Aggrey Muchelule & 5 others v the Honourable Attorney General and Judicial Service Commission .
22. Turning to the Petition, Counsel submitted that the Respondent had not controverted the deponed facts and the Preliminary Objection is unmeritorious, thus are liable for the violations committed against the Petitioners. Reliance was placed in Justice Aggrey Muchelule & 5 others (supra) where it was held that:
“Having considered the pleadings and arguments by parties, the decisions relied on, the constitution and the law, I come to the following conclusions;
First, the President violated the constitution and the petitioners’’ rights and fundamental freedoms. The 1 st to 4 th petitioners were serving Judges. They were recommended for appointment to the Court of Appeal but were not appointed. They were kept waiting for three years. The 5 th and 6 th petitioners were judicial officer and Registrar of the High Court, respectively. They were recommended for appointment to the ELC, but were not appointed for three years, a violation of their legitimate expectation. The petitioners were humiliated, ridiculed and held in contempt following unsubstantiated claims and innuendoes that they were not fit for appointment, despite rigorous interview processes they had gone through.
Second; the petitioners were discriminated against and suffered differential treatment in violation of Article 27 of the Constitution when their colleagues were appointed leaving them without any explanation. This caused the petitioners anxiety, mental and physical anguish. They were considered pariah in the eyes of reasonable members of society which diminished their dignity. Third; the petitioners’ right to fair administrative action was violated contrary to Article 47 as no written reasons were given why they could not be appointed. The petitioners not only lost yearly increment but also pecking order in their respective courts…”
23. Counsel further submitted that the Petitioners are entitled to general, aggravated and special damages. On general damages, Counsel submitted that this Court should award Ksh.15,000,000.00 to each Petitioner. Reliance was equally placed in Justice Aggrey Muchelule & 5 others (supra) where it was noted as follows:
“86. When considering the level of damages to award, the position adumbrated by Patterson JA in Fuller v A-G of Jamaica (Civil Appeal 91/1995, unreported) is helpful. He stated: Where an award of monetary compensation is appropriate, the crucial question must be what is a reasonable amount in the circumstances of the particular case. The infringement should be viewed in its true perspective as an infringement of the sacrosanct fundamental rights and freedoms of the individual and a breach of the supreme law of the land by the state itself. But that does not mean that the infringement should be blown out of all proportion to reality nor does it mean that it should be trivialized…In Peter M. Kariuki v Attorney General [2014] eKLR, the Court of Appeal awarded Kshs. 15,000,000 general damages for violation of constitutional rights. 88. Taking these awards into account, the nature of violations by the holder of the highest office in the land and considering the level of inflation, an award of Kshs. 15,000,000 general damages for each petitioner, is fair and reasonable…”
24. On exemplary and punitive damages, Counsel submitted that abuse of power by the President in failing to appoint the Petitioners entitles them to this award to the tune of Ksh.5,000,000. Parallel dependence was placed in Justice Aggrey Muchelule & 5 others (supra) where it was held that:
“There can be no greater public interest than defending the constitution and upholding the rule of law and human rights, as founding values in Article 10 of the constitution. The President’s constitutional transgression has to be frowned upon and discouraged. The AG must also be called out for failing to uphold Article 156(6) of the constitution. The only way to do so, is to award exemplary damages. Taking into account what the petitioners went through during the three years’ wait; the discrimination they endured when their colleagues were appointed; the lost pecking order and salary increase, I consider an award of Kshs. 5,000,000 exemplary damages for each petitioner reasonable in the circumstances of this case…”
25. On special damages, Counsel submitted that the Court should award the Petitioners special damages as follows and as supported by the averments in their affidavits:
a) 2 nd Petitioner Ksh.65,000,000.
b) 3 rd Petitioner Ksh.50,000,000.
c) 4 th Petitioner Ksh.16,524,684.
d) 5 th Petitioner Ksh.50,000,000.
e) 9 th Petitioner Ksh. 16,524,684.
f) 11 th Petitioner Ksh.20,000,000.
g) 12 th Petitioner Ksh. 50,000,000.
h) 13 th Petitioner Ksh. 75,000,000.
i) 16 th Petitioner Ksh 50,000,000.
j) 17 th Petitioner Ksh.100,000,000.
k) 20 th Petitioner Ksh. 50,000,000.
Respondent’s Submissions
26. The Respondent neither filed submissions to the Petition nor to its Notice of Preliminary Objection. I found none in the Court file and in Court Online platform (CTS).
Analysis and Determination
27. It is my considered view that the issues that arise for determination in this matter are:
i. Whether this Petition is barred by the doctrine of Res judicata and sub judice.
ii. Whether the Petition raises constitutional questions.
iii. Whether the Respondent violated the Petitioner’s rights under Articles 27, 28, and 47 of the Constitution.
iv. Whether the Petitioners are entitled to the relief sought.
Whether the instant Petition is barred by the doctrine of Res judicata and sub judice.
28. In the Respondent Preliminary objection, it contended that the instant matter is incompetent on the basis that it offends the principle of res judicata and res-sub judice . Nevertheless, the Respondent did not file submissions in support of this contention. That notwithstanding, a jurisdictional issue is a grave matter, which when raised, obligates the Court even on its own motion, to inquire into it and determine if it is competent to adjudicate the matter. This explains why even when parties are in agreement about a Court’s jurisdiction, the Court can suo motu decide otherwise for not even the consent of the parties can confer a Court with jurisdiction.
29. The Supreme Court in Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] KESC 8 (KLR) addressing itself question of jurisdiction rendered itself as follows:
“68.A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
30. The Respondent set out its Preliminary Objection based on three major grounds as follows:
1) That the Constitutional Petition is fatally defective in that it offends the express provisions of Section 7 of the Civil Procedure Act based on the doctrine of res judicata since the issues in the Constitutional Petition were directly and substantially in issue in Constitutional Petitions No. 369 of 2019 -Adrian Kamotho Njenga vs Attorney General and others; Nairobi High Court Constitutional Petition No. 206 of 2020 -Katiba Institute vs The President of the Republic of Kenya & 2 Others as well as Benjamin Gikenyi vs the Chief Justice of the Republic of Kenya, Judicial Service Commission & 13 others (Interested Parties).
2) The Constitutional Petition is fatally defective and an abuse of the Court process and runs afoul the doctrine of sub judice provided for under Section 6 of the Civil Procedure Act in that the matters being canvassed in this Petition are pending determination in the Court of Appeal in Nairobi Civil Appeal Number E088 of 2022; Attorney General vs Katiba Institute and 6 Others (where order of stay of execution of the judgment in Nairobi High Court Constitutional Petition No. 206 of 2020 -Katiba Institute vs the President of the Republic of Kenya & 2 Others has been issued pending the determination of the appeal vide Court of Appeal Civil Application No. E365 of 2021).
3) That the Petition as framed does not raise any constitutional issues for determination and if all any claim exists, it arises as a matter of an alternative determination of allegations of breach of contract of employment between the Petitioner and the Judicial Service Commission.
31. Res Judicata is a jurisdictional issue because, when established, the Court is completely barred from re-litigating the merits of the matter which has been previously concluded. Regarding res-sub judice, it is also a jurisdictional bar in the sense that the Court is barred from hearing an analogous matter at the same time as with another that is proceeding in another competent court to avert possible conflicting decisions that may bring about embarrassment in the administration of justice generally.
Section 6 of the Civil Procedure Act sets out the principle of sub judice states:
No Court shall proceed with the trial of any suit or proceeding on in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim litigating under the same title, where such or proceedings is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.
32. Regarding the principle of res judicata, this is codified under Section 7 of the Civil Procedure Act Cap 21 as follows:
‘No court shall try any suit or issue in which the matter has been directly and substantially in issue in a former suit between the same 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.’
33. The Respondents main contention is that the constitutional issues raised by this Petition were decided on merits in cases cited in the Respondents’ Notice of Preliminary Objection and/or are pending determination before the Court of Appeal, and being judgments in rem , the same issues cannot be relitigated as they are res judicata. Further, that they cannot be litigated simultaneously with ongoing appeals before the Court of Appeal as this will be in breach of the doctrine of sub judice . Elaborating on the implication of rem judgments, the Court of Appeal in Ngutari & 5 others v Okello. & 5 others [2025] KECA 505 (KLR) stated as follows:
“16. In matters of constitutional interpretation, the proceedings more often than not take the in rem form. In rem proceedings give rise to in rem judgements which is a judgment of a court of competent jurisdiction determining the status of a person or thing, or the disposition of a thing (as distinct from a particular interest in it of a party to the litigation). Such a judgement is said to be conclusive as against all the world in whatever it settles as to the status of a person or property, or as to the right or title to the property and as to whatever disposition it makes of the property itself, or of the proceeds of its sale. All persons regardless whether or not they are parties to any legal proceedings are bound by a judgment in rem and as such are estopped from averring that the status of persons or things, or the right or title to property is other than what the Court has by its judgment declared or made it to be . On the other hand , in personam judgement determines the rights of the parties to an action and those who are privy to them in regard to the subject matter in dispute . See Halsbury Laws of England, 4th edition Volume 16 paragraph 1525 and Hoffmann and Zeffertt: “The South African Law of Evidence” 4th edition, at 339- 340 and Lazarus-Barlow v Regent Estates Co Ltd [1949] 2 KB 465 at 475, [1949] 2 All ER 118 at 122.
17. Therefore, where a court is asked to hand down an in rem judgement, care must be taken so that those who are not before the court are not unduly prejudiced by the same when their position is not the same as those of the parties before the court.”
34. The principle of res judicata was illuminated by the Supreme Court in Kenya Commercial Bank Limited & another v Muiri Cofee Estate Limited & 3 others [2016] KESC 6 (KLR) 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…”
35. Public interest matters are not immune from the principle of res judicata and sub judice . If it is shown that an issue has been tried on merits in in a cause of action that was filed in public interest and resolved, the same cannot be retried in another public interest matter by a different party. Further, for a matter that raises similar issue of public interest, different parties will not be allowed to institute contemporaneous proceedings on the same issue in different courts. In Okiya Omutatah Vs Communication Authority of Kenya (2015) eKLR, the Court asserted this position by holding thus:
“34. Further to the above, explanation (6) of the Civil Procedure Act makes it clear that Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating….”
35. In the previous suit Petition No. 447 of 2016 an order of declaration was issued in relation to the subject matter which was a declaration against seizure and destruction of gaming slot machines. A declaration by its nature is an order in rem. Even persons who were not parties in that suit could avail themselves the benefit of a declaratory relief. The instant petition is brought in public interest and relates to the same subject matter as the former petition. This is therefore a perfect res-judicata barred case.”
36. Having elaborated on the principles, the Court must therefore proceed and determine if this matter is barred by principle of sub judice or res judicata .
37. I have very carefully perused the three cases that the Respondent relied on in its assertion that the instant Petition is both res-judicata and sub judice being: Constitutional Petitions No.369 of 2019; Adrian Kamotho Njenga –versus – Attorney General and Others ,Nairobi High Court Constitutional Petition No. 206 of 2020; Katiba Institute – versus – The President of the Republic of Kenya 2 others as well as Nairobi High Court Constitutional Petition No.E196 of 2022 Benjamin Gikenyi -Versus - the Chief Justice of the Republic of Kenya ,Judicial Service Commission &13 others ( Interested Parties).
38. In a nutshell, the three Petitions in my humble view focused on the constitutional interplay between the broad constitutionally mandated obligations of the President vis-à-vis the principle of the separation of powers and judicial independence in light of the sustained refusal by the President to appoint nominees that the JSC had recommended for the appointment as Judges. That is basically the running theme in the previous decisions cited by the Respondent. Indeed, the remedies secured in those decisions reflect that trend, they were general declaratory relief
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