REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
PETITION NO. E022 OF 2024
(Before Hon. Justice Dr. Jacob Gakeri)
IN THE MATTER OF ARTICLES 10, 27, 28, 29, 41, 47, 236 & 258(1) OF THE CONSTITUTION
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013
AND
IN THE MATTER OF SECTIONS 5, 45 & 46 OF THE EMPLOYMENT ACT OF 2007
AND
IN THE MATTER OF SECTION 12 & 13 OF THE COUNTY GOVERNMENTS ACT, 2012
AND
IN THE MATTER OF SECTION 5, 10, 17, 19, 22, 23 OF THE COUNTY ASSEMBLY SERVICE ACT, 2017
AND
IN THE MATTER OF CONTRAVENTION OF SECTION 9(2)(d) OF THE PUBLIC SERVICE (VALUES AND PRINCIPLES) ACT 2017
AND
IN THE MATTER OF VIOLATION AND CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS GUARANTEED UNDER ARTICLES 10, 27, 28, 29, 41, 47 AND 236 OF THE CONSTITUTION
BETWEEN
FAITH ADHIAMBO APUKO, THE CLERK,
COUNTY ASSEMBLY OF HOMA BAY…………….PETITIONER
VERSUS
HON. JULIUS O. GAYA, THE SPEAKER, COUNTY ASSEMBLY OF HOMABAY…………………………………..1ST RESPONDENT
HOMA BAY COUNTY ASSEMBLY SERVICE BOARD…………………………………………..2ND RESPONDENT
COUNTY ASSEMBLY OF HOMABAY…..……3RD RESPONDENT
RULING
Before the court for determination is the 1st and 3rd respondents Notice of Motion dated 19th June, 2025, filed under Certificate of Urgency seeking Orders that: -
- Spent.
- The court finds and determines that it lacks the requisite statutory and constitutional jurisdiction to determine the Petition and ought to strike it out with costs.
- Costs of this application be provided for.
The Notice of Motion is expressed under Section 12 of the Employment and Labour Relations Court Act and is based on the grounds outlined on its face and the Supporting Affidavit of Mr. Richard B. O. Onsongo Advocate sworn on 19th June, 2025.
Counsel argues that since the Petitioner was still an employee of the 2nd respondent and thus subject to its supervision, superintendent and oversight as an employee, the court had no jurisdiction by dint of the provisions of Section 77(1) of the County Governments Act and Regulation 4 of the Public Service Commission (County Appeals Procedures) Regulations, 2022.
Equally, counsel urges that as held in Governor, County Government of Kakamega & 4 Others V Omweno & 12 Others [2025] KECA 190 (KLR), the Employment and Labour Relations court had no jurisdiction to entertain hear and determine a Petition that raised constitutional issues.
Response
In opposition to the Notice of Motion, the Petitioner filed Grounds of Opposition contending that the motion was an abuse of the court process and a ploy to delay the Petition, was devoid of merit frivolous, vexatious and instituted in bad faith.
In her Affidavit in Reply, the Petitioner deposed that she was the Clerk of the County Assembly having been appointed vide letter dated 10th February, 2022 and outlined her functions and responsibilities under paragraphs 2, 3 and 4 of the Affidavit.
The Petitioner deponed that she was a political and had no political roles as a civil servant and had no casting vote. The affiant further deponed that the issue of jurisdiction was determined in an earlier Preliminary Objection and it was res judicata and the Preliminary Objection was an abuse of the court process.
1st and 3rd Respondent’s submissions
Counsel for the 1st and 3rd respondents submitted that because the office of Clerk of the County Assembly was a creation of Article 177 of the Constitution of Kenya and the Petitioner was still an employee of the County Assembly, by dint of Section 77(1) of the County Governments Act, this court had no jurisdiction to hear and determine the application and Petition as a whole.
Reliance was placed on the Court of Appeal decision in Governor, County Government of Kakamega & 4 Others V Omweno & 12 others (supra) to submit the this court had no jurisdiction to hear and determine a Petition that raises constitutional issues.
On pleadings, counsel submitted that it was settled law that parties are bound by their pleadings as stated by the Court of Appeal in Independent Electoral and Boundaries Commission & another V Stephen Mutinda Mule & 3 Others [2014] eKLR citing the Nigerian Supreme Court decision in Adetoun Oladeji (NIG) V Nigeria Breweries PLC SC.91/2002, to urge that the Petitioner could not amend or alter her case vide a Replying Affidavit or Preliminary Objection and could not plead res judicata on jurisdiction as it was a critical ingredient of the judicial process and can be raised at any point.
Counsel submitted that the court had no jurisdiction because the issues raised relate to recruitment, selection, appointment and qualifications attached to the office of the Clerk of the Homa Bay County Assembly.
The decision in Hussein Wanyama Mulebo & 5 Others V County Public Service Board & 2 Others [2022] eKLR was relied upon as were the provisions of Section 87(2) of the Public Service Commission Act.
Strangely, counsel submitted that the instant Petition did not raise any constitutional issues and was all about the Petitioner’s employment and discipline and if she had any constitutional issues the proper court would have been the High Court.
Finally, counsel cited the sentiments of the Court of Appeal in Governor, County Government of Kakamega & 4 Others V Omweno & 12 others (supra) as well as those in Jamal Salim V Yusuf Abdulahi Abdi & another [2018] eKLR and Samuel Kamau Macharia & antoehr V Kenya Commercial Bank Ltd & Others [2012] eKLR, to urge the centrality of jurisdiction and submit that in this case the court had no jurisdiction.
Petitioner’s submissions
Strangely, the Petitioner’s submissions dated 19th July, 2025 are styled as submissions in support of the Notice of Motion dated 22nd August, 2024.
Counsel for the Petitioner submitted on the competency of the application res judicata and abuse of court among other aspects.
On competency on the suit reliance was placed on the sentiments of the Court of Appeal in Stephen Onyango Achola & another V Edward Hongo Sule & another [2004] eKLR to urge that since the subject matter of the motion had not been pleaded as the respondents had not filed a Reply to the Petition the motion was incompetent.
On res judicata counsel submitted that the same grounds and submissions on the notice of objection dated 27th August, 2024 are the same as in the instant case and the issue of jurisdiction became Otiose and the issue had been raised in the earlier application and if the court did not comment on the issue it was deemed to have rejected it.
Reliance was placed on the sentiments of the court in Re-Estate of Ringu Nkuuri (Deceased) [2021] eKLR V Attorney General & another E-T [2012] eKLR, Henderson V Henderson [1843-60] ALLER 378, Julia Muthoni Githinji V African Banking Corporation Ltd [2020] eKLR and Maumbwa & 3 Others V Kisemei [2022] KEHC 104 16 (KLR) to urge that the instant notice of objection was red judicata by virtue of Section 7 of the Civil Procedure Act.
On abuse of court process counsel cited the sentiments of the court in Muchange Investments Ltd V Safaris Unlimited (Africa) & 2 Others [2009] eKLR, Saftya Bhama Gandhi V Director of Public Prosecutions & 3 Others [2018] eKLR and Stephen Sumek Tankwenyi & another V David Mbuthia Githare & 2 Others (NRB Milimani HCCC No. 363 of 2009) to submit that the instant notice of objection was an abuse of the court process as the relief sought could have been obtained in the earlier application.
Counsel further submitted that a party need not be heard on every point as held Union Insurance Co. Ltd of Kenya Ltd V Ramzan Dhanji Civil Application No. 179 of 1998.
Counsel also submitted that the instant notice of objection was an application for review disguised as an application and placed reliance on the sentiments of the Court in Duck Workers Union & 2 Others V Attorney General & Kenya Ports Authority & 4 Others Interested Party [2019] eKLR, Ahmednasir Abdikadir & Co. Advocates V National Bank of Kenya Ltd Nairobi Milimani HCCC No. 532 of 2004 and Mahinola V Kenya Power & Lighting Co. Ltd [2005] 2KLR 418 to reinforce the submission.
Counsel submitted that the decision in Governor, County Government of Kakamega & 4 Others V Omweno and 12 others (supra) was of no relevance in the instant case as the Court of Appeal had held that the Employment and Labour Relations Court had jurisdiction to hear and determine disputes relating to employment and labour relations pursuant to the provisions of Article 162(2) of the Constitution of Kenya and Section 12(1) of the Employment and Labour Relations Court Act.
Finally, counsel for the Petitioner urged that a reading of the provisions of Section 18 and 22 of the County Assemblies Services Act revealed that the Petitioners employment fell within the contemplation of the provisions of Section 12(1) of the Employment and Labour Relations Court.
According to counsel for the Petitioner, the respondents application was for dismissal.
Analysis
In opposition to the 1st and 3rd respondents’ Notice of Motion dated 19th June, 2025, the Petitioner filed a Preliminary Objection contending that the motion was res judicata, a ploy to delay the Petition, was frivolous, vexatious and an abuse of the court process.
The most potent ground is res judicata.
It is not in contest that the 2nd respondent filed a Notice of Preliminary Objection dated 22nd August, 2024 challenging the court’s jurisdiction to hear and determine the instant Petition but regrettably, the 2nd respondent did not particularize the reason or reasons why the court had no jurisdiction.
Vide a ruling delivered on 23rd October, 2024, the court dismissed the Preliminary Objection on the premises that it did not meet the threshold in Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd [1965] EA 696.
The pertinent issue for determination is whether the 1st and 3rd respondents Notice of Preliminary Objection dated 19th June, 2025 is res judicata the 2nd respondents Notice of Preliminary Objection dated 22nd August, 2024.
The doctrine of res judicata is a statutory imperative under Section 7 of the Civil Procedure Act and serves a salutary purpose.
In Henderson V Henderson (1843) 67 ER 313 the court held:
“……where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.
The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
Similarly, in Kenya Commercial Bank Ltd V Muiru Coffee States Ltd [2016] eKLR, the Supreme Court of Kenya stated as follows:
“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 that doctrine of res judicata is to apply in respect of matters of all categories including issues of constitutional rights. Such perception has a basis in comparative jurisprudence. In the Ugandan case of Hon. Norbet Mao V Attorney General Petition 9 of 2002 [2003] UG CC3…
The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively…”
Finally, in George W. M. Omondi & Another V National Bank of Kenya Ltd, the court held:
“The doctrine of res judicata would apply not only to situation where a specific matter between the same persons litigating in the same capacity had previously been determined by a court of competent jurisdiction but also to situation where either the matters which could have been brought in were not brought in or parties could have been enjoined were not enjoined. Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit. They are bound to bring all their cases at once. They are forbidden from litigating in instalments”.
The foregoing sentiments apply on all fours to the circumstances of the instant case on account that the 2nd respondent’s Notice of Preliminary Objection ought to have brought on board the issue of exhaustion but did not and it would be unfair to the Petitioner for the 1st and 3rd respondents to ground a Preliminary Objection on a ground the earlier objection ought to have relied upon.
However, because the decision in Governor, County Government of Kakamega & 4 Others V Omweno & 12 others (supra) was made after the ruling on the earlier application, it was not res judicata and could be relied upon by an applicant for the court to pronounce itself on it.
The only issue for determination is whether this court has jurisdiction to hear and determine the instant Petition.
The instant Petition was filed on 10th July, 2024 more than one (1) year ago and has not moved appreciably towards its conclusion, thanks to the unending applications by counsel as they endeavour to urge their client’s case.
When the matter came up on 10th July, 2024 the court scheduled an inter partes hearing on 23rd July, 2024 on which date an Order that the status quo be maintained was made.
Another application was filed on 22nd August, 2024 under Certificate Urgency and a ruling delivered on 28th August, 2024 and since then three (3) other rulings have been delivered and this is the fifth since the suit was filed and a sixth is pending directions for determination.
The 1st and 3rd respondents relied on the decision in the Governor, County Gvoernment of Kakamega & 4 others V Omweno and 12 Others (supra) to argue and submit that this court had no jurisdiction to hear and determine the Petition herein.
They also relied on the doctrine of exhaustion under the County Governments Act and the Public Service Commission Act.
In the Governor, County Government of Kakamega & 4 Others V Omweno & 12 others (supra), the Court of Appeal as correctly cited by the respondents’ counsel stated that: -
“…the jurisdictional question is whether the Employment and Labour Relations Court (ELRC) has jurisdiction to determine the constitutionality of the removal from office of the chair person and members of the County Assembly of Kakamega County in the circumstance of this case.
While all the three appellants in the three appeals (as consolidated) argue that the ELRC had no jurisdiction to deal with the matter, the 1st to 4th respondents have insisted that it did. In doing so they have had to make the implicit argument that the chair person and members of the County Assembly Board of Kakamega County were employees of the County…
We are of the view that by parity of reasoning, the questions presented in the consolidated appeals before us do not fall within the meaning of disputes related to employment and labour relations, that, therefore, the ELRC and did not have jurisdiction to deal with the Petition before it and should have allowed the Preliminary objection pursued by the respondents before it. The matter should have been appropriately before the High Court which has unlimited subject matter jurisdiction…
These provisions viewed against the constitutional provisions and exposition we begin to contextualize this dispute make it obvious that the precise and limited jurisdiction of the ELRC was not meant to cover the type of constitutional question presented in the Petition that was before the superior court.
These questions related to the constitutional constraints and imprimatur in the procedures and standards for the removal of chairperson and members of County Public Service Boards. Those are matters which do not fall within the meaning of a dispute relating to employment and labour relations. Consequently, those are matters which were not within the jurisdiction of the ELRC. As this court has variously said, the ELRC and ELC certainly have jurisdiction in appropriate cases, to interpret and apply the constitution in matters that arise in the context of disputes on Employment and Labour Relations or Environment and Land matters. They, however, have no original jurisdiction or unlimited jurisdiction to interpret and apply the constitution.
The bottom line is that we find that the issues raised in the Petition that was before the ELRC were constitutional in nature and the ELRC did not have jurisdiction to hear and determine them.
Consequently, we allow the three appeals to the extent that the ELRC did not have jurisdiction”.
Contrary to the applicant’s submissions, the foregoing decision of the Court of Appeal did not state that the ELRC had no jurisdiction to entertain, hear and determine constitutional issues. The court re-stated the previously held position that the ELRC had jurisdiction to hear and determine cases that raise constitutional issues in the context of employer and employee relationships generally, including constitutionality of statutes involving employees qua employee.
Having found that the chairperson and members of the County Public Service Board were not employees as held in Attorney General & 2 others V Okiya Omtata & 14 others [2020] eKLR regarding chairperson and members of the National Land Commission, the Court of Appeal held as it ought to in the circumstances of that case.
For contextual purposes, this Court of Appeal decision related to the chairperson and members of the County Public Service Board.
The decision made no reference to any other office or offices other than that of the chairperson and members of the County Public Service Board.
This court is cognizant of the foundational character of jurisdiction in litigation or judicial processes as without it the court has no power to proceed, as eloquently captured by Nyarangi J A in Owners of the Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd [1989] eKLR as follows:
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.
A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…”
These words have been expressed differently in many other decisions including Lemita Ole Lemein V Attorney General & 2 Others (supra) cited by the applicants, where Karanja JA stated:-
“In my view, jurisdiction is primordial and must exist right from the filing of a case to determination. The issue of jurisdiction need not be raised by the parties to a suit for the court to address its mind to it. It is incumbent upon every judicial or quasi judicial tribunal or court to satisfy itself that it has jurisdiction to entertain a matter before settling down to hear it. In essence therefore, a court or tribunal should not wait for a party to move it on the issue of jurisdiction for it to determine the issue. The Court can suo motu determine the issue even without being prompted by a party. Just like you cannot confer jurisdiction even by consent of the parties, you cannot confer jurisdiction by ignoring the issue or sidestepping it. It is omnipresent and cannot be wished away. Moreover, it being a point of law, the issue of jurisdiction can also be raised at any stage; in the trial court, first appeal or even on second or third appeal.
Finally, as held in Samuel Kamau Macharia & another V Kenya Commercial Bank & 2 others (supra) a court derives its jurisdiction from the constitution or legislation or both and cannot arrogate unto itself jurisdiction not granted by law.
See also E. A. Assurance Co. Ltd V S. M. Thiga t/a Newspaper Service [2019] eKLR.
It is common ground that this court derives its jurisdiction from the provisions of Article 162(2)(a) of the Constitution of Kenya and those of Section 12 of the Employment and Labour Relations Court Act.
The jurisdiction is exclusive and both original and appellate in all matters relating to employment and Labour Relations as exemplified by Section 12(1) of the ELRC Act.
In Attorney General & 2 Others V Okiya Omtata & 14 Others the Court of Appeal held as follows:
“We have no doubt that the ELRC and the ELC have jurisdiction to interpret and apply the Constitution as held by the High Court in United States International University (USIU) V The Attorney General & Others [2012] eKLR and this Court in Daniel N. Mugendi V Kenyatta University & 3 Others [2013] eKLR. However, the jurisdiction of those specialized courts to interpret and apply the Constitution is not original or unlimited like that of the High Court. It is limited to constitutional issues that arise in the context of disputes on employment and labour relations or environment and land matters.
To underline the fact that the ELRC has jurisdiction to hear and determine Petitions or claims by a Clerk of County Assembly, in Denis Musyoka Mutui V Kwale County Assembly Service Board & another [2018] eKLR Rika J. stated:
“The court agrees with the submissions made by the 1st respondent that the claimant is an employee of the County Assembly Service board not an employee of the County Public Service Board or the Public Commission of Kenya. Consequently, when challenging his suspension, he cannot rely on the provisions of the Public Service Commission Act, 2017 or the County Public Service Human Resource Manual…”
In Siaya County Assembly Service Board & 2 Others V Olwero [2023] KECA 905 (KLR), the respondent, the County Assembly Clerk of the County Assembly of Siaya had challenged his suspension in the ELRC at Kisumu and the court quashed the recommendations of the County Assembly Service Board to the County Assembly to revoke the respondent’s appointment as Clerk of the County Assembly of Siaya.
I conclusion the Court of Appeal observed:
“I would further propose that the appeal be allowed and so as to remove further confusion, a clarification be made that the judgment of April 14th 2021 of the ELRC does not bar the appellants from commencing fresh disciplinary and removal proceedings on the basis of allegations of misconduct made against the respondent in respect to circumstance surrounding the withdrawal of funds from the assembly’s Bank at Co-operative Bank of Kenya, Siaya branch on or around September, 1st 2015 and appropriation of those funds…”
Finally, in Daniel Odhiambo Kaudo V Speaker, County Assembly of Homa Bay & 6 Others Civil Appeal No. E295 of 2022 the Court of Appeal remanded the suit to the ELRC to hear and determine whether the suspension and removal of the appellant, as the Clerk of the County Assembly of Homabay was lawful; and if not, what relies he was entitled to.
These directions were given by the same bench that rendered the decision in Governor, County Government of Kakamega & 4 Others V Omweno & 12 Others (supra).
To the question whether the court has jurisdiction to hear and determine the instant Petition, the court returns that it has jurisdiction.
Indeed, the applicants agree that the instant Petition does not raise any constitutional issues as “it was all about the Petitioner’s employment and discipline”.
The upshot of the foregoing is that the 1st and 3rd respondent’s Notice of Motion dated 19th June, 2025 is bereft of merit and dismissed.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU ON THIS 30TH DAY OF JULY 2025.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE