Introduction
1. The Respondent, by a Notice of Motion Application dated 10 th July 2024 and a Notice of Preliminary Objection dated 11 th July 2024, applied to strike out the Petition in limine .
2. The Preliminary objection is based on the grounds that the petition offends the doctrine of sub judice since the cause of action herein is identical to Nairobi Employment and Labour Relations Court ELRC Petition No. 100 of 2023 Francis Awino vs Daniel Kiptoo Bargoria which is pending hearing and determination. Further, that that the Petition herein has failed the test of specificity established in the case of Anarita Karimi vs Republic (No. 1)(1979) 1 KLR 154 and it is therefore fatally defective and should be struck out in limine . The application is based on similar grounds save to add that the Respondent seeks for an order staying the current proceedings pending the hearing and determination of the Nairobi ELRC Petition No. 100 of 2023 .
The Respondent’s Case
3. The Respondent’s Counsel, Faith Wamuyu, in the affidavit in support of the motion dated 10/7/2024 swore that the Petitioner has a similar Petition seeking identical reliefs in another matter , Nairobi Employment and Labour Relations Court ELRC Petition No. 100 of 2023 -Francis Awino vs Daniel Kiptoo Bargoria which came up before the learned Judge on 24 th July 2024.
4. Counsel revealed that the Petition in the Employment and Labour Relations Court was initially filed in the High Court as Constitutional Petition No. E182 of 2023 but subsequently transferred to the Employment and Labour Relations Court on 5 th June 2023 on the grounds that the matter falls within the jurisdiction of the ELRC Court.
5. Counsel contends that the two Petition in both Courts raise similar issues for determination both directly and substantially since they arise out of the same series of events. As such, the current petition is frivolous, vexatious, contemptuous and an abuse of the court process since the ELRC Court possesses the requisite jurisdiction to grant all the reliefs claimed herein.
6. Counsel contends that the filing of the current Petition whilst the one in the ELRC Court is pending is tantamount to forum shopping and an abuse of the court process. Further, Counsel contended that the instant petition does not raise any issues on violation of the Constitution hence does not meet the threshold of a constitutional petition as stipulated in the case of Anarita Karimi vs Republic (No. 1)(1979) 1 KLR 154 . Counsel stated that while the Petitioner has cites Articles 2, 3, 10, 19, 20, 21, 22, 23, 27(1), (3), (8), 131(2), 132(2)(f), 159, 165, 232, 233, 234, 249, 258, 259 & 260 of the Constitution as having been allegedly contravened, he has failed to give particulars of the said contravention within the body of the Petition. Further, while the Petitioner alleges violation of his constitutional right under Articles 10, 73 and 232 in the orders he seeks in the Petition, the particulars of the manner the Respondent violated the same are not provided.
7. Parties put in written submissions.
The Respondent’s Submissions.
8. The Respondent identified two issues for determination which are whether the instant Petition offends the doctrine of sub judice and whether the petition meets the threshold of a constitutional petition. The Respondent cited Section 6 of the Civil Procedure Act and an advisory opinion from the Supreme Court being Advisory Opinion Reference 1 of 2017 Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) where the Learned Judges defined the purpose of the doctrine of sub judice in the Kenyan judicial system thus:-
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. This means that when two or more cases are filed between the same parties on the same subject matter before court with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives. -
9. On the first requirement that the issues in the instant suit are also directly and substantially in issue in a previously instituted suit, the respondent submitted that the petitioner in the instant suit seeks the following reliefs:-
i. Declaratory orders that the appointment of the Respondent as the Director General of EPRA is illegal, irregular, unlawful and his appointment as the Director General is unconstitutional;
ii. An order for mandamus directed to the PSC (who are not party to the dispute) to conduct afresh interview and appointment of the Director General of EPRA;
iii. Declaratory orders that the Respondent is not fit to hold office due to his corrupt dealings and his continued stay in the office of the Respondent as the Director General is against public interest;
iv. An order to KENAO to carry out an audit of the funds used by the Respondent and once held to have misused public funds, to be held personally liable and be surcharged accordingly.
v. An order to the interested party to conduct investigations against the respondent with speed;
vi. A prohibitory order prohibiting the respondent from taking any further management of EPRA.
10. Whereas in Nairobi Employment and Labour Relations Court ELRC Petition No. 100 of 2023, the Petitioner seeks similar orders word for word save for order iv. Evidently both petitions relate to the appointment and removal of the Respondent as the Director General of EPRA. Furthermore, the Respondent asserted that the instant petition was initially filed before this Court before it was transferred to the ELRC Court on the grounds that the matter falls within the jurisdiction of the Employment and Labour Relations Court, a fact which the Petitioner has failed to disclose to the Court.
11. The Respondent argued that the parties in both the Petitions are the same and the previously instituted suit is still pending before a court of competent jurisdiction in Kenya to grant the reliefs sought herein. As such, the Respondent concluded that the conduct of two concurrent proceedings before two separate courts over the same subject matter bears the risk of embarrassing the trial process with the real possibility of having two conflicting decisions.
12. The Respondent further argued that the petition herein has failed to meet the threshold of a constitutional petition as established in the case of Anarita Karimi Njeru vs Republic (1979) eKLR and Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR . Apart from the Petitioner citing omnibus provisions of the constitution, the Petition does not outline the specific particulars of the alleged complaints, or the manner of alleged infringements or the jurisdictional basis of the action before the court. By the petitioner’s failure to draft the Petition with precision, the Respondent submitted that he is heavily prejudiced as he is unable to respond substantively to the alleged infringement. Reliance was placed in the case of John Harun Mwau vs Peter Gastrow & 3 Others [2014] eKLR where the court held that the Constitution only ought to be invoked when there is no other recourse for disposing the matter and in which the court expressed itself on the following terms:-
Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or some other basis, whether legal or factual, a court will usually decline to determine whether there has been in addition to a breach of the other declaration right….It is an established practice that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be invoked at all. The court will pronounce on the constitutionality of a statute only when it is necessary for the decision of the case to do so.
The Petitioner’s Submissions.
13. The Petitioner revealed that the Petition impugns the constitutional validity, legal propriety and ethical legitimacy of the Respondent’s continued occupation of the office of Director General of the Energy and Petroleum Regulatory Authority (EPRA). Specifically, the Petitioner argued that the Respondent was irregularly appointed and is grossly unfit to hold public office due to integrity deficits and has presided over serious financial and regulatory malpractices including conflict of interest, nepotism and irregular procurements, all of which compromise the rule of law and governance.
14. The Petitioner submitted that the sub judice rule does not apply to the instant petition. Reliance was placed in the Advisory opinion by the Supreme Court in Kenya National Commission on Human Rights vs Attorney General & 16 Others [2020] eKLR where it was held that for sub judice to apply, the following conditions must be met:-
i. Identity of party or parties litigating under the same title;
ii. Same subject matter in issue;
iii. The matter must be pending in a court with jurisdiction;
iv. The matter must have been previously instituted.
15. The Petitioner argued that the ELRC petition is limited to the recruitment process and the appointment of the Respondent whereas the instant Petition delves into the constitutional fitness, integrity profile and conduct in office of the Respondent under Chapter Six of the Constitution, Article 232, the Energy Act and the Anti Corruption and Economics Crimes Act. Further, he argued that the ELRC lacks the jurisdiction to grant orders compelling the Auditor General to audit EPRA’s accounts, orders compelling EACC to investigate the Respondent; declarations of personal liability for public loss and orders of prohibition against continued occupation of office which are the orders sought in the present petition.
16. Whilst relying on the case of Thiba Min Hydro Co. Ltd vs Josphat Karu Ndigwa [2013] eKLR , the Petitioner asserted that the ELRC has no jurisdiction over corruption, leadership or Chapter Six matters unless they are incidental to employment disputes. The court held that:-
Multiplicity of suits must be prevented but mere overlapping parties or themes is not sufficient; the court must evaluate whether the core issues and legal basis are identical.
17. The Petitioner invoked Article 258 of the Constitution and argued that the matter involves great public interest and it should not be dismissed based on procedural avoidance. Reliance was placed in the Advisory Opinion by the Supreme Court (supra) where the court stated:-
Sub judice must not be used as a shield to prevent courts from addressing issues of grave public importance, particularly those relating to constitutional integrity, ethical fitness and misuse of public office.
18. On the issue of specificity and precision of the Petition, the petitioner relied on the case of Mumo Matemu vs Trusted Society of Human Rights Alliance [2013] eKLR where the Court of Appeal held:-
A petition must be drafted with reasonable precision but the courts must avoid formalistic interpretations which defeat access to justice under Article 48.
19. The Petitioner argued that the Petition herein sets out the specific constitutional provisions alleged to be violated, the acts and omissions of the respondent constituting the violations, the statutory framework breached and the reliefs sought which are precise and capable of response and judicial determination. He further argued that pursuant to Article 22(3)(b) of the Constitution , formalities relating to proceedings ought to be kept to a minimum. Reliance was placed in the case of John Harun Mwau vs Peter Gastrow & 3 Others [2014] eKLR where the court emphasized that:-
The Constitution should not be invoked only where there is no other recourse. But when invoked properly, as in integrity challenges, the Court must not strike out petitions unless they are incurable defective.
Analysis and Determination
20. Having considered the positions of the parties, this Court finds the following to be the issues arising for determination:
a) Whether the Preliminary objection meets the requisite threshold
b) Whether the Petition offends the doctrine of sub judice.
c) Whether the petition meets the threshold for a constitutional petition.
Whether the Preliminary objection meets the requisite threshold
21. For an objection to qualify to be raised as a Preliminary Objection, it must meet the established procedural and substantive threshold for the Court to determine it without the necessity of going into the substance or merits of the matter. The test was articulated in the cerebrated case of Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696 where the Court held thus:
…..a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
22. Sir Charles Newbold P. stated:-
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.
23. This test was approved by the Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR where it held as follows:
A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
24. Further in the case of Hassan Nyanje Charo vs Khatib Mwashetani & 3 Others, [2014] eKLR the court held that:-
Thus a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.
25. Regarding the value of preliminary objections, the Supreme Court in Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling) explained:
“21. The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement...”
26. By way of a summary therefore, proper attributes of a preliminary objection are as follows:
a) If argued successfully, a preliminary objection must lead to disposal of the suit without a trial on merits- meaning that if it is upheld, the case ends and the Court does not have to interrogate the substance of the factual dispute between the contending parties.
b) It is argued on the assumption that all the facts pleaded by the other side are correct- this means that the parties on the face value accepting opponent’s pleaded facts for purposes of the objection and arguing that even if those facts remain uncontroverted, the suit cannot validly stand in law.
c) It cannot be raised if any fact has to be ascertained by evidence- a preliminary objection would be unavailable if the Court would require to inquire into and ascertain a contested fact either by referring to an affidavit or any other form of evidence, it must be based on the pleading and the law only.
d) It cannot be raised if what is being sought is the exercise of judicial discretion – if the matter would require the Court to weigh competing interests in order to arrive at a decision, that cannot be a pure Preliminary Objection.
27. The two issues raised in this matter the principle of sub-judice and the failure to meet the threshold required pleading a constitutional Petition, any of them, if successfully, argued could dispose a matter without necessarily going to the substantive hearing on merits. The specificity threshold or sufficiency of pleading, does not require analysis of contested facts; all it requires is an examination of the Petition itself to determine whether it is sufficiently pleaded to disclose specific constitutional violations and the manner in which the violation occurred.
28. Sub-judice on the other hand may require the party alleging its existence to supply the identical parallel pleadings that it alleges are pending before another competent Court hence, there is a factual element that needs to be proved where that is contested, hence that other pleading must be placed before the court. Sub judice may thus not properly be raised as a Preliminary Objection where the existence of parallel pleading is contested, but it can be raised via a Notice of Motion application to strike out to give the Court an opportunity consider the affidavit evidence and annexures thereof. This is what the Respondent has done in the present matter. I will thus proceed and consider the two core issues, one at a time.
Whether the petition offends the doctrine of sub judice
29. The doctrine of sub judice is established in Section 6 of the Civil Procedure Act an provides:-
No court shall proceed with the trial of any suit or proceedings 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 the parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
30. Mativo J. (as he then was) discussed the concept of sub judice in Republic vs Paul Kihara Kariuki, Attorney General & 2 Others ex parte Law Society of Kenya [2020] eKLR where he stated as follows:-
…..there exists the concept of sub judice which in Latin means “under judgment.” It denotes that a matter is being considered by a court or judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding and such order can be made at any stage.
31. The Supreme Court in Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties)[2020] eKLR stated:-
The term sub judice is defined in Black’s Law Dictionary 9 th Edition as: “Before the Court or Judge for determination.” The purpose of the sub judice rule is to stop the filing of 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. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of sub judice must therefore establish that; there is more than one suit over the same subject matter, that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.
32. From the foregoing, it is clear that the key words in applying the sub judice rule is that the matter in issue is directly and substantially in issue in the previous instituted suit. The Petitioner herein filed a petition dated 2 nd June 2023 in the High Court Constitutional & Human Rights Division vide Petition No. E182 of 2023 with the parties as Francis Awino vs Daniel Kiptoo Bargoria and Attorney General and Ethics and Anti Corruption Commission as an interested party. The Petition was places before the learned Judge for directions on 5 th June 2023 and she found that the matter fell within the jurisdiction of the Employment and Labour Relations Court hence transferred it to the said Court. The said matter upon being transferred to the Employment and Labour Relations Court was given the case number ELRC Petition No. 100 of 2023. In the said petition, the petitioner sought the following orders:-
i. An order of declaration declaring that the appointment of the Respondent as the Director General of the Energy & Petroleum Regulatory Authority is illegal, irregular, unlawful and lacks any legal authority and is therefore invalid, illegal, null and void.
ii. An order of declaration declaring that the Respondent by unlawfully and irregularly being appointed as the Director General of the Energy & Petroleum Regulatory Authority grossly violated the Constitution and other legislation.
iii. An order of mandamus directed to the Public Service Commission to conduct a fresh interview and appointment of the Director General of the Energy & Petroleum Regulatory Authority.
iv. An order of mandamus compelling the Interested Party to criminally investigate and if culpable, instruct the Director of Public Prosecutions (DPP) to criminally prosecute the respondent for his flagrant breach of the law.
v. An order of declaration be issued that the Respondent is unfit to hold any other public office because he has grossly violated the Constitution and other laws and is guilty of gross misconduct.
vi. That the Honourable Court be pleased to issue and hereby issues a permanent order of prohibition prohibiting the respondent from taking any further management of EPRA.
vii. That the Honourable Court be pleased to exercise its powers under Article 23(3) of the Constitution to issue any other appropriate relief.
33. The Petitioner has filed the instant petition before this court seeking similar orders as the former petition save for the following orders:-
i. A declaration that the respondent has violated the principles enshrined in Articles 10, 73 and 232 of the Constitution of Kenya by failing to uphold and account for his administrative actions and affording adequate and equal opportunity for appointment.
ii. An order requiring the Kenya National Audit Office (KENAO) to carry out an audit of the funds used by the Respondent and ones found to have misused public funds to be held personally liable and be surcharged accordingly.
iii. An order of declaration that the respondent be surcharged for misapplying public funds.
34. A cursory glance at the two petitions shows that the substratum of both Petitions is the appointment and removal of the respondent as the Director General of EPRA. Further, the parties are similar with only the Attorney General being added as a party in the former petition and the reliefs sought are similar. It is therefore clear that as the matter in the Employment and Labour Relations Court is currently ongoing, the instant Petition dated 28 th February 2024 is sub judice .
35. On the issue of the reliefs argued by the Petitioner, he submitted that they cannot be granted by the ELRC Court. The jurisdiction of the Employment and Labour Relations Court is outlined in Section 12 of the ELRC Act where Section 12(3) provides:
In exercise of its jurisdiction under this Act, the court shall have the power to make any of the following orders:-
a) Interim preservation orders including injunctions in cases of urgency;
b) A prohibitory order;
c) An order for specific performance;
d) A declaratory order;
e) An award of compensation in any circumstances contemplated under this Act or any written law;
f) An award of damages in any circumstances contemplated under this Act or any written law;
g) An order for reinstatement of an employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose under circumstances contemplated under any written law; or
h) Any other appropriate relief as the Court may deem fit to grant.
36. It is clear that the orders sought by the Petitioner are well within the jurisdiction of the Employment and Labour Relations Court.
37. On the issue of the specificity and precision of the petition, this court will refrain from making any pronouncements on the same as the matter is currently before the ELRC Court. In any event, the Petition herein has been found to be sub judice and therefore this Court cannot make any further comments on the same.
38. Accordingly, the Application dated 10 th July 2024 and the Preliminary objection dated 11 th July 2024 are meritorious. The Court upholds the same and strikes the instant Petition.
39. As this is public interest litigation, I make no orders as to cost.
Dated, signed and delivered virtually at Nairobi this 16 th day of July, 2026.
………………………………………….
L N MUGAMBI
JUDGE
CONSTITUTIONAL PETITION NO. E104 OF 2024– RULING PAGE 16
1. The Respondent, by a Notice of Motion Application dated 10 th July 2024 and a Notice of Preliminary Objection dated 11 th July 2024, applied to strike out the Petition in limine .
2. The Preliminary objection is based on the grounds that the petition offends the doctrine of sub judice since the cause of action herein is identical to Nairobi Employment and Labour Relations Court ELRC Petition No. 100 of 2023 Francis Awino vs Daniel Kiptoo Bargoria which is pending hearing and determination. Further, that that the Petition herein has failed the test of specificity established in the case of Anarita Karimi vs Republic (No. 1)(1979) 1 KLR 154 and it is therefore fatally defective and should be struck out in limine . The application is based on similar grounds save to add that the Respondent seeks for an order staying the current proceedings pending the hearing and determination of the Nairobi ELRC Petition No. 100 of 2023 .
The Respondent’s Case
3. The Respondent’s Counsel, Faith Wamuyu, in the affidavit in support of the motion dated 10/7/2024 swore that the Petitioner has a similar Petition seeking identical reliefs in another matter , Nairobi Employment and Labour Relations Court ELRC Petition No. 100 of 2023 -Francis Awino vs Daniel Kiptoo Bargoria which came up before the learned Judge on 24 th July 2024.
4. Counsel revealed that the Petition in the Employment and Labour Relations Court was initially filed in the High Court as Constitutional Petition No. E182 of 2023 but subsequently transferred to the Employment and Labour Relations Court on 5 th June 2023 on the grounds that the matter falls within the jurisdiction of the ELRC Court.
5. Counsel contends that the two Petition in both Courts raise similar issues for determination both directly and substantially since they arise out of the same series of events. As such, the current petition is frivolous, vexatious, contemptuous and an abuse of the court process since the ELRC Court possesses the requisite jurisdiction to grant all the reliefs claimed herein.
6. Counsel contends that the filing of the current Petition whilst the one in the ELRC Court is pending is tantamount to forum shopping and an abuse of the court process. Further, Counsel contended that the instant petition does not raise any issues on violation of the Constitution hence does not meet the threshold of a constitutional petition as stipulated in the case of Anarita Karimi vs Republic (No. 1)(1979) 1 KLR 154 . Counsel stated that while the Petitioner has cites Articles 2, 3, 10, 19, 20, 21, 22, 23, 27(1), (3), (8), 131(2), 132(2)(f), 159, 165, 232, 233, 234, 249, 258, 259 & 260 of the Constitution as having been allegedly contravened, he has failed to give particulars of the said contravention within the body of the Petition. Further, while the Petitioner alleges violation of his constitutional right under Articles 10, 73 and 232 in the orders he seeks in the Petition, the particulars of the manner the Respondent violated the same are not provided.
7. Parties put in written submissions.
The Respondent’s Submissions.
8. The Respondent identified two issues for determination which are whether the instant Petition offends the doctrine of sub judice and whether the petition meets the threshold of a constitutional petition. The Respondent cited Section 6 of the Civil Procedure Act and an advisory opinion from the Supreme Court being Advisory Opinion Reference 1 of 2017 Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) where the Learned Judges defined the purpose of the doctrine of sub judice in the Kenyan judicial system thus:-
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. This means that when two or more cases are filed between the same parties on the same subject matter before court with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives. -
9. On the first requirement that the issues in the instant suit are also directly and substantially in issue in a previously instituted suit, the respondent submitted that the petitioner in the instant suit seeks the following reliefs:-
i. Declaratory orders that the appointment of the Respondent as the Director General of EPRA is illegal, irregular, unlawful and his appointment as the Director General is unconstitutional;
ii. An order for mandamus directed to the PSC (who are not party to the dispute) to conduct afresh interview and appointment of the Director General of EPRA;
iii. Declaratory orders that the Respondent is not fit to hold office due to his corrupt dealings and his continued stay in the office of the Respondent as the Director General is against public interest;
iv. An order to KENAO to carry out an audit of the funds used by the Respondent and once held to have misused public funds, to be held personally liable and be surcharged accordingly.
v. An order to the interested party to conduct investigations against the respondent with speed;
vi. A prohibitory order prohibiting the respondent from taking any further management of EPRA.
10. Whereas in Nairobi Employment and Labour Relations Court ELRC Petition No. 100 of 2023, the Petitioner seeks similar orders word for word save for order iv. Evidently both petitions relate to the appointment and removal of the Respondent as the Director General of EPRA. Furthermore, the Respondent asserted that the instant petition was initially filed before this Court before it was transferred to the ELRC Court on the grounds that the matter falls within the jurisdiction of the Employment and Labour Relations Court, a fact which the Petitioner has failed to disclose to the Court.
11. The Respondent argued that the parties in both the Petitions are the same and the previously instituted suit is still pending before a court of competent jurisdiction in Kenya to grant the reliefs sought herein. As such, the Respondent concluded that the conduct of two concurrent proceedings before two separate courts over the same subject matter bears the risk of embarrassing the trial process with the real possibility of having two conflicting decisions.
12. The Respondent further argued that the petition herein has failed to meet the threshold of a constitutional petition as established in the case of Anarita Karimi Njeru vs Republic (1979) eKLR and Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR . Apart from the Petitioner citing omnibus provisions of the constitution, the Petition does not outline the specific particulars of the alleged complaints, or the manner of alleged infringements or the jurisdictional basis of the action before the court. By the petitioner’s failure to draft the Petition with precision, the Respondent submitted that he is heavily prejudiced as he is unable to respond substantively to the alleged infringement. Reliance was placed in the case of John Harun Mwau vs Peter Gastrow & 3 Others [2014] eKLR where the court held that the Constitution only ought to be invoked when there is no other recourse for disposing the matter and in which the court expressed itself on the following terms:-
Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or some other basis, whether legal or factual, a court will usually decline to determine whether there has been in addition to a breach of the other declaration right….It is an established practice that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be invoked at all. The court will pronounce on the constitutionality of a statute only when it is necessary for the decision of the case to do so.
The Petitioner’s Submissions.
13. The Petitioner revealed that the Petition impugns the constitutional validity, legal propriety and ethical legitimacy of the Respondent’s continued occupation of the office of Director General of the Energy and Petroleum Regulatory Authority (EPRA). Specifically, the Petitioner argued that the Respondent was irregularly appointed and is grossly unfit to hold public office due to integrity deficits and has presided over serious financial and regulatory malpractices including conflict of interest, nepotism and irregular procurements, all of which compromise the rule of law and governance.
14. The Petitioner submitted that the sub judice rule does not apply to the instant petition. Reliance was placed in the Advisory opinion by the Supreme Court in Kenya National Commission on Human Rights vs Attorney General & 16 Others [2020] eKLR where it was held that for sub judice to apply, the following conditions must be met:-
i. Identity of party or parties litigating under the same title;
ii. Same subject matter in issue;
iii. The matter must be pending in a court with jurisdiction;
iv. The matter must have been previously instituted.
15. The Petitioner argued that the ELRC petition is limited to the recruitment process and the appointment of the Respondent whereas the instant Petition delves into the constitutional fitness, integrity profile and conduct in office of the Respondent under Chapter Six of the Constitution, Article 232, the Energy Act and the Anti Corruption and Economics Crimes Act. Further, he argued that the ELRC lacks the jurisdiction to grant orders compelling the Auditor General to audit EPRA’s accounts, orders compelling EACC to investigate the Respondent; declarations of personal liability for public loss and orders of prohibition against continued occupation of office which are the orders sought in the present petition.
16. Whilst relying on the case of Thiba Min Hydro Co. Ltd vs Josphat Karu Ndigwa [2013] eKLR , the Petitioner asserted that the ELRC has no jurisdiction over corruption, leadership or Chapter Six matters unless they are incidental to employment disputes. The court held that:-
Multiplicity of suits must be prevented but mere overlapping parties or themes is not sufficient; the court must evaluate whether the core issues and legal basis are identical.
17. The Petitioner invoked Article 258 of the Constitution and argued that the matter involves great public interest and it should not be dismissed based on procedural avoidance. Reliance was placed in the Advisory Opinion by the Supreme Court (supra) where the court stated:-
Sub judice must not be used as a shield to prevent courts from addressing issues of grave public importance, particularly those relating to constitutional integrity, ethical fitness and misuse of public office.
18. On the issue of specificity and precision of the Petition, the petitioner relied on the case of Mumo Matemu vs Trusted Society of Human Rights Alliance [2013] eKLR where the Court of Appeal held:-
A petition must be drafted with reasonable precision but the courts must avoid formalistic interpretations which defeat access to justice under Article 48.
19. The Petitioner argued that the Petition herein sets out the specific constitutional provisions alleged to be violated, the acts and omissions of the respondent constituting the violations, the statutory framework breached and the reliefs sought which are precise and capable of response and judicial determination. He further argued that pursuant to Article 22(3)(b) of the Constitution , formalities relating to proceedings ought to be kept to a minimum. Reliance was placed in the case of John Harun Mwau vs Peter Gastrow & 3 Others [2014] eKLR where the court emphasized that:-
The Constitution should not be invoked only where there is no other recourse. But when invoked properly, as in integrity challenges, the Court must not strike out petitions unless they are incurable defective.
Analysis and Determination
20. Having considered the positions of the parties, this Court finds the following to be the issues arising for determination:
a) Whether the Preliminary objection meets the requisite threshold
b) Whether the Petition offends the doctrine of sub judice.
c) Whether the petition meets the threshold for a constitutional petition.
Whether the Preliminary objection meets the requisite threshold
21. For an objection to qualify to be raised as a Preliminary Objection, it must meet the established procedural and substantive threshold for the Court to determine it without the necessity of going into the substance or merits of the matter. The test was articulated in the cerebrated case of Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696 where the Court held thus:
…..a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
22. Sir Charles Newbold P. stated:-
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.
23. This test was approved by the Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR where it held as follows:
A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
24. Further in the case of Hassan Nyanje Charo vs Khatib Mwashetani & 3 Others, [2014] eKLR the court held that:-
Thus a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.
25. Regarding the value of preliminary objections, the Supreme Court in Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling) explained:
“21. The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement...”
26. By way of a summary therefore, proper attributes of a preliminary objection are as follows:
a) If argued successfully, a preliminary objection must lead to disposal of the suit without a trial on merits- meaning that if it is upheld, the case ends and the Court does not have to interrogate the substance of the factual dispute between the contending parties.
b) It is argued on the assumption that all the facts pleaded by the other side are correct- this means that the parties on the face value accepting opponent’s pleaded facts for purposes of the objection and arguing that even if those facts remain uncontroverted, the suit cannot validly stand in law.
c) It cannot be raised if any fact has to be ascertained by evidence- a preliminary objection would be unavailable if the Court would require to inquire into and ascertain a contested fact either by referring to an affidavit or any other form of evidence, it must be based on the pleading and the law only.
d) It cannot be raised if what is being sought is the exercise of judicial discretion – if the matter would require the Court to weigh competing interests in order to arrive at a decision, that cannot be a pure Preliminary Objection.
27. The two issues raised in this matter the principle of sub-judice and the failure to meet the threshold required pleading a constitutional Petition, any of them, if successfully, argued could dispose a matter without necessarily going to the substantive hearing on merits. The specificity threshold or sufficiency of pleading, does not require analysis of contested facts; all it requires is an examination of the Petition itself to determine whether it is sufficiently pleaded to disclose specific constitutional violations and the manner in which the violation occurred.
28. Sub-judice on the other hand may require the party alleging its existence to supply the identical parallel pleadings that it alleges are pending before another competent Court hence, there is a factual element that needs to be proved where that is contested, hence that other pleading must be placed before the court. Sub judice may thus not properly be raised as a Preliminary Objection where the existence of parallel pleading is contested, but it can be raised via a Notice of Motion application to strike out to give the Court an opportunity consider the affidavit evidence and annexures thereof. This is what the Respondent has done in the present matter. I will thus proceed and consider the two core issues, one at a time.
Whether the petition offends the doctrine of sub judice
29. The doctrine of sub judice is established in Section 6 of the Civil Procedure Act an provides:-
No court shall proceed with the trial of any suit or proceedings 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 the parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
30. Mativo J. (as he then was) discussed the concept of sub judice in Republic vs Paul Kihara Kariuki, Attorney General & 2 Others ex parte Law Society of Kenya [2020] eKLR where he stated as follows:-
…..there exists the concept of sub judice which in Latin means “under judgment.” It denotes that a matter is being considered by a court or judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding and such order can be made at any stage.
31. The Supreme Court in Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties)[2020] eKLR stated:-
The term sub judice is defined in Black’s Law Dictionary 9 th Edition as: “Before the Court or Judge for determination.” The purpose of the sub judice rule is to stop the filing of 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. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of sub judice must therefore establish that; there is more than one suit over the same subject matter, that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.
32. From the foregoing, it is clear that the key words in applying the sub judice rule is that the matter in issue is directly and substantially in issue in the previous instituted suit. The Petitioner herein filed a petition dated 2 nd June 2023 in the High Court Constitutional & Human Rights Division vide Petition No. E182 of 2023 with the parties as Francis Awino vs Daniel Kiptoo Bargoria and Attorney General and Ethics and Anti Corruption Commission as an interested party. The Petition was places before the learned Judge for directions on 5 th June 2023 and she found that the matter fell within the jurisdiction of the Employment and Labour Relations Court hence transferred it to the said Court. The said matter upon being transferred to the Employment and Labour Relations Court was given the case number ELRC Petition No. 100 of 2023. In the said petition, the petitioner sought the following orders:-
i. An order of declaration declaring that the appointment of the Respondent as the Director General of the Energy & Petroleum Regulatory Authority is illegal, irregular, unlawful and lacks any legal authority and is therefore invalid, illegal, null and void.
ii. An order of declaration declaring that the Respondent by unlawfully and irregularly being appointed as the Director General of the Energy & Petroleum Regulatory Authority grossly violated the Constitution and other legislation.
iii. An order of mandamus directed to the Public Service Commission to conduct a fresh interview and appointment of the Director General of the Energy & Petroleum Regulatory Authority.
iv. An order of mandamus compelling the Interested Party to criminally investigate and if culpable, instruct the Director of Public Prosecutions (DPP) to criminally prosecute the respondent for his flagrant breach of the law.
v. An order of declaration be issued that the Respondent is unfit to hold any other public office because he has grossly violated the Constitution and other laws and is guilty of gross misconduct.
vi. That the Honourable Court be pleased to issue and hereby issues a permanent order of prohibition prohibiting the respondent from taking any further management of EPRA.
vii. That the Honourable Court be pleased to exercise its powers under Article 23(3) of the Constitution to issue any other appropriate relief.
33. The Petitioner has filed the instant petition before this court seeking similar orders as the former petition save for the following orders:-
i. A declaration that the respondent has violated the principles enshrined in Articles 10, 73 and 232 of the Constitution of Kenya by failing to uphold and account for his administrative actions and affording adequate and equal opportunity for appointment.
ii. An order requiring the Kenya National Audit Office (KENAO) to carry out an audit of the funds used by the Respondent and ones found to have misused public funds to be held personally liable and be surcharged accordingly.
iii. An order of declaration that the respondent be surcharged for misapplying public funds.
34. A cursory glance at the two petitions shows that the substratum of both Petitions is the appointment and removal of the respondent as the Director General of EPRA. Further, the parties are similar with only the Attorney General being added as a party in the former petition and the reliefs sought are similar. It is therefore clear that as the matter in the Employment and Labour Relations Court is currently ongoing, the instant Petition dated 28 th February 2024 is sub judice .
35. On the issue of the reliefs argued by the Petitioner, he submitted that they cannot be granted by the ELRC Court. The jurisdiction of the Employment and Labour Relations Court is outlined in Section 12 of the ELRC Act where Section 12(3) provides:
In exercise of its jurisdiction under this Act, the court shall have the power to make any of the following orders:-
a) Interim preservation orders including injunctions in cases of urgency;
b) A prohibitory order;
c) An order for specific performance;
d) A declaratory order;
e) An award of compensation in any circumstances contemplated under this Act or any written law;
f) An award of damages in any circumstances contemplated under this Act or any written law;
g) An order for reinstatement of an employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose under circumstances contemplated under any written law; or
h) Any other appropriate relief as the Court may deem fit to grant.
36. It is clear that the orders sought by the Petitioner are well within the jurisdiction of the Employment and Labour Relations Court.
37. On the issue of the specificity and precision of the petition, this court will refrain from making any pronouncements on the same as the matter is currently before the ELRC Court. In any event, the Petition herein has been found to be sub judice and therefore this Court cannot make any further comments on the same.
38. Accordingly, the Application dated 10 th July 2024 and the Preliminary objection dated 11 th July 2024 are meritorious. The Court upholds the same and strikes the instant Petition.
39. As this is public interest litigation, I make no orders as to cost.
Dated, signed and delivered virtually at Nairobi this 16 th day of July, 2026.
………………………………………….
L N MUGAMBI
JUDGE
CONSTITUTIONAL PETITION NO. E104 OF 2024– RULING PAGE 16