REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO. E712 OF 2025
IN THE MATTER OF ARTICLE 165(3)(d) AND 258(1) & 258(2)(c) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF USURPATION OF MANDATE OF TEACHERS SERVICE COMMISSION
AND
IN THE MATTER OF ENFORCEMENT OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF INTERPRETATION OF ARTICLE 235 (2) OF THE CONSTITUTION OF KENYA 2010
AND
INTERPRETATION OF ARTICLE 237(2)(c) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF CONSTITUTIONALITY OF SECTION 38 OF THE EARLY CHILDHOOD EDUCATION ACT, 2021
-BETWEEN-
STEPHEN CHAHASI LUMWAJI …………………………. PETITIONER
-VERSUS-
TEACHERS SERVICE COMMISSION ………...……. 1 ST RESPONDENT
COUNCIL OF GOVERNORS …………………………. 2 ND RESPONDENT
HON. ATTORNEY GENERAL ………………...……… 3 RD RESPONDENT
RULING ON WHETHER THE PETITION IS RES JUDICATA NAIROBI HIGH COURT CONSTITUTIONAL PETITION NO. 127 OF 2014
Introduction
1. The Petitioner herein who describes himself as a citizen of Kenya and a civil society activist filed the instant Petition in public interest under Article 258(2)(d) of the Constitution of Kenya.
2. The 1 st Respondent is the Teachers Service Commission created under Article 237 of the Constitution of Kenya.
3. The 2 nd Respondent is the Council of Governors, created under the Inter-Governmental Relations Act.
4. The 3 rd Respondent is the Hon. Attorney General, an office created under Article 156 of the Constitution of Kenya.
The Petition
5. The Petition dated 27 th October 2025 seeks the following reliefs: -
(a) THAT a declaration be and is hereby issued that Section 38 of the Early Childhood Education Act, 2021, Cap211B, Laws of Kenya, is unconstitutional to the extent that it contravenes Article 235(2) as read with Article 237(2) (c) of the Constitution of Kenya.
(b) THAT an order be and is hereby issued suspending implementation, enforcement and operationalization of Section 38 of the Early Childhood Education Act in its entirety.
(c) THAT a declaration be and is hereby issued that Early Childhood Education Teachers are subject to Teachers Service Commission.
(d) THAT this honourable court do order the Honourable Attorney General, the 3 rd Respondent herein, to offer technical support in the Implementation of the orders of this court.
(e) THAT any further or other orders that this honourable Court may deem fit to grant in the circumstances.
(f) THAT costs be provided for by the Respondents.
6. The Petition is premised on the facts outlined therein and further supported by the Petitioner’s sworn affidavit dated evenly with the Petition.
7. The Petitioner challenges the employment of Early Childhood Education (ECE) teachers by county governments, arguing that it violates Article 235(2) of the Constitution , which prohibits county public service authority over offices subject to the Teachers Service Commission (TSC). It is asserted that because ECE teachers are registered with the TSC, they are subjected to dual and overlapping disciplinary processes, under both the County Human Resource Manual and the TSC Code of Conduct, therefore violating Article 237(2)(e), which mandates TSC to register all teachers and exercise disciplinary control over them. That consequently, their employment by county governments is illegal under Article 235(2) of the Constitution.
8. It is claimed that ECE teachers currently suffer injury through dual disciplinary procedures under both the County Human Resource Manual and the TSC Code of Conduct. It is also averred that Section 38 of the Early Childhood Education Act, 2021 which assigns recruitment, registration and remuneration of ECE teachers to county governments directly contradicts Article 235(2) and Article 237(2)(c) of the Constitution .
9. That since ECE centres are public schools, the Petitioner contends that staffing must fall under the TSC as prescribed by Article 237(2)(c), meaning, County Governments lack the legal mandate to employ ECE teachers directly.
10. In response to the Petition, the Respondents filed a Notice of Preliminary Objection dated 14 th April 2026 opposing the Petition on the following grounds: -
(1) Pursuant to the provision of Section 7 of the Civil Procedure Act Cap 21 of the laws of Kenya, the Petition is res judicata as the matters in issue have been directly and substantially heard and determined by a court of competent Jurisdiction in Nairobi High Court Petition Number 127 of 2014: Kenya National Union of Teachers vs. Attorney General and 3 others.
(2) This Honourable Court lacks jurisdiction to hear and determine a Petition whose substance has been determined by a court of concurrent Jurisdiction.
(3) The Petition is bad in law, frivolous, vexatious and amounts to gross abuse of the court process.
11. The parties took directions to first canvass the Preliminary Objection by way of oral submissions. However, I note that the Petitioner herein has also filed written submissions dated 21 st June 2026 which are summarized hereunder.
12. The Petitioner relies on Article 258(1) & (2)(c) of the Constitution which grants broad locus standi to institute court proceedings alleging constitutional infringement or threat, to argue that the doctrine of res judicata does not apply. The Petitioner asserts that the present Petition introduces distinct constitutional questions and statutory provisions that were neither pleaded nor determined in the 2014 case.
13. Specifically, the Petitioner states that while Petition No. 127 of 2014 focused broadly on Article 237 establishing the TSC, Article 252 on general functions and powers of Commissions and Section 9 of Part II of the Fourth Schedule on county functions, while the instant petition specifically seeks the interpretation of Article 235(2) governing the county public service framework and the scope of staffing oversight and Article 237(2)(c) regulating the assignment of teachers employed by the TSC.
14. The Petitioner states that he seeks a declaration of unconstitutionality against Section 38 of the Early Childhood Education (ECE) Act, 2021 concerning the recruitment and management framework of ECE teachers, a statute enacted five years after the 2016 judgment in the previous petition.
15. The Petitioner highlights that under Article 165(3)(d) of the Constitution, the High Court retains original, unfettered jurisdiction to determine matters regarding constitutional interpretation, which should not be restricted by a misapplied plea of res judicata .
16. Grounding the argument in Kituo Cha Sheria v Attorney General, Supreme Court Advisory Opinion Reference No. E001 of 2023 , which establishes that the Constitution must be read holistically so that no single provision destroys another, the Petitioner asserts that barring the court from defining the phrase subject to Article 235(2) in relation to ECE teachers would create a judicial absurdity and violate his fundamental rights to access to justice and a fair hearing.
17. The Petitioner concludes by asserting that the proper interpretation of whether ECE teachers fall under the TSC or county public service is a matter of significant public interest that warrants a full hearing on the merits.
18. When the parties appeared before this Court on 22 nd June 2026, Mr. Ochieng Counsel for the 1 st Respondent submitted that the main ground in their preliminary Objection is Res Judicata in light of Petition No. 127 of 2014 and argued that the Court is devoid of jurisdiction as the matter was already determined on recruitment of ECE teachers by the County Governments from TSC.
19. Mr. Thande Kuria Counsel for the 3 rd Respondent submitted, contending that the matter was resolved in Petition 127 of 2014 and other legislation on employment of the ECE Teachers under Schedule 4 of the Constitution . He was in agreement with Mr. Ochieng that the matter is res judicata and the Petition should be struck out.
20. Mr. Lumwaji the Petitioner appearing in person submitted relying on his written submissions dated 21 st June 2026 and argued that his Petition was different. He surged that the Education system has since changed from 844 to CBC. That the 4 th Schedule talks of facilities not teaching professionals
21. He submitted that the Respondents are abdicating their responsibilities. He asserted that parties must be identical for res judicata to be valid; and that there are other issues needing constitutional interpretation. The petitioner submitted that he was not party to Petition No. 127 of 2014 and urged the Court to dismiss the Preliminary Objection maintaining that the Petition is not res judicata .
22. In a rejoinder, Mr. Ochieng submitted that the parties must not be identical for res judicata to be established and that the issues raised have already been resolved in Petition No. 127 of 2014 .
Analysis and Determination
23. I have considered the arguments for and against the preliminary objection and the main issue for determination in this ruling is whether the petition is res judicata Constitutional Petition 127 of 2014 between Kenya National Union of Teachers vs Attorney General & 4 others [2016] KEHC 8205 (KLR).
24. It is important to note that a successful raising of the plea of res judicata is a complete bar to the jurisdiction of a Court. The Supreme Court expressed itself on the doctrine of res judicata in Petition 14, 14A, 14B & 14C of 2014 (Consolidated) Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR where it delimited the operation of the doctrine of res-judicata as follows:
“[317] The concept of res judicata operates to prevent causes of action, or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings. In this case, the High Court relied on “issue estoppel”, to bar the 1st, 2nd and 3rd respondents’ claims. Issue estoppel prevents a party who previously litigated a claim (and lost), from taking a second bite at the cherry. This is a long-standing common law doctrine for bringing finality to the process of litigation; for avoiding multiplicities of proceedings; and for the protection of the integrity of the administration of justice? all in the cause of fairness in the settlement of disputes.
[318] This concept is incorporated in Section 7 of the Civil Procedure Act (Cap. 21, Laws of Kenya) which prohibits a Court from trying any issue which has been substantially in issue in an earlier suit. It thus provides:
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between 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.
[319] There are conditions to the application of the doctrine of res judicata: (i) the issue in the first suit must have been decided by a competent Court;
(ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and
(iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title Karia and Another v. The Attorney General and Others, [2005] 1 EA 83, 89.
[320] So, in the instant case, the argument concerning res judicata can only succeed when it is established that the issue brought before a Court is essentially the same as another one already satisfactorily decided, before a competent court.
[333] We find that the petition at the High Court had sought to relitigate an issue already determined by the Public Procurement Administrative Review Tribunal. Instead of contesting the Tribunal’s decision through the prescribed route of judicial review at the High Court, the 1st, 2nd and 3rd respondents instituted fresh proceedings, two years later, to challenge a decision on facts and issues finally determined. This strategy, we would observe, constitutes the very mischief that the common law doctrine of “issue estoppel” is meant to forestall. Issue estoppel “prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route” (Workers’ Compensation Board v. Figliola [2011] 3 S.C.R. 422, 438 (paragraph 28)).
[334] Whatever mode the 1st, 2nd and 3rd respondents adopted in couching their prayers, it is plain to us, they were challenging the decision of the Tribunal, in the High Court. It is a typical case that puts the Courts on guard, against litigants attempting to sidestep the doctrine of “issue estoppel”, by appending new causes of action to their grievance, while pursuing the very same case they lost previously. In Omondi v. National Bank of Kenya Ltd. & Others, [2001] EA 177 the Court held that “parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.”
[352] The Judicial Committee of the Privy Council, in Thomas v. The Attorney-General of Trinidad and Tobago, [1991] LRC (Const.) 1001 held that “when a plaintiff seeks to litigate the same issue a second time relying on fresh propositions in law he can only do so if he can demonstrate that special circumstances exist for displacing the normal rules.” That court relied on a case decided by the Supreme Court of India, Daryao & Others v. The State of UP & Others, (1961) 1 SCR 574 to find that the existence of a constitutional remedy does not affect the application of the principle of res judicata. The Indian Court also rejected the notion that res judicata could not apply to petitions seeking redress with respect to an infringement of fundamental rights. Gajendragadkar J stated:
But is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law, then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now the rule of res judicata…has no doubt some technical aspects…but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.
[353] Kenya’s High Court recently pronounced itself on the issue of the applicability of res judicata in constitutional claims. In Okiya Omtatah Okoiti & Another v. Attorney General & 6 Others, High Court Const. and Human Rights Division, Petition No. 593 of 2013 [2014] eKLR, Lenaola J. (at paragraph 64) thus stated:
Whereas these principles have generally been applied liberally in civil suits, the same cannot be said of their application in constitutional matters. I say so because, in my view, the principle of res judicata can and should only be invoked in constitutional matters in the clearest of cases and where a party is relitigating the same matter before the Constitutional Court and where the Court is called upon to redetermine an issue between the same parties and on the same subject matter. While therefore the principle is a principle of law of wide application, therefore it must be sparingly invoked in rights-based litigation and the reason is obvious.
[354] On the basis of such principles evolved in case law, it is plain to us that the 1st, 2nd and 3rd respondents were relitigating the denial to them of a BSD licence, and were asking the High Court to redetermine this issue.
[355] However, notwithstanding our findings based on the common law principles of estoppel and res- judicata, we remain keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law. By clothing their grievance as a constitutional question, the 1st, 2nd and 3rd respondents were seeking the intervention of the High Court in the firm belief that, their fundamental right had been violated by a state organ. Indeed, this is what must have informed the Court of Appeal’s view to the effect that the appellants (respondents herein) were entitled to approach the Court and have their grievance resolved on the basis of Articles 22 and 23 of the Constitution.”
25. Section 7 of the Civil Procedure Act provides:
7. No court shall, try, any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.
26. The Supreme Court pronounced itself on what the doctrineof res judicata entails in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR (Muiri Coffee case) 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. Such a perception has a basis in comparative jurisprudence; in the Ugandan case of Hon Norbert Mao v Attorney-General, Constitutional Petition No 9 of 2002; [2003] UGCC3, the petitioner brought an action on behalf of 21 persons from his constituency, for declarations under article 137 of the Uganda Constitution, and for redress under article 50 of that Constitution. The matter arose from an incident in which officers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them. Unknown to the petitioner, another action had already been filed under article 50, seeking similar relief; and Judgment had been given in Hon Ronald Reagan Okumu v Attorney-General, Misc Application No0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the petition, on a plea of res judicata, declining the petitioner’s pleas that certain important constitutional declarations now sought, had not been accommodated in the earlier Judgment.
53. In Silas Make Otuke v Attorney-General & 3 others, [2014] eKLR, the High Court of Kenya agreed with the Privy Council decision in Thomas v The AG of Trinidad and Tobago (1991) LRC (Const) 1001, in which the Board was “satisfied that the existence of a constitutional remedy as that upon which the appellant relies does not affect the application of the principle of res judicata”.
54.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.
55. It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.
56. The learned authors of Mulla, Code of Civil Procedure, 18 th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):
“The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”
57. The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:
… 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” [emphasis supplied].
58. Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, [2010] eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.
59. That courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in ET v Attorney-General & another, [2012] eKLR, thus:
“The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and others, [2001] EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J, in the case of Njangu v Wambugu and another Nairobi HCCC No 2340 of 1991 (unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…..”
27. The Court of Appeal in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR (which decision was overturned by the Supreme Court) but discussed the doctrine of res judicata at length. The apex Court stated in part as follows:
“The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unravelling uncontrollably. In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence. It is a doctrine of general application and it matters not whether the proceedings in which it is raised are constitutional in nature. The general consensus therefore remains that res judicata being a fundamental principle of law that relates to the jurisdiction of the court, may be raised as a valid defence to a constitutional claim even on the basis of the court's inherent power to prevent abuse of process under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. On the whole, it is recognized that its scope may permeate broad aspects of civil law and practice. We accordingly do not accept the proposition that Constitution-based litigation cannot be subjected to the doctrine of res judicata. However, we must hasten to add that it should only be invoked in constitutional litigation in the clearest of the cases. It must be sparingly invoked and the reasons are obvious as rights keep on evolving, mutating, and assuming multifaceted dimensions.
We also resist the invitation by the appellants to hold that all constitutional petitions must be heard and disposed of on merit and that parties should not be barred from the citadel of justice on the basis of technicalities and rules of procedure which have no place in the new constitutional dispensation. The doctrine is not a technicality. It goes to the root of the jurisdiction of the court to entertain a dispute. If it is successfully ventilated, the doctrine will deny the court entertaining the dispute jurisdiction to take any further steps in the matter with the consequence that the suit will be struck out for being res judicata. That will close the chapter on the dispute. If the doctrine has such end result, how can it be said that it is a mere technicality" If a constitutional petition is bad in law from the onset, nothing stops the court from dealing with it peremptorily and having it immediately disposed of. There is no legal requirement that such litigation must be heard and determined on merit. From our expose of the doctrine above, we are now able to formally answer the issues isolated for determination in this appeal earlier as follows: -
i) The doctrine of res judicata is applicable to constitutional litigation just as in other civil litigation as it is a doctrine of general application with a rider, however, that it should be invoked in constitutional litigation in rarest and in the clearest of cases.
ii) ii) There is no legal requirement or factual basis for the submission that the doctrine must only be invoked and or ventilated through a formal application. It can be raised through pleadings as well as by way of preliminary objection.
iii) iii) The ingredients of res judicata must be given a wider interpretation; the issue in dispute in the two cases must be the same or substantially the same as in the previous case, parties to the two suits should be the same or parties under whom they or any of them is claiming or litigating under the same title and lastly, the earlier claim must have been determined by a competent court.
28. Section 38 of the Early Childhood Education Act provides
38. Recruitment of early childhood teachers
(1) The county government shall be responsible for the—
(a)recruitment and professional development of early childhood education teachers in public education centres within the county; and
(b)maintenance of a register of early childhood education teachers recruited by it under paragraph (a).
(2) The county government shall pay to early childhood education teachers employed in public education centres within the county, such remuneration as it shall, in consultation with the Salaries and Remuneration Commission, determine.
29. In the Kenya National Union of Teachers v Attorney General & 4 others [2016] KEHC 8205 (KLR) , constitutional Petition No. 127 of 2014, [the KNUT] determination, the Court stated as follows:
43. As stated earlier, this Petition concerns an interpretation of the question whether the recruitment of ECE tea
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO. E712 OF 2025
IN THE MATTER OF ARTICLE 165(3)(d) AND 258(1) & 258(2)(c) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF USURPATION OF MANDATE OF TEACHERS SERVICE COMMISSION
AND
IN THE MATTER OF ENFORCEMENT OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF INTERPRETATION OF ARTICLE 235 (2) OF THE CONSTITUTION OF KENYA 2010
AND
INTERPRETATION OF ARTICLE 237(2)(c) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF CONSTITUTIONALITY OF SECTION 38 OF THE EARLY CHILDHOOD EDUCATION ACT, 2021
-BETWEEN-
STEPHEN CHAHASI LUMWAJI …………………………. PETITIONER
-VERSUS-
TEACHERS SERVICE COMMISSION ………...……. 1 ST RESPONDENT
COUNCIL OF GOVERNORS …………………………. 2 ND RESPONDENT
HON. ATTORNEY GENERAL ………………...……… 3 RD RESPONDENT
RULING ON WHETHER THE PETITION IS RES JUDICATA NAIROBI HIGH COURT CONSTITUTIONAL PETITION NO. 127 OF 2014
Introduction
1. The Petitioner herein who describes himself as a citizen of Kenya and a civil society activist filed the instant Petition in public interest under Article 258(2)(d) of the Constitution of Kenya.
2. The 1 st Respondent is the Teachers Service Commission created under Article 237 of the Constitution of Kenya.
3. The 2 nd Respondent is the Council of Governors, created under the Inter-Governmental Relations Act.
4. The 3 rd Respondent is the Hon. Attorney General, an office created under Article 156 of the Constitution of Kenya.
The Petition
5. The Petition dated 27 th October 2025 seeks the following reliefs: -
(a) THAT a declaration be and is hereby issued that Section 38 of the Early Childhood Education Act, 2021, Cap211B, Laws of Kenya, is unconstitutional to the extent that it contravenes Article 235(2) as read with Article 237(2) (c) of the Constitution of Kenya.
(b) THAT an order be and is hereby issued suspending implementation, enforcement and operationalization of Section 38 of the Early Childhood Education Act in its entirety.
(c) THAT a declaration be and is hereby issued that Early Childhood Education Teachers are subject to Teachers Service Commission.
(d) THAT this honourable court do order the Honourable Attorney General, the 3 rd Respondent herein, to offer technical support in the Implementation of the orders of this court.
(e) THAT any further or other orders that this honourable Court may deem fit to grant in the circumstances.
(f) THAT costs be provided for by the Respondents.
6. The Petition is premised on the facts outlined therein and further supported by the Petitioner’s sworn affidavit dated evenly with the Petition.
7. The Petitioner challenges the employment of Early Childhood Education (ECE) teachers by county governments, arguing that it violates Article 235(2) of the Constitution , which prohibits county public service authority over offices subject to the Teachers Service Commission (TSC). It is asserted that because ECE teachers are registered with the TSC, they are subjected to dual and overlapping disciplinary processes, under both the County Human Resource Manual and the TSC Code of Conduct, therefore violating Article 237(2)(e), which mandates TSC to register all teachers and exercise disciplinary control over them. That consequently, their employment by county governments is illegal under Article 235(2) of the Constitution.
8. It is claimed that ECE teachers currently suffer injury through dual disciplinary procedures under both the County Human Resource Manual and the TSC Code of Conduct. It is also averred that Section 38 of the Early Childhood Education Act, 2021 which assigns recruitment, registration and remuneration of ECE teachers to county governments directly contradicts Article 235(2) and Article 237(2)(c) of the Constitution .
9. That since ECE centres are public schools, the Petitioner contends that staffing must fall under the TSC as prescribed by Article 237(2)(c), meaning, County Governments lack the legal mandate to employ ECE teachers directly.
10. In response to the Petition, the Respondents filed a Notice of Preliminary Objection dated 14 th April 2026 opposing the Petition on the following grounds: -
(1) Pursuant to the provision of Section 7 of the Civil Procedure Act Cap 21 of the laws of Kenya, the Petition is res judicata as the matters in issue have been directly and substantially heard and determined by a court of competent Jurisdiction in Nairobi High Court Petition Number 127 of 2014: Kenya National Union of Teachers vs. Attorney General and 3 others.
(2) This Honourable Court lacks jurisdiction to hear and determine a Petition whose substance has been determined by a court of concurrent Jurisdiction.
(3) The Petition is bad in law, frivolous, vexatious and amounts to gross abuse of the court process.
11. The parties took directions to first canvass the Preliminary Objection by way of oral submissions. However, I note that the Petitioner herein has also filed written submissions dated 21 st June 2026 which are summarized hereunder.
12. The Petitioner relies on Article 258(1) & (2)(c) of the Constitution which grants broad locus standi to institute court proceedings alleging constitutional infringement or threat, to argue that the doctrine of res judicata does not apply. The Petitioner asserts that the present Petition introduces distinct constitutional questions and statutory provisions that were neither pleaded nor determined in the 2014 case.
13. Specifically, the Petitioner states that while Petition No. 127 of 2014 focused broadly on Article 237 establishing the TSC, Article 252 on general functions and powers of Commissions and Section 9 of Part II of the Fourth Schedule on county functions, while the instant petition specifically seeks the interpretation of Article 235(2) governing the county public service framework and the scope of staffing oversight and Article 237(2)(c) regulating the assignment of teachers employed by the TSC.
14. The Petitioner states that he seeks a declaration of unconstitutionality against Section 38 of the Early Childhood Education (ECE) Act, 2021 concerning the recruitment and management framework of ECE teachers, a statute enacted five years after the 2016 judgment in the previous petition.
15. The Petitioner highlights that under Article 165(3)(d) of the Constitution, the High Court retains original, unfettered jurisdiction to determine matters regarding constitutional interpretation, which should not be restricted by a misapplied plea of res judicata .
16. Grounding the argument in Kituo Cha Sheria v Attorney General, Supreme Court Advisory Opinion Reference No. E001 of 2023 , which establishes that the Constitution must be read holistically so that no single provision destroys another, the Petitioner asserts that barring the court from defining the phrase subject to Article 235(2) in relation to ECE teachers would create a judicial absurdity and violate his fundamental rights to access to justice and a fair hearing.
17. The Petitioner concludes by asserting that the proper interpretation of whether ECE teachers fall under the TSC or county public service is a matter of significant public interest that warrants a full hearing on the merits.
18. When the parties appeared before this Court on 22 nd June 2026, Mr. Ochieng Counsel for the 1 st Respondent submitted that the main ground in their preliminary Objection is Res Judicata in light of Petition No. 127 of 2014 and argued that the Court is devoid of jurisdiction as the matter was already determined on recruitment of ECE teachers by the County Governments from TSC.
19. Mr. Thande Kuria Counsel for the 3 rd Respondent submitted, contending that the matter was resolved in Petition 127 of 2014 and other legislation on employment of the ECE Teachers under Schedule 4 of the Constitution . He was in agreement with Mr. Ochieng that the matter is res judicata and the Petition should be struck out.
20. Mr. Lumwaji the Petitioner appearing in person submitted relying on his written submissions dated 21 st June 2026 and argued that his Petition was different. He surged that the Education system has since changed from 844 to CBC. That the 4 th Schedule talks of facilities not teaching professionals
21. He submitted that the Respondents are abdicating their responsibilities. He asserted that parties must be identical for res judicata to be valid; and that there are other issues needing constitutional interpretation. The petitioner submitted that he was not party to Petition No. 127 of 2014 and urged the Court to dismiss the Preliminary Objection maintaining that the Petition is not res judicata .
22. In a rejoinder, Mr. Ochieng submitted that the parties must not be identical for res judicata to be established and that the issues raised have already been resolved in Petition No. 127 of 2014 .
Analysis and Determination
23. I have considered the arguments for and against the preliminary objection and the main issue for determination in this ruling is whether the petition is res judicata Constitutional Petition 127 of 2014 between Kenya National Union of Teachers vs Attorney General & 4 others [2016] KEHC 8205 (KLR).
24. It is important to note that a successful raising of the plea of res judicata is a complete bar to the jurisdiction of a Court. The Supreme Court expressed itself on the doctrine of res judicata in Petition 14, 14A, 14B & 14C of 2014 (Consolidated) Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR where it delimited the operation of the doctrine of res-judicata as follows:
“[317] The concept of res judicata operates to prevent causes of action, or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings. In this case, the High Court relied on “issue estoppel”, to bar the 1st, 2nd and 3rd respondents’ claims. Issue estoppel prevents a party who previously litigated a claim (and lost), from taking a second bite at the cherry. This is a long-standing common law doctrine for bringing finality to the process of litigation; for avoiding multiplicities of proceedings; and for the protection of the integrity of the administration of justice? all in the cause of fairness in the settlement of disputes.
[318] This concept is incorporated in Section 7 of the Civil Procedure Act (Cap. 21, Laws of Kenya) which prohibits a Court from trying any issue which has been substantially in issue in an earlier suit. It thus provides:
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between 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.
[319] There are conditions to the application of the doctrine of res judicata: (i) the issue in the first suit must have been decided by a competent Court;
(ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and
(iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title Karia and Another v. The Attorney General and Others, [2005] 1 EA 83, 89.
[320] So, in the instant case, the argument concerning res judicata can only succeed when it is established that the issue brought before a Court is essentially the same as another one already satisfactorily decided, before a competent court.
[333] We find that the petition at the High Court had sought to relitigate an issue already determined by the Public Procurement Administrative Review Tribunal. Instead of contesting the Tribunal’s decision through the prescribed route of judicial review at the High Court, the 1st, 2nd and 3rd respondents instituted fresh proceedings, two years later, to challenge a decision on facts and issues finally determined. This strategy, we would observe, constitutes the very mischief that the common law doctrine of “issue estoppel” is meant to forestall. Issue estoppel “prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route” (Workers’ Compensation Board v. Figliola [2011] 3 S.C.R. 422, 438 (paragraph 28)).
[334] Whatever mode the 1st, 2nd and 3rd respondents adopted in couching their prayers, it is plain to us, they were challenging the decision of the Tribunal, in the High Court. It is a typical case that puts the Courts on guard, against litigants attempting to sidestep the doctrine of “issue estoppel”, by appending new causes of action to their grievance, while pursuing the very same case they lost previously. In Omondi v. National Bank of Kenya Ltd. & Others, [2001] EA 177 the Court held that “parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.”
[352] The Judicial Committee of the Privy Council, in Thomas v. The Attorney-General of Trinidad and Tobago, [1991] LRC (Const.) 1001 held that “when a plaintiff seeks to litigate the same issue a second time relying on fresh propositions in law he can only do so if he can demonstrate that special circumstances exist for displacing the normal rules.” That court relied on a case decided by the Supreme Court of India, Daryao & Others v. The State of UP & Others, (1961) 1 SCR 574 to find that the existence of a constitutional remedy does not affect the application of the principle of res judicata. The Indian Court also rejected the notion that res judicata could not apply to petitions seeking redress with respect to an infringement of fundamental rights. Gajendragadkar J stated:
But is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law, then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now the rule of res judicata…has no doubt some technical aspects…but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.
[353] Kenya’s High Court recently pronounced itself on the issue of the applicability of res judicata in constitutional claims. In Okiya Omtatah Okoiti & Another v. Attorney General & 6 Others, High Court Const. and Human Rights Division, Petition No. 593 of 2013 [2014] eKLR, Lenaola J. (at paragraph 64) thus stated:
Whereas these principles have generally been applied liberally in civil suits, the same cannot be said of their application in constitutional matters. I say so because, in my view, the principle of res judicata can and should only be invoked in constitutional matters in the clearest of cases and where a party is relitigating the same matter before the Constitutional Court and where the Court is called upon to redetermine an issue between the same parties and on the same subject matter. While therefore the principle is a principle of law of wide application, therefore it must be sparingly invoked in rights-based litigation and the reason is obvious.
[354] On the basis of such principles evolved in case law, it is plain to us that the 1st, 2nd and 3rd respondents were relitigating the denial to them of a BSD licence, and were asking the High Court to redetermine this issue.
[355] However, notwithstanding our findings based on the common law principles of estoppel and res- judicata, we remain keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law. By clothing their grievance as a constitutional question, the 1st, 2nd and 3rd respondents were seeking the intervention of the High Court in the firm belief that, their fundamental right had been violated by a state organ. Indeed, this is what must have informed the Court of Appeal’s view to the effect that the appellants (respondents herein) were entitled to approach the Court and have their grievance resolved on the basis of Articles 22 and 23 of the Constitution.”
25. Section 7 of the Civil Procedure Act provides:
7. No court shall, try, any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.
26. The Supreme Court pronounced itself on what the doctrineof res judicata entails in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR (Muiri Coffee case) 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. Such a perception has a basis in comparative jurisprudence; in the Ugandan case of Hon Norbert Mao v Attorney-General, Constitutional Petition No 9 of 2002; [2003] UGCC3, the petitioner brought an action on behalf of 21 persons from his constituency, for declarations under article 137 of the Uganda Constitution, and for redress under article 50 of that Constitution. The matter arose from an incident in which officers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them. Unknown to the petitioner, another action had already been filed under article 50, seeking similar relief; and Judgment had been given in Hon Ronald Reagan Okumu v Attorney-General, Misc Application No0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the petition, on a plea of res judicata, declining the petitioner’s pleas that certain important constitutional declarations now sought, had not been accommodated in the earlier Judgment.
53. In Silas Make Otuke v Attorney-General & 3 others, [2014] eKLR, the High Court of Kenya agreed with the Privy Council decision in Thomas v The AG of Trinidad and Tobago (1991) LRC (Const) 1001, in which the Board was “satisfied that the existence of a constitutional remedy as that upon which the appellant relies does not affect the application of the principle of res judicata”.
54.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.
55. It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.
56. The learned authors of Mulla, Code of Civil Procedure, 18 th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):
“The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”
57. The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:
… 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” [emphasis supplied].
58. Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, [2010] eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.
59. That courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in ET v Attorney-General & another, [2012] eKLR, thus:
“The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and others, [2001] EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J, in the case of Njangu v Wambugu and another Nairobi HCCC No 2340 of 1991 (unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…..”
27. The Court of Appeal in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR (which decision was overturned by the Supreme Court) but discussed the doctrine of res judicata at length. The apex Court stated in part as follows:
“The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unravelling uncontrollably. In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence. It is a doctrine of general application and it matters not whether the proceedings in which it is raised are constitutional in nature. The general consensus therefore remains that res judicata being a fundamental principle of law that relates to the jurisdiction of the court, may be raised as a valid defence to a constitutional claim even on the basis of the court's inherent power to prevent abuse of process under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. On the whole, it is recognized that its scope may permeate broad aspects of civil law and practice. We accordingly do not accept the proposition that Constitution-based litigation cannot be subjected to the doctrine of res judicata. However, we must hasten to add that it should only be invoked in constitutional litigation in the clearest of the cases. It must be sparingly invoked and the reasons are obvious as rights keep on evolving, mutating, and assuming multifaceted dimensions.
We also resist the invitation by the appellants to hold that all constitutional petitions must be heard and disposed of on merit and that parties should not be barred from the citadel of justice on the basis of technicalities and rules of procedure which have no place in the new constitutional dispensation. The doctrine is not a technicality. It goes to the root of the jurisdiction of the court to entertain a dispute. If it is successfully ventilated, the doctrine will deny the court entertaining the dispute jurisdiction to take any further steps in the matter with the consequence that the suit will be struck out for being res judicata. That will close the chapter on the dispute. If the doctrine has such end result, how can it be said that it is a mere technicality" If a constitutional petition is bad in law from the onset, nothing stops the court from dealing with it peremptorily and having it immediately disposed of. There is no legal requirement that such litigation must be heard and determined on merit. From our expose of the doctrine above, we are now able to formally answer the issues isolated for determination in this appeal earlier as follows: -
i) The doctrine of res judicata is applicable to constitutional litigation just as in other civil litigation as it is a doctrine of general application with a rider, however, that it should be invoked in constitutional litigation in rarest and in the clearest of cases.
ii) ii) There is no legal requirement or factual basis for the submission that the doctrine must only be invoked and or ventilated through a formal application. It can be raised through pleadings as well as by way of preliminary objection.
iii) iii) The ingredients of res judicata must be given a wider interpretation; the issue in dispute in the two cases must be the same or substantially the same as in the previous case, parties to the two suits should be the same or parties under whom they or any of them is claiming or litigating under the same title and lastly, the earlier claim must have been determined by a competent court.
28. Section 38 of the Early Childhood Education Act provides
38. Recruitment of early childhood teachers
(1) The county government shall be responsible for the—
(a)recruitment and professional development of early childhood education teachers in public education centres within the county; and
(b)maintenance of a register of early childhood education teachers recruited by it under paragraph (a).
(2) The county government shall pay to early childhood education teachers employed in public education centres within the county, such remuneration as it shall, in consultation with the Salaries and Remuneration Commission, determine.
29. In the Kenya National Union of Teachers v Attorney General & 4 others [2016] KEHC 8205 (KLR) , constitutional Petition No. 127 of 2014, [the KNUT] determination, the Court stated as follows:
43. As stated earlier, this Petition concerns an interpretation of the question whether the recruitment of ECE tea
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