Nancy Njoroge v County Executive of Murang’a & 2 others [2016] KEELRC 110 (KLR)
The bottom line
#Murang'a County illegally restarted a public board recruitment to favour a new candidate, and the Nyeri Employment Court stopped it and awarded costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the present suit is res judicata in view of the previously decided suit Rahab Gathoni Gichohi v Murang'a County Government, Petition No. ELRC 5 of 2016 at Nyeri
- 2.Whether the second recruitment process was lawful in view of the unfinished or pending first recruitment process
- 3.Whether the petitioner is entitled to the remedies as prayed for
Key legal issues
#Res judicata
The suit is not res judicata; the parties differ and the issues arose after the earlier judgment.
The three essential elements of res judicata are an earlier decision on the issue, a final judgment on the merits, and the same parties or their privities. The petitioner was not a party to the earlier suit; filing a supporting affidavit there did not make her a party. Some material facts, such as the interested party's nomination for approval, arose after the earlier judgment of 18.11.2016 and could not have been raised then even with due diligence. The preliminary objection therefore failed.
Lawfulness of the second recruitment process
The second recruitment process was unlawful because the first process was unconcluded and the declaring authority was functus officio.
The initial recruitment commenced and its outcome was never communicated nor was the process cancelled. Having declared the vacancy publicly, the county government's power to redeclare it was exhausted. There was thus no vacancy to re-advertise and no authority to recruit afresh for the same office. Further, terminating the first process to prevent the petitioner's fair evaluation, under pressure and intimidation from the governor, contravened Articles 232 and 236 of the Constitution, and the petitioner had a legitimate expectation to receive the results of the first process.
Remedies
The petitioner is entitled to the declarations and orders as prayed, her uncontroverted evidence having established the pleaded facts.
Having found the second recruitment unlawful and the petitioner's constitutional rights under Articles 27 and 232 contravened, the court found her entitled as prayed. Her affidavit evidence was not specifically controverted by the respondents, and the claims of unfair pressure, discrimination and favouritism stood unrebutted.
Legal principles established
#- Filing a supporting affidavit does not make the deponent a party to a suit for purposes of res judicata.
- Once a public body declares a vacancy and invites applicants, its power to redeclare the vacancy is exhausted while the process remains unconcluded - functus officio.
- Public officers are protected from victimization or intimidation for performing lawful duties under Article 236 of the Constitution.
Court orders
#- 1.Declaration that the refusal of the 1st respondent to process the petitioner's appointment as chairperson per the Manpower Services recommendations violated her rights under Articles 27 and 232 of the Constitution
- 2.Order directing the 1st and 2nd respondents to proceed with the recruitment of the chairperson only in accordance with the process undertaken and recommendations made by Manpower Services
- 3.Order stopping the continued processing of the interested party or any other person as chairperson following the 2nd irregular recruitment exercise
- 4.Respondents to pay the petitioner's costs of the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 12(1)(a) of the Employment and Labour Relations Court Act, Cap. 24B; Articles 41 and 232 of the Constitution
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is the opinion of the court that filing of an affidavit in a suit does not make the maker of the affidavit a party to a suit.
once the vacancy was declared to the public by way of the initial advertisement, the county government or the governor's power to make such declaration of the vacancy and to invite applicants was thereby exhausted – it was functus officio so that there was no vacancy to be redeclared
the petitioner was entitled not to apply after the second advertisement as she had a legitimate expectation to receive the results of the process she had already participated in.
the 1st respondent's actions amounted to contravention of Article 236 of the Constitution that protects public officers from victimization or intimidation for having performed the duties of the office held in accordance with the law.
judgment is hereby entered for the petitioner against the respondents
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nancy Njoroge v County Executive of Murang’a & 2 others [2016] KEELRC 110 (KLR)", Case Analysis (2016). Petition filed 02.12.2016, Employment and Labour Relations Court at Nyeri (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/110/eng@2016-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.