Consumer Federation of Kenya v Cabinet Secretary for Environment & Forestry & 3 others; Kenya School of Government & another (Interested Parties) (Petition E072 of 2020) [2021] KEELRC 1461 (KLR)
The bottom line
#Kenya's Employment Court allowed COFEK's challenge to NEMA's Director General appointment to proceed, rejecting NEMA's attempt to strike it out as repetitive litigation.
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 petition herein is res judicata
- 2.Whether the petition is sub judice
- 3.Whether the preliminary objection is a proper preliminary objection on a pure point of law
Key legal issues
#Whether the petition is res judicata by reason of prior ELRC suits concerning NEMA appointments
The objection fails because the referenced suits concerned different causes of action and different parties - the appointment of an Acting Chief Procurement Officer, not the Director General's appointment
The court compared the referenced suits (JR 5 of 2020, Misc 168 of 2019, Misc 45 of 2020) with the instant petition. The earlier suits challenged the appointment of Mr Laban Gichohi and later Ms Evangeline Kinya Ratanya as Acting Chief Procurement Officer, whereas the petition challenges the appointment of Mamo Boru Mamo as Director General on grounds of qualifications under EMCA and alleged fraud. Although NEMA is a common respondent, the fundamental issue in dispute differs, so Section 7's conjunctive elements are not met.
Whether the pending Court of Appeal matter renders the petition sub judice
The sub judice rule does not apply because the pending appeal arises from suits unrelated to the petition
The 3rd respondent relied on Nairobi Court of Appeal Civil Application Nai 17 of 2020 to argue sub judice. The court found that this appeal arose from other suits unrelated to the instant petition, and therefore the sub judice rule was not attracted. The petition could proceed notwithstanding the pending appeal and the pending JR 5 of 2020.
Legal principles established
#- For res judicata to be upheld, the elements of Section 7 of the Civil Procedure Act must be satisfied conjunctively
- A preliminary objection must raise a pure point of law on assumed facts
Court orders
#- 1.Objections by the 3rd respondent are found without merit and dismissed
- 2.Costs shall abide the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment and Labour Relations Court Act (not expressly cited); ruling on a preliminary objection under Section 7 of the Civil Procedure Act
Relief refused
#3rd respondent's request that the petition be struck out for being res judicata and sub judice
The causes of action and parties in the referenced suits differ from the instant petition; the pending appeal arises from unrelated suits
Costs
costs shall abide the petition
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.
Accordingly, objections by the 3rd respondent are hereby found without merit and are dismissed. costs shall abide the petition.
the causes of action in the instant petition weighed against Nairobi ELRC JR 5 of 2020 and Nairobi ELRC 168 of 2019 are difierent and relates to difierent parties.
such appeal and or matter having arisen from other suits unrelated to the instant petition, the sub judice rules does not apply.
The doctrine of res judicata is therefore meant to lock out from the court system a party who has had his day in a court of competent jurisdiction from re-litigating the same issues against the same opponent.
Issues in the judgment
#The judgment inconsistently describes the fate and identity of prior suits: at one point NEMA states ELRC 168 of 2019 was concluded, elsewhere it says the applicant in Misc 168 of 2019 'is seeking leave to institute Judicial Review proceedings', and paragraph 3 lists 'ELRC Misc.167 of 2019' while paragraph 6 refers to 'ELRC 167 of 2018'
Paragraph 34 contains an apparent textual gap: 'On 27th December 2019, the 3rd Respondent Ms Evangeline Kinya Ratanya (the 10th Respondent herein) as Acting Chief Procurement Oficer' omits the appointing verb
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Consumer Federation of Kenya v Cabinet Secretary for Environment & Forestry & 3 others; Kenya School of Government & another (Interested Parties) (Petition E072 of 2020) [2021] KEELRC 1461 (KLR)", Case Analysis (2021). Nairobi ELRC Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1461/eng@2021-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.