Nderitu v Teachers Service Commission & another (Petition E023 of 2024) [2025] KEELRC 591 (KLR)
The bottom line
#A teacher's second attempt to challenge his 2012 TSC dismissal failed because Kenyan courts will not rehear issues already decided between the same parties.
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 preliminary objection dated 15th May 2024 is merited, i.e. whether the Petition is res judicata in view of Nakuru ELRC Petition No. 11 of 2018 and Nakuru Civil Appeal No. 41 of 2019, and/or time barred
Key legal issues
#Whether the Petition is res judicata
Yes. The instant Petition raises the same issues between the same parties as Nakuru ELRC Petition No. 11 of 2018, which was heard and concluded, and whose dismissal was upheld by the Court of Appeal in Civil Appeal No. 41 of 2019.
The court compared the prayers in the 2024 Petition with those in Petition 11 of 2018 and found both arise from the same 2012 disciplinary cause of action, involve the same parties litigating under the same title, and were heard and finally determined. The Court of Appeal had already upheld the dismissal. Section 7 of the Civil Procedure Act and the John Florence and IEBC v Maina Kiai authorities on the conjunctive elements of res judicata were applied.
Whether the exemption to res judicata for potential substantial injustice in constitutional matters applies
No. The prior ruling by Mbaru J established that the dispute is an ordinary employer/employee matter, not a constitutional matter, so the exemption does not avail the Petitioner.
The Petitioner argued that issues of constitutional rights infringement under Article 258 and the lack of timelines in the TSC Code of Regulations distinguished the present Petition and invoked the John Florence exemption for substantial injustice. The court rejected this, holding that the prior ruling established the matter as purely an employer/employee dispute, and that even otherwise the ELRC may lack jurisdiction over the constitutional questions sought to be raised.
Whether the claim is time barred and within the ELRC's jurisdiction
The Petition is time barred as an employer/employee dispute; remedies lie under the Employment Act and the ELRC Act, and the claim, arising from an October 2012 dismissal, was filed out of time.
The dismissal took effect on 18th October 2012 and the first petition was filed on 21st September 2018. Mbaru J's ruling held the remedies sought could only issue under the Employment Act, 2007 and the Employment and Labour Relations Court Act, 2011, and filing a petition did not cure the time bar. The Court of Appeal upheld that decision. The court also observed that the constitutional questions raised might fall outside the ELRC's specialised mandate per the Kakamega County Government case.
Legal principles established
#- The doctrine of res judicata applies to constitutional petitions and bars re-litigation of issues already determined by a competent court between the same parties
- The elements of res judicata under section 7 of the Civil Procedure Act are conjunctive and must all be satisfied
- Instituting a subsequent suit on the same subject matter already litigated and dismissed on appeal is an abuse of the court process
Court orders
#- 1.The preliminary objection dated 15th May 2024 is allowed, having established that the Petition is res judicata
- 2.The Petition dated 22nd April 2024 is dismissed
- 3.Each party to meet their own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution (Employment and Labour Relations Court); jurisdiction contested on res judicata under section 7 of the Civil Procedure Act
Relief refused
#All reliefs sought in the Petition (declarations of unconstitutionality of sections 146, 149 and 156 of the TSC Code of Regulations, violation of Articles 47(1) and 50(2)(e), damages, setting aside of the TSC review committee decision, reinstatement and payment of dues)
The Petition is res judicata, the same issues having been heard and determined in Nakuru ELRC Petition No. 11 of 2018 and the subsequent appeal dismissed by the Court of Appeal; the claim is also time barred as an employer/employee dispute
Costs
The court orders respective parties meet their costs herein (i.e. each party to bear their own costs)
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.
the preliminary objection dated 15th May, 2024 is merited and so is allowed having established the petition is res judicata.
The court orders respective parties meet their costs herein.
As it were litigation has to come to an end and this is such one case that the court has to bring any further litigation to a halt.
The doctrine of res judicata, in efiect, allows a litigant only one bite at the cherry.
The court finds there is no doubt this application is a replica more or less of Petition 11 of 2018.
Issues in the judgment
#The judgment misquotes section 7 of the Civil Procedure Act in paragraph 25, differing from the fuller quotation at paragraph 6
The court states the prior Nakuru ELRC Petition No. 11 of 2018 was determined by a 'ruling' delivered by Mbaru J on 29th April 2019, describing it variously as a ruling and a judgment
The outcome on reliefs is expressed as dismissal of the petition via allowance of the preliminary objection, but the final orders section does not contain an express formal order of dismissal; dismissal is implied by 'Order accordingly'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nderitu v Teachers Service Commission & another (Petition E023 of 2024) [2025] KEELRC 591 (KLR)", Case Analysis (2025). Petition dated 22nd April 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/591/eng@2025-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.