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ELRCStruck OutNot stated in the judgment

Nyariki & 3 others v County Government of Nyamira & 2 others (Petition E055 of 2021) [2025] KEELRC 1829 (KLR)

Employment and Labour Relations Court
24 June 2025
2,767 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out repeated contempt applications because they copied an earlier one already decided — you generally get one bite at the cherry.

What this practically means

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Executive summary

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The petitioners, former Nyamira County Government staff, moved the court by Notices of Motion dated 5th February 2025 and 9th April 2025 seeking committal of six county officers (the Governor, CEC Finance, Chief Finance Officer, Board Chairman, Payroll Manager and HRM Director) for contempt of orders issued on 31st January 2022 and a consent adopted as judgment on 7th February 2022, particularly the non-payment of house allowances, plus fines and costs. The respondents replied through the affidavit of Rael Kwamboka Momanyi and raised a preliminary objection that the motions were res judicata an identical application dated 15th September 2023 which the court heard and dismissed on 6th June 2024, and which was neither reviewed nor appealed. Both sides cited Mukisa Biscuit on preliminary objections; the respondents relied on the Maina Kiai decision on res judicata, while the petitioners argued the objection was an afterthought and that they had obtained leave to institute contempt proceedings. The court held that res judicata is properly raised as a preliminary objection, and that all the conjunctive elements under Section 7 of the Civil Procedure Act were met: the parties, title, grounds, supporting affidavit and relief were identical, the earlier motion having been heard and determined by a competent court. The court characterized the re-filing as a carbon copy amounting to abuse of court process, relying on Muchanga Investments and Edna Cherono Bore, struck out both motions and awarded costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a plea of res judicata meets the threshold of a preliminary objection
  2. 2.Whether the petitioners' applications dated 5th February 2025 and 9th April 2025 are res judicata the application dated 15th September 2023
  3. 3.Whether the applications amount to an abuse of court process

Key legal issues

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01

Whether res judicata can be raised as a preliminary objection

Holding

Yes. The court adopted the Court of Appeal's position in the Maina Kiai case that res judicata is a matter properly addressed in limine as it has jurisdictional consequences.

Reasoning

The court relied on the Maina Kiai decision, holding that res judicata constitutes a statutory peremptory preclusion of a certain category of suits under Section 7 of the Civil Procedure Act, and therefore possesses jurisdictional consequences capable of disposing of a suit before hearing, satisfying the Mukisa Biscuit threshold of a pure point of law.

p. 5
02

Whether the instant applications were res judicata the application dated 15th September 2023

Holding

Yes. All the conjunctive elements of res judicata were met: same parties, same title, substantially identical issues, heard and finally determined by a competent court in the ruling of 6th June 2024.

Reasoning

The court found the orders sought in the 2025 motions identical to those in the 2023 motion save for the fine amount; the grounds, supporting affidavit and even signature page (with a hand-changed date) were the same. The earlier motion alleged contempt of the same orders, was heard and dismissed on 6th June 2024, and was not reviewed or appealed.

p. 6
03

Whether the applications were an abuse of court process

Holding

Yes. Re-filing a carbon copy of a dismissed application with insignificant modifications amounted to abuse of judicial process.

Reasoning

The court cited Muchanga Investments and Edna Cherono Bore on abuse of process through duplication of proceedings, which wastes court time, risks inconsistent findings and oppresses the opposite party. The petitioners' replication of the former application with minor modifications was a vexed attempt at a second bite at the cherry.

p. 7

Legal principles established

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  • Res judicata is properly addressed as a preliminary objection because it has jurisdictional consequences as a statutory peremptory preclusion of suits.
  • The elements of res judicata are conjunctive and must all be satisfied for the bar to be upheld.
  • Re-filing a carbon copy of an application already heard and determined amounts to abuse of court process.

Court orders

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  1. 1.The Notice of Motions dated 5th February 2025 and 9th April 2025 are struck out with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction over contempt proceedings in a petition; motions expressed under Section 5(1) of the Judicature Act, Order 40 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 3 and 3A of the Civil Procedure Act

Relief refused

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Orders of committal against the named Nyamira County Government officers and/or fines of Kshs. 500,000 each

The motions were res judicata and an abuse of court process, having replicated an earlier application heard and determined on 6th June 2024

p. 7

Costs

The notices of motion were struck out with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, the Notice of Motions dated 5th February 2025 and 9th April 2025 respectively, are struck out with costs to the respondents.
p. 7Final orders
In the Court's view, all the requirements of the rule or doctrine of res judicata have been met.
p. 6Res judicata elements satisfied
Evidently, the instant applications are a carbon copy of the earlier application with a few insignificant modifications to make them appear dissimilar.
p. 6Abuse of process
The foregoing sentiments of the Court of Appeal leave no doubt in this court's mind that the rule or principle of res judicata meets the threshold of a preliminary objection as articulated in judicial decisions.
p. 5Preliminary objection

Issues in the judgment

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minor

The judgment inconsistently dates the application being compared: at one point the earlier motion is dated 15th September 2023 and elsewhere 15th September 2025.

minor

The judgment refers to contempt of orders issued on 7th February 2023 whereas the consent was recorded on 7th February 2022.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyariki & 3 others v County Government of Nyamira & 2 others (Petition E055 of 2021) [2025] KEELRC 1829 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1829/eng@2025-06-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.