Awino v Kandie; Kenya Rural Roads Authority & 6 others (Interested Parties) (Petition E070 of 2025) [2025] KEELRC 2123 (KLR)
The bottom line
#Kenya's Employment Court dismissed a petition challenging a KeRRA director's appointment because the same issue was already decided and is on appeal.
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 seeking to invalidate the appointment of Philemon Kiprop Kandie as Director General of KeRRA per Gazette Notice No. 4309 of 2022 is barred by res judicata given the judgment in Judicial Review Application No. E013 of 2022
- 2.Whether the petition is barred by the doctrine of sub-judice given the pending appeal in Civil Appeal (Application) No. 238 of 2023
- 3.Whether the petitioner exhausted the prescribed primary procedures, including petitioning Parliament under Article 119 and the Petition to Parliament (Procedure) Act
- 4.Whether the threshold for compelling orders in the nature of mandamus against the interested parties was established
Key legal issues
#Res judicata and privity
The petition insofar as it sought to invalidate the same gazette notice quashed in Judicial Review Application No. E013 of 2022 was res judicata and an abuse of process; the petitioner was in privity with the earlier parties
The petitioner pleaded full knowledge of the earlier judgment quashing Gazette Notice No. 4309 of 2022. Though the parties were not identical, the court found privity by the petitioner's pleading and knowledge, applying the three elements of res judicata from Black's Law Dictionary 10th Edition. Relitigating settled matters abuses court process.
Sub-judice
The propriety of the gazette notice is pending before the Court of Appeal in Civil Appeal (Application) No. 238 of 2023, trapping the petition's core claims
The respondent and 1st interested party showed the earlier judicial review judgment is under appeal, particularly on whether the appointment was unconstitutional and unlawful. The court held it could not entertain a parallel suit on the same gazette notice while the appeal is pending.
Exhaustion of prescribed procedures
The petitioner did not first petition Parliament as required by Article 119 and the Petition to Parliament (Procedure) Act before seeking orders against parliamentary organs
The 6th interested party demonstrated that the constitutionally prescribed avenue for obtaining reports or information from Parliament and its committees is petitioning the National Assembly under Article 119, the Petition to Parliament (Procedure) Act and Standing Orders 219-229. The petitioner neither engaged that process nor rebutted the submission.
Mandamus threshold
The petitioner failed to establish the prerequisites for compelling orders against the interested parties
Mandamus requires demonstration that the body owes a clear public duty, that demand has been made, and that the body has neglected or refused to act. The petitioner showed no such duty or demand against the 1st, 2nd, 7th and 8th interested parties, including the EACC, whose investigations should be allowed reasonable time without premature judicial intervention.
Primary disciplinary and criminal remedies
Alleged misconduct by a public officer should first be addressed through disciplinary processes under the Public Officer Ethics Act, 2003 or criminal proceedings, not a constitutional petition
The petitioner relied on Auditor-General audit findings but did not show they led to criminal charges, disciplinary proceedings or adverse action. The court held that the primary jurisdiction over alleged misconduct lies in the prescribed disciplinary and criminal procedures, which the petitioner bypassed.
Legal principles established
#- A litigant aware that relief sought has already been granted in earlier proceedings abuses court process by seeking it again; privity may found res judicata even where the parties are not identical
- Where a matter on a gazette notice is pending before the Court of Appeal, a fresh petition on its propriety is trapped by the doctrine of sub-judice
- Courts will not grant mandamus against public bodies without proof of a duty owed, demand, and neglect to act
Court orders
#- 1.The petition is dismissed
- 2.No orders on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya, 2010 - petition under Articles 10, 27, 73, 75, 47 and 232
Relief refused
#Declaration that the respondent's appointment as Director General KeRRA per Gazette Notice No. 4309 of 2022 was unconstitutional, unlawful, null and void
The same relief was already granted in earlier judicial review proceedings; the petitioner was in privity with those parties and the matter is also pending before the Court of Appeal
Compelling orders in the nature of mandamus against the 1st, 2nd, 7th and 8th interested parties
The petitioner failed to demonstrate that the interested parties owed a duty to act and that despite demand they neglected to act
Orders against the 6th interested party (Parliament/PAC) to submit reports on KeRRA funds
Petitioner failed to exhaust the prescribed procedure of petitioning Parliament under Article 119 and the Petition to Parliament (Procedure) Act
Costs
No orders on costs - each party to bear 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.
It should be obvious that it is an abuse of Court process for the petitioner to seek the same relief which the Court already granted in the earlier judicial review proceedings
the instant petition in relation to the propriety of the gazettee notice is trapped by the doctrine of sub-judice as it is a matter properly seized and pending before the Court of Appeal
The petition is therefore trapped by the doctrine of want of exhaustion of the primary prescribed procedure
the Court finds that the petitioner has failed to establish the threshold for grant of the compelling orders as prayed for
In conclusion the petition is hereby dismissed with no orders on costs.
Issues in the judgment
#The respondent is recorded as filing the same Notice of Preliminary Objection twice with different grounds, and the petition variously describes the appointment as Managing Director and Director General; the judgment also mislabels the interested party numbering (referring to '6th respondent' then '6th interested party')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Awino v Kandie; Kenya Rural Roads Authority & 6 others (Interested Parties) (Petition E070 of 2025) [2025] KEELRC 2123 (KLR)", Case Analysis (2025). Petition dated 15.04.2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2123/eng@2025-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.