Bosire & 4 others v Nyaribo & 8 others [2023] KEELRC 99 (KLR)

Bosire & 4 others v Nyaribo & 8 others (Petition 010 of 2022) [2023] KEELRC 99 (KLR) (25 January 2023) (Ruling)

Neutral citation: [2023] KEELRC 99 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Petition 010 of 2022

S Radido, J

January 25, 2023

IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS PURSUANT TO ARTICLES 2, 3, 6, 10, 19, 20, 21, 22, 2, 47, 48, 159, 162, 179(7), 182(2) & (3) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTIONS 30(d) AND 35(3) OF THE COUNTY GOVERNMENTS ACT

Between

Douglas Oseko Bosire

1st Petitioner

John Moenga Omanwa

2nd Petitioner

John Moenga Omanwa

3rd Petitioner

Peter Muga Omwanza

4th Petitioner

Zablon Oero Onchiri

5th Petitioner

and

H.E. Amos Kimwomi Nyaribo Governor, Nyamira County

1st Respondent

County Government of Nyamira

2nd Respondent

County Assembly of Nyamira

3rd Respondent

Hon Attorney General

4th Respondent

Gladys Momanyi

5th Respondent

M.S. Emily Moraa Ongaga

6th Respondent

Thomas Nyariki

7th Respondent

Jones Omwenga

8th Respondent

Samuel Maiko

9th Respondent

Ruling

1. The petitioners were appointed as County Executive Committee members, Nyamira. The appointing Governor, however, died before the end of his term of office. The then Deputy Governor (the 1st respondent) herein assumed office and appointed new County Executive Committee members.

2. The petitioners sued (Kericho) to quash the appointments and to be allowed to continue in office.

3. The court in kericho dealt with various applications before transferring the petition to this court.

4. On 23 November 2022, the respondents filed a motion seeking orders:(1)That this honourable court be pleased to dismiss the petitioners’ claim/petition as it discloses no reasonable cause of action.(2)That the costs of this suit and application be borne by the petitioner.

5. The grounds in support of the motion were that the court in Kericho had, in a ruling delivered on 21 September 2021, held that the petitioner’s employment was tied to the tenure of the appointing governor, and consequently, there was no contractual relationship with the 1st respondent who took office upon the demise of the appointing Governor.

6. The court gave directions on the application on 24 November 2022. None of the parties complied with the directions within the set timelines.

7. The court has looked at the record, motion and affidavit in support.

8. The respondents lodged an application dated 21 April 2021 seeking similar orders to the ones now under examination.

9. The court sitting in Kericho heard arguments on the application and dismissed it in a ruling on the merits delivered on 21 September 2021.

10. This court, therefore, declines the respondents’ invitation to revisit the issue. The application is not only an abuse of the court process but res judicata.

11. The motion is dismissed with costs to be paid personally by the respondents’ advocate on record.

DELIVERED VIRTUALLY, DATED, AND SIGNED IN KISUMU ON THIS 25TH DAY OF JANUARY 2023. RADIDO STEPHEN, MCIARBJUDGEAppearancesFor Petitioner Wamuyu Munga & Associates AdvocateFor Respondents Ligunya Sande & AssociatesCourt Assistant Chrispo Aura