1.This is the first appeal of Zipporah Mwangi & 32 others (the appellants) against the Ruling of Mbaru J delivered on 8th November 2018 at the Employment & Labour Relations Court (ELRC) at Nakuru. Baringo County Public Service Board is the respondent.
2.This appeal was born out of an application dated 9th April 2018 that the appellants filed in the ELRC, for orders of mandamus to compel the respondent to pay the appellants Kenya Shillings Two Million, Five Hundred and Ninety-Two Thousand, Nine Hundred and Seventy (Kshs. 2, 592,970) through M/S Julius Juma & Co. Advocates.
3.The application was supported by an affidavit of even date sworn by Zipporah Mwangi. The application was premised on the grounds that the appellants filed Petition No. 10 of 2015 seeking to be employed by the respondent on permanent and pensionable basis with effect from 1st July 2015. Consequently, the Court granted their prayers and ordered the respondent to pay costs. It was averred that the Deputy Registrar assessed the costs at Kshs. 2,592,970 and issued a Certificate of Costs confirming the assessment of costs and a Certificate of order dated 20th October 2016 against the government as required under section 21 of the Government Proceedings Act. The respondent acknowledged receipt of both documents, but it did not comply with the court order.
4.In response, Mr Mark Suge the chairperson of the respondent filed a replying affidavit sworn on 21st May 2018 on its behalf, deposing that the persons on whose behalf the application was filed had not authorized the filing thereof in writing. Further, that the application was res judicata and bad in law in view of the existence of a decree in Nakuru JR No. 4 of 2017 in which the prayers sought herein were declined. The said decree had not been challenged or appealed by the ex parte applicants. It was also averred that the said application contravened section 103 of the Public Finance Management Act No. 18 of 2012 which vests statutory power of payments on other statutory bodies and not the respondent herein.
5.Upon considering the facts before her, the learned judge found that the application was res judicata and dismissed it with costs.
6.Dissatisfied and aggrieved by the above decision the appellants filed the present appeal. They allege that the learned trial judge erred in fact and in law on the following grounds:
7.The matter was disposed of by way of written submissions. The firm of M/S Julius Juma & Co. Advocates filed written submissions dated 11th February 2023 on behalf of the appellants. They submitted that the bar to filing subsequent suits where a similar suit has been determined previously between the same parties only applies to civil actions. That Judicial Review proceedings are neither civil nor criminal and accordingly, doctrines that are founded in civil law cannot apply. To buttress this position, they relied on the case of Republic v City Council of Nairobi & 2 Others (2014) eKLR, where Odunga J (as he then was), cited this Court’s decision in Commissioner of Lands v Kunste Hotels Ltd (1995 - 1998) 1 EA 1. That therefore, the respondent cannot invoke the doctrine of res judicata.
8.The appellants contended that this suit was not res judicata, citing the five conditions that must be satisfied to raise the defence of res judicata as was stated in the case of Lotta v Tanaki (2003) 2 EA 556. The admitted facts were that the issue in contention in the previous application as well as the one appealed from was the payment of taxed costs; that the parties were the same; that the parties were litigating under the same title and that the former court had jurisdiction. However, an element that was not satisfied was that the issue was not heard or finally determined in the former suit.
9.In opposition, the firm of M/S Limo R.K & Company filed written submissions dated 6th March 2023 on behalf of the respondent. They relied on this Court’s decision in Eldoret Civil Appeal No. 376 of 2014; Africa Oil Turkana Limited (previously known as Turkana Drilling Consortium Ltd) & 3 Others v Permanent Secretary, Ministry of Energy & 17 Others (2016) eKLR to urge that the doctrine of res judicata is a principle of general application and applies to Judicial Review.
10.They also urged that this matter was heard and determined, and judgment delivered on 8th of December 2017 where the said prayer was declined. They asserted that the court conclusively determined the competence of the prayer for mandamus compelling payment of costs without joinder of the relevant accounting officer, and correctly held that the said prayer was unsustainable and incompetent for want of joinder of the accounting officer who is the proper party by law to pay.
11.Counsel urged that the respondent is not a proper party in these proceedings since it is not an accounting officer within the meaning of section 21 (3) of the Government Proceedings Act as read with section 103 (2) (a) and (3) and section 148 (2) and (3) of the Public Finance Management Act, No.8 of 2012. As such, the order of mandamus cannot be issued against the respondent.
12.We have considered the record of appeal, the submissions of the parties and the law. This being a first appeal, our duty is as stated in this Court in Abok James Odera T/A A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates  eKLR, that: -
13.We begin by stating that indeed, res judicata is a doctrine of general application and is therefore applicable to Judicial Review. In this regard the Court stated in the case of Africa Oil Turkana Limited (previously known as Turkana Drilling Consortium Ltd) & 3 others v Permanent Secretary, Ministry of Energy & 17 others  eKLR relied on by the respondent thus:
14.Having stated that, the issue that remains for our consideration is whether the application subject of this appeal is res judicata. Section 7 of the Civil Procedure Act, Cap. 21 of the Laws of Kenya provides that: -
15.Also, this Court in The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others  eKLR), had the following to say regarding what constitutes res judicata:
16.According to the judgment dated 8th of December 2017, the ex parte applicants filed a Judicial Review application dated 31st of March 2017 seeking orders for:
17.The learned judge allowed prayers (i) and (ii) and in disallowing prayer (iii) he held as follows:
18.Having considered the record, we note that the learned judge’s dismissal of the prayers seeking to compel the respondent to pay costs, was on the grounds that the application was brought prematurely. We find that the suit was not determined on merit and hence, it is not res judicata. Ultimately, the appeal is allowed with orders that:i.The matter be and is hereby referred back to the Superior Court to be determined on merit, before any other judge of the ELRC, other than lady justice M. Mbaru.ii.Costs shall abide the outcome of the trial.It is so ordered.