https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2413

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E136 OF 2026** **CHRISTINE OSIO AGUTU PETITIONER** *VERSUS* **HON. JEREMIAH OMBOKO MILEMBA 1ST RESPONDENT** **KENYA UNION OF POST PRIMARY** **EDUCATION TEACHERS (KUPPET) 2ND RESPONDENT** **REGISTRAR OF TRADE UNIONS 3RD RESPONDENT** **COMMISSIONER OF LABOUR 4TH RESPONDENT** **RULING** On 30 April 2026, the petitioner filed the petition herein together with a Notice of Motion dated 25 April 2026. In reply, the 1st and 2nd respondents filed Notice of Preliminary Objections challenging the petition on the grounds: 1. *The entire petition is sub judice in NAROBI/ELRCPET/E225/2026, of which the substratum is a conflict of interest of the 1st respondent.* 2. *The court lacks jurisdiction to entertain the suit.* On these objections, the 1st and 2nd respondents submitted that the petition is *sub judice* contrary to section 6 of the Civil Procedure Act. The petition revolves around the alleged conflict of interest arising from the 1st respondent's election as the national chairperson of the 2nd respondent while serving as a Member of Parliament for Emuhaya Constituency. This same question is before the court in **Nairobi ELRC Petition E225 of 2026 – Eros Wambui Wanjiku & others v Hon. Omboko Milemba and KUPPET.** Under the *sub judice* rule defined in **Kenya National Commission on Human Rights v Attorney General & 16 others (interested parties),** the court held that, to prevent multiplicity of suits, avert conflicting decisions, and protect the integrity of the judicial process, the rule should be applied. The court is thus without jurisdiction where the *sub judice* rule applies: 1. *There must exist more than one suit over the same subject matter.* 2. *The matter in issue in the subsequent suit must be directly and substantially in issue in the earlier suit.* 3. *The suits must be between the same parties or parties litigating under the same title. And* 4. *The earlier suit must be pending before a court of competent jurisdiction.* The respondent submitted that the substratum of the petition is before Nairobi Petition E253 of 2025. The question before this court is whether the 1st respondent can lawfully hold the office of national chairperson of KUPPET while simultaneously serving as a Member of Parliament. Similarly, in Nairobi Petition E225 of 2026, the court addressed a similar question. It held that the dispute is *sub judice* in ELRC Cause No. 252 of 2025 and consequently stayed the proceedings pending determination of the earlier suit. Hence, Cause E253 of 2025 remains alive pending determination of the matters under section 6 of the Civil Procedure Act. The petitioner cannot circumvent the doctrine of *sub judice* merely by presenting a different litigant or by recasting the pleadings under a petition. Section 6 of the Civil Procedure Act applies based on the pleadings. In **Muturi v Sifuna Civil Case E008B of 2023 [2024] KEHC**, the court held that it can properly take judicial notice of or review the records of another ongoing case by utilising its inherent powers and examining official court files to verify parallel proceedings. Thus, in **Kenya National Commission on Human Rights v Attorney General & 16 others (interested parties), t**he court held that the doctrine of sub judice serves a public interest by safeguarding judicial economy, preventing abuse of the court process, and ensuring the orderly administration of justice. The objections should be allowed, and the proceedings be stayed or struck out with costs. On the objections, the petitioner submitted that there is a conflict of interest for the 1st respondent as a Member of Parliament and the chairperson of KUPPET. The Respondents have not attached the substantive applications in the two applications **Nairobi ELRC Petition No.E225 of 2025**, Eros Wambui Wanjiku, Karira Kimara, Alfred Kiptala Cherop and Masika Nekesa Marrian v Hon Omboko Milemba and Kuppet and **Nairobi ELRC Cause No.253 of 2025**, Yvonne Mutindi Musyoki and William Lengoyiap v Hon Omboko Milemba and Kuppet) for the court to satisfy itself that the three applications are identical. The Respondents have not satisfied the requirements of the *sub judice* rule. The petition relates to a challenge of a trade union election based Labour Relations Act (LRA) section 34(4) and the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025 with strict 21 days filing deadline and must be determined within 180 days unlike the ordinary petitions and Causes in **Nairobi ELRC Petition No. E225 of 2025** and **Nairobi ELRC Cause No. 253 of 2025** and therefore cannot be delayed. The Petitioner is challenging the National elections of KUPPET held on 18 April 2026. The other petitions were filed in 2025, before the KUPPET elections, and are unrelated to the KUPPET National elections of 18 April 2026, which the Petitioner is challenging. The parties are not identical. The decision in Nairobi ELRC Petition No. E225 of 2025 was to stay the proceedings because of Nairobi ELRC Cause No. **253 of 2025**, which is not binding on this court under the doctrine of horizontal precedent. Article 22(3)(d) provides that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. The National Constitution reinforces the same, Article 159(2)(d), and therefore technicalities should not be entertained in this Preliminary Objection. The Preliminary Objection be dismissed with costs to the Petitioner. **Determination** The 1st and 2nd respondents in their written submission concluded that the petition should be stayed or struck out. Under section 6 of the Civil Procedure Act, to apply, a suit must either be the same or substantially similar to a matter already before the Court. The purpose of the *sub judice* rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter as held in **Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR).** In **Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others Civil Application No. 36 of 2014**, the court observed that the overriding objective of the *sub judice* rule is to address against profligate deployment of time and other resources. It serves the public cause of sparing scarce judicial time so that it may be committed only to deserving cases of dispute settlement. The 1st and 2nd respondents' case is that there exists Nairobi ELRC Petition E225 of 2026 – Eros Wambui Wnjiku & others v Hon. Omboko Milemba and KUPPET and also Nairobi Cause No. E253 of 2025 Yvonne Mutindi Musyoki and William Legoyiap v Hon. Omboko Milemba and KUPPET. The question in issue in the other suits is that of alleged conflict of interest arising from the election of the 1st respondent as the national chairperson of KUPPET while serving as a Member of Parliament for Emuhaya Constituency. Indeed, as submitted by the respondents, the court may take judicial notice of, or review, the records of another ongoing case by utilising its inherent powers and examining official court files to verify parallel proceedings. In **Nairobi ELRC Petition E225 of 2025**, the petition is premised on the fact that the 1st Respondent is currently serving a term as a member of the National Assembly for Emuhaya Constituency, in addition to being the Deputy Secretary General of United Democratic Alliance Party, a duly registered political party in Kenya. Further, the 1st Respondent is also the current National Chairperson of the 2nd Respondent/ KUPPET. In the petition, the petitioners challenge the application of the Conflict of Interest Act No. 11 of 2025 and thus seek the following substantive orders: 1. *A declaration be issued that the 1st Respondent is unconstitutionally and illegally holding the position of National Chairperson of the 2nd Respondent.* 2. *A declaration be issued that the 1st Respondent is unlawfully holding two full-time engagements.* 3. *The 1st Respondent be ordered to vacate the office of the National Chairperson of the 2nd Respondent forthwith.* 4. *The 2nd Respondent be ordered to organise and conduct elections for the position of National Chairperson and Secretary General with immediate effect.* On 13 April 2026, the court delivered a ruling following a challenge on the application of the *sub judice* rule and held that indeed, the petition is *sub judice,* **ELRCC No. E253 of 2025** and ought to be stayed in accordance with the provisions of section 6 of the Civil Procedure Act. The conclusion being: ***… ELRC Petition No. E225 of 2025 herein is stayed pending the hearing and determination of ELRCC No. 253 of 2025.*** The court recognised that the latter suit had progressed and was coming for pre-trial directions, while the earlier suit had not progressed. In thus addressing the application of section 6 of the Civil Procedure Act in Nairobi Petition E225 of 2025, the court recognised that Nairobi Petition E253 of 2025, Yvonne Mutindi Musyoki and William v KUPPET & Hon. Omboko Mitemba, was pending determination. Touching on similar questions, including alleged conflict of interest by the 1st respondent in holding a parliamentary position, a political party position and being the chairperson of the 2nd respondent trade union. Hence, in this petition, altogether premised on the elections of the 2nd respondent held on 18 April 2026, which gave rise to new union officials for KUPPET, and the elections of the 1st respondent as the national chairperson, the same issues of alleged conflict of interest arise. The principles of the *sub judice rule addressed above, the petitioner’s case premised on the elections of the 2nd respondent held on 18 April 2026, and* the results thereof, it will be necessary to hear the petition on the merits. However, in adherence to the principles set out above and to avoid conflicting findings by the court, as addressed in ELRC Petition E225 of 2026, the submissions by the 1st and 2nd respondents that these proceedings be stayed are hereby found appropriate and reasonable to apply. Accordingly, this petition is stayed pending the hearing and determination of **ELRCC No. 253 of 2025. Both files shall be appraised to allow monitoring of progress herein and therefrom. Mention on 1 October 2026.** **Delivered in open court this 17th day of August 2026** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistant: Kemboi ……………………………………………… and …………………………………..………