https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2416

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELRC CAUSE NO. E176 OF 2025 JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION AMOS NEHEMIAH AMWAYI AND 64 EX EMPLOYEES OF ROLMIL KENYA LIMITED…………………………………………………PETITIONERS VERSUS KENYA ENGINEERING WORKERS UNION……………………………………………..……...RESPONDENT AND ROLMIL KENYA LIMITED ………………………………………………………………..…….INTERESTED PARTY CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. The petitioners, post the judgment of the court in NAIROBI ELRC No. 41 of 2006 awarded in their favour as members of the respondent, and the claimant in the said case, filed a petition dated 15th September 2025 against the respondent and sought the following relief- a. A declaration be and is hereby issued that the respondent (trade union) breached its fair representation of the petitioners (its members) duly pursue the decretal claims of the total sum of Kshs. 363,065,128 by the ruling of the court dated 14th October 2019 in Misc. App. NO. 41of 2006 before the Honorable Lady Justice Hellen Wasilwa. b. A declaration be and is hereby ordered to duly compensate the petitioners for the financial losses suffered due to the delayed benefits claims, such amount to be determined by this honorable court. c. The Respondent be and in hereby ordered in the alternative to duly pay petitioners their decretal sum in full together with interests individually and should be disbursed forthwith in a transparent manner. d. The Respondent be and is hereby ordered to pay damages per the breach of the duty of fair representation to each petitioner, such amount to be determined by this honorable court. e. Costs be provided for. f. Such other orders as this Honourable court shall deem just. 1. The petitioners accused their union, the respondent, of breaching the duty to fairly represent them as members as follows- 2. Failing to take adequate steps to enforce the judgment in Misc. Application No. 41 of 2006. 3. Entering into settlements or agreements with the Interested Party without proper consultation with or involvement of the Petitioners. 4. Failing to pursue alternative enforcement mechanisms when the Interested Party claimed inability to pay. 5. Abandoning the Petitioners' legitimate claims without justification. 6. The Respondent's inaction has caused the Petitioners to suffer:- 7. Continued financial hardship due to non-payment of their lawful entitlements. 8. Loss of interest on their decretal sum. 9. Diminution in the value of their claims due to inflation and time delay iv. Emotional distress and anxiety 10. The respondent opposed the petition vide replying affidavit sworn by WYCLIFFEE AMАКОМВO NYAMWATA, the General Secretary who stated as follows:- 11. THAT, the Petition is res-judicata in nature as the Petitioners herein filed an Application in ELRC Cause Number E41 of 2006 for joinder on the same grounds which was dismissed then filed an application being ELRCMISC No. E. 049 of 2025 on similar grounds which was again struck out. 12. THAT, the Petition offends Rule 63 of the Employment and Labour Relations Court (Procedure) Rules, 2024 as the Petitioners were not the Respondent's members, the position they have sworn Affidavit to confirm the same. Here attached and marked Appendix WAN 1 are copies of the Affidavits to that effect. 13. THAT, the various suits being filed by the Petitioners who are not members to the Respondent are meant to distract the efforts of the Respondent to serve her members. 14. THAT, the Claimant has filed various applications on behalf of her members so as to get justice and the last one is dated 22nd day of September, 2025. Here attached and marked Appendix WAN 2 is a copy of the said application. 15. THAT, the delay for justice to the Respondent's members has been caused by the Interested Party's company closing doors and the Respondent's members not knowing the properties of the Interested party as at one time the Respondent proclaimed properties not belonging to the Interested Party which was stopped by the Honourable Court leaving the Respondent herein to pay the costs of the Application. Here attached and marked Appendix WAN3 is a copy of the Court's Orders to that effect. 16. THAT, imposing the burden of representation of the Petitioners to the Respondent shall be against the Advocates Act Laws of Kenya as trade unions are only mandated to represent their members but the petitioners herein neither paid any union dues or agency fee to the Respondent herein in line with sections 48 & 49 of the Labour Relations Act, 2007 to warrant the representation. 17. THAT, the Petitioners have gone ahead in their own affidavits confirming that they were not part of the CBA negotiated by the Respondent and that they had to claim their dues separately hence this petition is an afterthought. 18. THAT, it shall only be fair, reasonable and just that this petition be dismissed with costs to the Respondent so as to avoid wastage of Court's time and duplication of suits. 19. The interested party entered appearance and filed a response and grounds of objection dated 1st December 2025 against the petition dated 15th September 2025 as follows- 20. The Honourable Court is functus Officio. 21. This Honourable Court is functus officio, on the substance of the Petition as drawn and filed having delivered judgment with finality in Nairobi ELRC No. 41 of 2006 on 2008. The Court cannot deliver another judgment over the same subject matter as sought in the Petition. The Court cannot enforce the judgment in Nairobi ELRC No. 41 of 2006, through another suit, as sought in the Petition. Accordingly, the Honourable Court has no jurisdiction to hear and determine the Petition as drawn and filed. 22. The Petition as drawn and filed is wholly an abuse of Court process. Decision 1. The court finds that the essence of the preliminary objection is that the instant petition is res judicata; thus the court is functus officio. Whether the petition is res judicata Submissions by the interested party 1. The Interested Party maintains its position that this Petition is fundamentally misconceived, an abuse of court process, and should be struck out with costs. The Petitioners' attempt to repackage a previously dismissed application in the main suit as a constitutional Petition does not cure the fatal procedural and substantive defects that have already been identified by this Court. Before addressing the merits, it is important to establish that the Interested Party's Objection dated 1st December 2025 is properly before this Court. The locus classicus on the threshold for a Preliminary Objection is Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Law JA held: "A Preliminary Objection consists of a pure point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer dispute to arbitration." Sir Charles Newbold added: "A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." 2. The Interested Party's Objection raises pure points of law: - a. Whether this Court is functus officio. b. Whether the doctrine of res judicata applies. C. Whether the Petition constitutes an abuse of court process 1. These are issues that can be determined on the pleadings alone without the need for evidence, and if successful, they will dispose of the entire suit. Therefore, the Interested Party's Objection meets the threshold for preliminary objections as established in the Mukisa Biscuits (supra) case. 2. The petition fails tо меet the Anarita Karimi Njeru specificity threshold - It is trite that a party invoking the constitutional jurisdiction of this Court must set out with reasonable precision that of which he complains, the provisions of the Constitution said to be infringed, and the manner in which they are alleged to have been infringed. This is the settled principle in Anarita Karimi Njeru v Republic [1979] eKLR, which remains good law and has been consistently applied and affirmed by the superior courts to this day. The Court in Anarita Karimi Njeru (supra) held that: "...if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed." This principle was reaffirmed by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance &5 others [2013] eKLR, where the Court clarified that the precision required is not mathematical exactitude, but must be sufficient to define the real dispute between the parties and to enable the other party to respond appropriately, thereby saving on judicial time and resources. 11. The Petition herein falls short of this threshold. It does not set out with the requisite precision which specific provisions of the Constitution or the Bill of Rights are said to have been violated, nor the manner in which the alleged violations occurred, including in relation to the alleged breach of the duty of fair representation addressed further below. A Petition drawn in such general and unparticularized terms leaves the Interested Party, and indeed this Court, to speculate as to the real dispute for determination. For this additional and independent reason, the Petition is incompetent and ought to be struck out. 3. The petition is an abuse of court process; the petitioners have already been heard - The Petitioners contend that they were never parties to ELRC Cause No. 41 of 2006 and that this Court directed them to file fresh proceedings. The Interested Party submits that this argument is disingenuous and misleading. It is a matter of record that the Petitioners (then numbering 286 ex-employees) filed an application dated 28th September 2023 seeking to be enjoined as interested parties in ELRC Cause No. 41 of 2006. That application was heard and determined by this Court (Ongaya, J.) on 7th March 2024, cited as Kenya Engineering Workers Union v Rolmil Kenya Limited; Directors - Diamond Hasham Lalji - (Director Rolmil (K) Ltd & another (Intended Interested Party) (Cause 41 of 2006) [2024] KEELRC 510 (KLR). In its Ruling, the Court made several findings that are directly relevant to the present Petition: "The Court returns that the application was incompetent to the extent that the rule was not complied with and there is a real danger, if the orders sought are granted, as it would be with respect to undisclosed alleged applicants and unknown extent of the benefit sought by each." Critically, the Court also held that: "The applicants have not shown a proceeding before the Court to which they seek to be enjoined. The award is elaborate that the union filed the suit for the benefit of its members. The applicants may therefore be valid beneficiaries of the award. However, as submitted for the claimant union, joinder of an interested party may be allowed where there are pending or on-going proceeding. The interested parties have not raised any issue before the Court in a pending or on-going proceeding for which they seek to assist the Court to determine one way or the other." The Court further found that: E. "The record shows that proceedings for the satisfaction of the decree proceeded, the directors of the employer were summoned, and, the Court ordered that should they fail to pay the decretal sum the claimant union will be at liberty to apply for the committal of the directors to civil jail for failure to comply with Court order." The Petitioners' application was dismissed. They cannot now, having been refused joinder, file a separate Petition raising substantially the same grievances. This is the very essence of an abuse of court process. Therefore, it is the Interested Party's submission that the Petitioners cannot use this suit to enforce the judgement in the main suit - ELRC Cause No. 41 of 2006, which is already heard and determined. In any event, and independently of the doctrine of res judicata addressed further below, it is well established in Kenyan jurisprudence that instituting a multiplicity of actions on the same subject matter against the same opponent even where a party may nominally possess a right to bring an action - constitutes an abuse of the process of the court. The abuse lies not in the existence of the right but in the manner and multiplicity of its exercise. Having already sought, and been refused, the very relief now repackaged as a constitutional Petition, the Petitioners' recourse to this fresh suit is a further instance of that abuse, quite apart from whether the earlier dismissal meets the strict finality threshold for res judicata. 4. The alleged court directive does not validate the petition - The Petitioners heavily rely on the alleged directive of this Court in ELRC MISC No. E049 of 2025, claiming that the Court directed them to file fresh proceedings. The Interested Party submits that this reliance is misplaced. The ruling in ELRC MISC No. E049 of 2025 is cited as Amos Nehemiah Amwayi & 64 Ex Employees of Rolmil Kenya Limited v Kenya Engineering Workers Union; Rolmil (Interested Party) [2025] KEELRC 1734 (KLR), and addressed the procedural impropriety of seeking substantive orders in a miscellaneous application. The Court's direction to file proceedings "in the proper manner" cannot be interpreted as a validation of the substance of the Petitioners' claim. Furthermore, in Amos Nehemiah Amwayi & 64 Ex Employees of Rolmil Kenya Limited v Kenya Engineering Workers Union; Rolmil [Interested Party] (supra), the Court struck out the Petitioners' application for seeking substantive and final orders in a miscellaneous application. It held that: "In the cases of Rockland Kenya Ltd v Commissioner General of KRA & another (2020) eKLR and Nairobi West Hospital Limited v Joseph Kariha & Another [2018] eKLR, it was held that substantive orders cannot be issued in miscellaneous F. applications...In the case herein, the nature of the orders sought by the Applicants are substantive and final in nature. Therefore, it follows that a resolution of the issues raised will require the taking of evidence. This will not be possible in a miscellaneous application, as parties will be denied an opportunity to be heard." The Court expressly suggested that the Petitioners ought to move the Court in the proper manner, but this directive was purely procedural and did not validate the substance of their claim. Therefore, the Petitioners cannot use a procedural directive as a shield against the substantive defects of their Petition. The Interested Party is entitled to challenge the Petition on its merits, including on the grounds of res judicata and abuse of process, regardless of the form in which the Petitioners have chosen to clothe their claim. 5. The doctrine of functus officio and res judicata remain applicable - The Petitioners argue that the doctrine of functus officio does not apply because this is a fresh cause of action. The Interested Party disagrees. The judgment in ELRC Cause No. 41 of 2006 was delivered on 9th August 2008. Since then, there have been multiple rulings on execution, including the ruling of 5th October 2022 where the Court ordered the directors of the Interested Party to appear in person to explain how they intend to pay the decretal sum. The Court in Oyatsi v Nzoia Sugar Company Limited (Cause 361(N) of 2009) [2025] KEELRC 3347 held: "...There is no doubt in my mind that once this court delivered its judgment and the matter proceeded on appeal, this Court became functus officio, save for matters relating to execution strictly arising from its own judgment..." The Court further held: "...This Court cannot, in my view, stay or suspend execution of a Court of Appeal judgment or proceedings relating thereto, as only the Court of Appeal can stay itself. For the reasons foregone, I find and hold that this Court lacks jurisdiction to stay proceedings relating to an appellate decree..." The present Petition seeks to reopen issues that have already been determined. The Petitioners are beneficiaries of the award in Cause No. 41 of 2006 and the Respondent Union filed the suit for the benefit of its members. The Interested Party submits that the Petitioners' recourse, if any, lies within the framework of ELRC Cause No. 41 of 2006, not through a separate Petition. In Kijusa v Race Guards Limited (Cause 641 of 2016) [2023] KEELRC 1770 (KLR), the Court reiterated the elements of res judicata as set out in Independent Electoral and Boundaries Commission v Kiai & 5 others (Civil Appeal 105 of 2017) [2017] КЕСА 477 (KLR), emphasizing that the doctrine applies where the issue was directly and substantially in issue in a former suit between the same parties or parties under whom they claim. It further stated that: As regards res judicata, Section 7 of the Civil Procedure Act is clear that; "No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue is a former suit between the samе parties or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Section 2 of the Civil Procedure Act defines a suit to mean "all civil proceedings commenced in any manner prescribed." 6. Clearly, the doctrine of res judicata is only applicable where judicial proceedings have taken place not a complaint made to the Labour Officer. Equally, proceedings before the Labour Officer who acts as a conciliator are not a suit and the outcome is an agreement as opposed to a court decision capable of being appealed against in a higher court. The last requirement of res judicata makes it crystal clear that the court that heard the earlier suit was competent to hear and determine the subsequent suit or the suit in which the issue is raised."" The Petitioners, as beneficiaries of the award, claim under the Union and are therefore caught by the doctrine of res judicata, as held in Independent Electoral and Boundaries Commission v Kiai & 5 others (supra) that: "The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded in equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it – not even by consent of the parties -because it is the court itself that is debarred by a jurisdictional injunct, from entertaining such suit. That much was stated by this Court in Ngugi v. Kinyanjui & 3 Others [1989] KLR 146 when it held (at p147) that; Section 7 was a mandatory bar from (sic) any fresh trial of a concluded issue and a Judge cannot competently get around that bar by obtaining the consent of the parties to an arbitration of a concluded issue." The Interested Party is alive to the fact that the Ruling of 7th March 2024 dismissed the Petitioners' joinder application partly on grounds of noncompliance with procedural rules. This does not, however, dilute the res judicata bar raised here. The Ruling did not stop at procedure: as set out above, the Court went further to make substantive findings - that the Petitioners had not shown any pending proceeding to which they sought to be enjoined, and that their proper recourse lay within the framework of the existing award. Those findings were directly and substantially in issue, were made after full argument on the merits of the joinder application, and go to the very heart of the claims the Petitioners now seek to relitigate in this Petition. In any event, and out of an abundance of caution, the Interested Party relies in the alternative on the doctrine of abuse of court process addressed above, which independently bars the Petition regardless of the precise characterization of the 2024 dismissal. 7. The petitioners have not established a breach of the duty of fair representation - The Petitioners allege that the Respondent Union breached its duty of fair representation by failing to distribute the decretal sum equitably. This allegation is unsupported and contradicted by the record. The record in ELRC Cause No. 41 of 2006 shows that the Respondent Union herein has taken all necessary steps for satisfaction of the decree. The applicants have not shown how the Union would delay satisfaction of the decree or final award. The Court in Seth Panyako v Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers [2013] KEELRC 27 (KLR) held that a trade union owes a duty of fair representation to its members, but this duty is not absolute and must be exercised in accordance with the union's constitution and the law. The Petitioners have not demonstrated any specific act or omission by the Union that would constitute a breach of this duty. In Benson Oyugi Ambuni v Union of Kenya Civil Servants [2019] KEELRC 335 (KLR), the Court held that under the duty of fair representation, a trade union should not act in bad faith and should act fairly and impartially. The Petitioners have not presented any evidence of bad faith, discrimination, or unfairness on the part of the Union. It is trite that a party alleging breach of the duty of fair representation bears the burden of pleading and proving specific acts of bad faith, discrimination, or arbitrary conduct on the part of the union; a bare or general assertion of unfairness, unaccompanied by particulars, does not discharge that burden. The Petitioners' Replying Affidavit and Submissions fall short of this threshold: they do not identify any specific decision, meeting, or distribution process in which the Union is alleged to have acted unfairly, nor do they particularize how the alleged breach caused them any loss distinct from that already addressed within the framework of ELRC Cause No. 41 of 2006. Absent such particulars, the allegation remains speculative and cannot found a cause of action. 8. The interested party has complied with court orders - The Interested Party wishes to reiterate that it has not frustrated the payment process. The directors appeared in Court on 5th October 2022 as ordered, and the Court directed them to appear in person to explain how they intend to pay the decretal sum. The Court noted that should the directors fail to pay the decretal sum, the claimant union would be at liberty to apply for their committal to civil jail. This demonstrates that the Interested Party has been engaging with the Court process in good faith to date in ELRC Cause No. 41 of 2006. The Interested Party is a limited liability company. The lifting of the corporate veil, as contemplated in the ruling of 5th October 2022, is an exceptional remedy reserved for cases of fraud or improper conduct. As stated in Salomon v Salomon & Co Ltd [1897] AC 22, a company has separate legal personality from its directors and shareholders. The courts will only pierce the corporate veil in cases of fraud, improper conduct, or where the company is a mere sham or facade used to conceal wrongdoing. The Court in its ruling of 7th March 2024 in Kenya Engineering Workers Union v Rolmil Kenya Limited [2024] KEELRC 510 (KLR) (supra) did not lift the corporate veil but merely directed the directors to appear in person to explain how they intend to pay the decretal sum. The Petitioners have not established any basis for such exceptional relief against the Interested Party. Submissions by the petitioner 1. The Petitioners submit that all three grounds are misconceived and should be dismissed with costs. The Petition raises a fresh, distinct cause of action arising from post-judgment conduct, specifically, the Respondent Union's failure to fairly represent the Petitioners in the enforcement and equitable distribution of the decretal sum and squarely engages constitutional and statutory rights within this Court's jurisdiction. 2. The court is not functus officio- the doctrine of functus officio precludes a court from revisiting or varying a final judgment on the same cause of action. However, it does not bar the court from entertaining a new and distinct cause of action that arises from post-judgment events. In Nderitu & 55 others v Telkom Kenya Limited & another (Civil Suit 165 of 2006) [2024] KEHC 2297 (KLR) the court stated “the applicants are seeking to enforce the Judgment of this court delivered on 13th July, 2011. It is thus clear that they are not seeking a re-engagement of the Court with its earlier decision. A court does not become functus officio merely because it has delivered a final decision in civil proceedings. The court retains its power to undertake several actions including but not limited to stay, review, execution proceedings and such other acts and steps towards the closure of the file.” The present Petition does not seek to reopen or vary the judgment in ELRC No. 41 of 2006. Rather, it arises from the Respondent Union's breach of its duty of fair representation in the execution and distribution phases, a matter that could only arise after the judgment was delivered. This is a distinct cause of action in law and in fact. To the extent that the Interested Party's Preliminary Objection implicitly relies on the principle of res judicata, the same must equally fail. 3. The Court of Appeal in Independent Electoral and Boundaries Commission & Another v Maina Kiai & 5 Others [2017] eKLR authoritatively set out the five conjunctive elements that must all be satisfied before the bar of res judicata can be raised and upheld: i. The suit or issue was directly and substantially in issue in the former suit; ii. That former suit was between the same parties or parties under whom they or any of them claim; iii. Those parties were litigating under the same title; iv. The issue was heard and finally determined in the former suit; and v. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is subsequently raised. The Court in that case was emphatic that these elements are rendered in conjunctive, not disjunctive terms meaning that failure to satisfy even one element is fatal to a res judicata plea. In the present case, the Petitioners respectfully submit that the issue in the present Petition namely, the Respondent Union's breach of its statutory duty of fair representation in the post-judgment distribution of the decretal sum was never directly or substantially in issue in ELRC No. 41 of 2006. The former suit concerned the underlying employment dispute and entitlement to terminal benefits. The duty of fair representation in execution is an entirely distinct issue that arose only after the judgment was delivered and could not have been litigated in the former proceedings. Submissions by the respondent 1. The Respondent's issue for determination is whether the Interested Party's Preliminary Objection is merited and grantable of which we support in the strongest voice as hereunder:- On ground number (ii) that the Court lacks jurisdiction, the Respondent submits that it's true as section 12 (1) of the Employment and Labour Relations Court Act, 2016 provides that and I quote: "12(1) The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the Provisions of this Act or any other written law which extends jurisdiction to the court relating to employment and labour relations including- (a) disputes relating to or arising out of employment between an employer and an employee; (b) disputes between an employer and a trade union; (c) disputes between an employers' organisation and a trade union organisation; (d) disputes between trade unions; (e) disputes between employers organisations (f) disputes between an employers' organization and a trade union's organisation. (g) disputes between trade unions and a member thereof; (h) disputes between an employers' organisation or a federation and a member thereof; (i) disputes relating to the registration and elections of trade union officials; and (j) disputes relating to the registration and enforcement of collective agreement. "Your Ladyship the Claimant submits that the Petitioners fall under no category hereinabove hence they cannot come to this Honourable Court to sue a trade union which they have never been members as no evidence has been provided to that effect and to confirm the same the 1st Petitioner one Mr. Amos Nehemiah Amwai in his own Sworn Affidavit dated 14th day of February, 2025 in MISC APPL. No. E049 of 2025 at Paragraphs (5) & (6) and I quote:- "(5) THAT, the matter had previously arisen after the Union wanted to renew the CBA between its members and the interested party between 2004-2005." "(6) THAT, the Applicants were not Part of the CBA negotiated by the Respondent and therefore they had to claim their dues separately." Your Ladyship the fore said Supporting Affidavit is attached to the Respondent's Replying Affidavit at pages (9) to (11) and at paragraph (7) of his further Affidavit dated 7th day of March 2025 attached the Respondent's Replying Affidavit at pages (12) to (14) confirms that the petitioners were not members and I quote: "THAT, in response to paragraphs (9) and (10) of the Replying Affidavit, I wish to state that the duty of fair representation extends beyond current union membership. While the Applicants were not initially members of the Respondent union, the Respondent willingly and voluntarily undertook to represent us. This is evidenced by the fact that the Respondent included us as beneficiaries in ELRC cause No. 41 of 2006 and pursued claims on our behalf, leading to the Judgement dated 14th 0ctober 2019. Having voluntarily assumed the duty, to represent us, the Respondent is legally and ethically bound to discharge this duty fairly and diligently. The Respondent cannot now selectively disavow its responsibility towards the Applicants merely on the grounds of non-membership when it willingly initiated and pursued legal proceedings on our behalf." 2. The Respondent herein submits that allowing the Petition to proceed shall be in violation of section 12 of the Employment and Labour Relations Court Act, 2016, as the Court lacks jurisdiction. That the Claimant on the issue number (i) on the Court being functus officio having delivered judgement in Nairobi ELRC Cause No. 41 of 2006 submits that the prayers and or orders being sought are similar to the orders sought in Civil Misc. APPL. No. E049 and an application in ELRC Cause No. 41 of 2026 which were dismissed and or struck out and the grounds are the same and similar hence should be struck out as the rulings in the said applications are still in force as nobody has reviewed, set aside or appealed against the same. Your ladyship this position has been held by the Honourable Court in ELRC Petition No. E140 consolidated with E160 of 2024 at Nairobi in which the Court stated that and I quote: "This petition challenges a process concluded upon following of due process and supported by two judgements that were not appealed to the Court of Appeal. The Court notes that the petitioner participated and is fully aware of the due process followed in the registration of the 4th Respondent. The Court is of the conclusion that the Petitioner is opening up matters already determined by the Court und is doing so in a wholly unfair bad faith knowing that it did not appeal the decisions of the Court and the matters are therefore res judicate." DECISION Whether the Notice of Preliminary Objection by the Interested Party has merit 1. The court notes that the petitioner had earlier filed a miscellaneous application in Amwayi & 64 Ex Employees of Rolmil Kenya Limited v Kenya Engineering Workers Union; Rolmil (Interested Party) [2025] KEELRC 1734 (KLR), seeking the following orders – 2. That a declaration be and is hereby issued that the Respondent trade union has breached its duty of fair representation to its members by unreasonably delaying to pursue claims for Rolmil Kenya Limited on behalf of the Claimants. 3. That a mandatory injunction be and is hereby issued compelling the Respondent to immediately commence negotiations and/or legal proceedings for the recovery of all outstanding benefits due to the Claimants within 14 days of this order. 4. That the Respondent be and is hereby ordered to compensate the Claimants for financial losses suffered due to the delay in pursuing their benefits claims, such amount to be determined by this Honorable Court. 5. That the Respondent be and is hereby ordered to establish clear timelines and procedures for pursuing members' benefits claims and to report to this Honorable Court on implementation within 30 days. 6. That the Respondent's be ordered to pay the decretal sum together with interest which should be disbursed forthwith in a transparent manner. 7. That the Respondent be and is hereby ordered to pay damages for breach of the duty of fair representation to each Claimant, such amount to be determined by this Honorable Court. 8. That the costs of this application be borne by the Respondent. 9. That such further or other orders as this Honourable Court may deem fit and just to grant in the circumstances. 10. The court dismissed the above Miscellaneous application and held as follows- ‘In the case herein, the nature of the orders sought by the Applicants are substantive and final in nature. Therefore, it follows that a resolution of the issues raised will require the taking of evidence. This will not be possible in a miscellaneous application, as parties will be denied an opportunity to be heard.19.In the instant Motion, the Applicants have raised weighty issues touching on the Respondent’s duty of fair representation to its members. To this end, the Applicants have sought inter alia; a declaratory order to the effect that the Respondent has breached its duty of fair representation; an order for compensation for the financial losses they have suffered due to the Respondent’s delay in pursuing their benefits; an order that the Respondent pays the decretal sum together with interest as well as damages for breach of the Respondent’s duty of fair representation to each Applicant.20.To find that a trade union has breached its duty of fair representation to its members is not a straightforward matter that can be determined in a summary manner without a proper trial.21.Under the Employment and Labour Relations Court (Procedure) Rules, 2024, a suit may be instituted by way of a Statement of Claim or a Petition and in the case of judicial review proceedings, in accordance with Sections 8 and 9 of the [Law Reform Act](https://new.kenyalaw.org/akn/ke/act/1956/48) and Order 53 of the Civil Procedure Rules.22.Therefore, in the event the Applicants were desirous to have the Court determine the matters raised herein with finality, they ought to have moved the Court in a proper manner as envisaged under these Court’s Rules.23.For the foregoing reasons, the Notice of Motion dated 14th February 2025, is struck out with no orders as to costs.’ 11. The threshold of a preliminary objection is settled by the decision of the Court of Appeal of East Africa in Mukisa Biscuit Manufacturing Co. Ltd versus West End Distributors Ltd [1969]EA 696, rightly famed for delineating what amounts to a preliminary objection. Law, JA, wrote that: “so far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which, if argued as a preliminary point, may dispose of the suit.” Sir Charles Newbold, P, in his concurring opinion, added, in part, that: “A preliminary objection is in the nature of what used to be called a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 12. On the question of res judicata in CK Bett Traders Ltd & 2 others versus Kennedy Mwangi & Another [2021]eKLR, the relied on decision of the Court of Appeal which set out the elements that must be present for a suit to be deemed as being res judicata as follows: '34. In that respect, the Court of Appeal held in The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others**,**[2017] eKLR)**,** that: [F] or the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms; **a)**The suit or issue was directly and substantially in issue in the former suit. b) That former suit was between the same parties or parties under whom they or any of them claim. c) Those parties were litigating under the same title. d) The issue was heard and finally determined in the former suit. e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. 35. The Court went on to state on the role of the doctrine: The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.’ The decision is upheld and applies to the instant objection. 1. Functus Officio is defined in Black’s Law Dictionary, Tenth Edition as: “having performed his or her office (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.” 2. The court finds that the instant petition seeks to enforce the duty of representation of the petitioners by the union. These are rights embedded under Article 41 of the Constitution. I find that was not the issue in Nairobi ELRC Misc. Appl.(sic) No. 41 of 2006 which was about claim for compensation. The court took judicial notice that the court in Amwayi & 64 Ex Employees of Rolmil Kenya Limited v Kenya Engineering Workers Union; Rolmil (Interested Party) [2025] KEELRC 1734 (KLR) guided the petitioners to file a substantive suit on the issue of fair representation in the execution in their favour. Whether the petitioners were members of the respondent and whether the respondent had a duty of fair representation are issues that must be determined on the merits. I do find that the issues raised in the petition are different from those in the Nairobi ELRC Cause No. 41 of 2006; thus, the petition is not res judicata. I was persuaded by the decision relied on by the petitioner in Nderitu & 55 others v Telkom Kenya Limited & another [2024] KEHC 2297 (KLR). The applicants are seeking to enforce the ruling of the court delivered on 14th October 2019 vide ELRC NO.ELRC Misc appl(sic) NO. 41 OF 2019 by Justice Wasilwa, which awarded the members of the respondent (ex-employees of the interested party, including the petitioners) a total sum of Kshs 363,065,128/-. It is thus clear that they are not seeking a re-engagement of the Court with its earlier decision. A court does not become functus officio merely because it has delivered a final decision in civil proceedings. The court retains its power to undertake several post-decision actions, including but not limited to a stay, review, execution proceedings and such other acts and steps. (see Nderitu & 55 others v Telkom Kenya Limited & another [2024] KEHC 2297 (KLR) Further in Leisure Lodge Ltd vs Japhet Asige and another (2018) EKLR the court held:“On the question that this court is functus officio, I do find that a trial court retains the duty and jurisdiction to undertake and handle all incidental proceedings even after a final judgment is delivered provided such proceedings do not amount to re-trying the cause but geared towards bringing the litigation to an end. That is the reason the court must undertake settlement of a decree, if parties cannot agree, handle applications for stay, review, setting aside and even execution proceedings including applications under Section 94 of the Act.’ 3. In the upshot, the Notice of Preliminary Objection by the interested party dated 1st December 2025 is held to be without merit and is dismissed with costs to the petitioners in the cause. Mention on 21st September 2026 for pre-trial directions in the petition. 4. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner: Ms Nganga h/b Kamau Respondent: Patrick Makale Interested Party: Ndengwa h/b Wepoh