https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8643

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL AND TAX DIVISION** **COMM. CASE NO. E625 OF 2025** **BETWEEN** **BENARD ODERO OKELLO T/A** **ODERO AND PARTNERS ADVOCATES……………………………..…..PLAINTIFF** **AND** **KENYA COUNTY GOVERNMENT** **WORKERS UNION (NAIROBI BRANCH) .....................................1ST DEFENDANT** **KENYA COUNTY GOVERNMENT** **WORKERS UNION (STAFF BRANCH)……………….………….2ND DEFENDANT** **KENYA COUNTY GOVERNMENT** **WORKERS UNION…………………………………..…………….3RD DEFENDANT** **AND** **NAIROBI CITY COUNTY…………………….………………INTERESTED PARTY** **RULING** **Introduction and Background** 1. On 23rd September 2025, the Plaintiff filed the present suit together with an application seeking a *Mareva* injunction to freeze/restrain the 1st Defendant(“the Nairobi Branch Union”) from accessing or transferring money from bank accounts held at *ABSA* Bank, *Equity* Bank, and *Co-operative* Bank, restrain the Interested Party (“Nairobi County”) from making any further direct payments to the Defendants(“the Unions”) , their members, or third parties and that it be ordered to deposit Kshs.150,000,000.00/= into court or an escrow account from the balance of the decretal sum before any other payments are made. 2. The Unions responded to the suit and application by filing inter alia Notices of Preliminary Objection dated 21st and 22nd October 2025 seeking to strike out the suit on grounds that the present application is substantially similar to an earlier application dated 19th November 2024 filed in **ELRC Cause No. E068 of 2022** and that both address the Plaintiff's claim for legal fees. The Unions argue this risks conflicting rulings, violating **section 6** of the ***Civil Procedure Act*** and because the matter is *sub judice*, the court lacks jurisdiction to hear it. They further state that the Plaintiff lacks locus standi to sue the County Workers Union because the instruction letter of 31st January 2021 and the Fee Agreement of 17th September 2023 were not signed by the General Secretary of the Union as required by **sections 2 and 73(3)** of the ***Labour Relations Act***. That the verifying affidavit in the original ELRC case was sworn by Festus Ngare, who lacked authority from the Union’s authorized representative. The Unions claim that the suit is based on allegedly fraudulent and unauthorized documents intended to harass them, that they never engaged the Plaintiff's law firm nor authorized the original ELRC suit. 3. The Plaintiff opposes the Objections through the Grounds of Opposition dated 21st November 2025 stating that they fail the test for a preliminary objection as set out in the landmark case of ***Mukisa Biscuits Manufacturing Co. Limited vs West End Distributors* (1969) EA 696.** That a valid preliminary objection must be based on pure points of law, not disputed facts but the objections do not meet this standard as they are contingent on facts that are not evident from the pleadings and are genuinely disputed.He states that these issues can only be resolved through evidence and not through a summary legal argument and therefore, they cannot be raised by way of a preliminary objection. 4. The Plaintiff avers that the suit is not *sub judice* because the subject matter is different as this suit concerns a breach of an Advocate-client fee agreement governed by the ***Advocates Act*** whereas the ELRC case was an employment and labour dispute. That to determine if the suits are the same, the court would have to examine evidence including pleadings, parties and issues which cannot be done in a preliminary objection. 5. On the challenge of locus standi, the Plaintiff responds by stating that reliance on the ***Labour Relations Act*** is misplaced as the stated **section 73** deals with trade dispute adjudication, not advocate-client fee agreements. That the allegations about lack of authority are not pure points of law as they are substantive issues requiring the court to ascertain facts and exercise discretion. For these reasons, the Plaintiff urges the court to find that the Preliminary Objections are defective, premised on disputed facts, and do not disclose pure points of law. He seeks an order that both Preliminary Objections be dismissed with costs to the Plaintiff. 6. The Objections were canvassed by way of written submissions which are on record and since they mirror the positions of the parties above, I will not rehash the same but make relevant references in my analysis and determination below. **Analysis and Determination** 1. From the submissions of the parties, the court is being called to determine whether the Objections are merited. The parties agree that in a preliminary objection, the facts pleaded by the other party are assumed to be correct, the objection must be a matter of law which is capable of disposing off the suit, the objection cannot be blurred by factual details calling for evidence and the objection must not call upon the Court to exercise discretion (see ***Mukisa(supra)***]. I am in agreement with the Plaintiff that to determine whether this suit is *sub judice* **ELRC Cause No. E068 of 2022,** the court would need to compare the pleadings, parties, and subject matter of both suits, examine whether the reliefs sought are substantially the same and ascertain the current status of the ELRC proceedings, including whether the Plaintiff’s application there has been determined or is still pending. 2. If the Unions were to present the said pleadings, then the Objections would cease to be on pure points of law as the court will now be invited into a fact-finding mission based on evidence in determining whether the other suits are similar to the present one. I am in agreement with the Plaintiff that this is a handicap to the Unions’ Objection as the court cannot accept evidence in determining a Preliminary Objection. 3. Further, the County Workers Union’s claim that the Plaintiff lacked authority because the fee agreement was not signed by its General Secretary under **sections 2 and 73(3)** of the ***Labour Relations Act*** would also require factual determination. The court would need to examine the disputed signature on the agreement, determine whether the signatories had actual or ostensible authority as assess whether the County Workers Union is bound by the actions of the other Unions. These are clearly contested factual issues that cannot be resolved on a pure point of law. 4. Whereas there is no legal provision barring a party from raising the doctrine of *res sub judice* by way of a preliminary objection, there is also none barring the ventilation of the same by way of a formal application. The advantage of an application is that the applicant has the luxury and liberty of presenting evidence as opposed to a preliminary objection. It would have been prudent for the Unions to raise the challenge of *res subjudice* by way of a formal application where it could have annexed the pleadings and such other evidence that would have guided the court in its determination. Actually, the court in **George Kamau Kimani & 4 others v County Government of Trans-Nzoia & another [2014] KEELC 104 (KLR)** while discussing a challenge of res judicata by way of preliminary objection stated as follows: *‘One cannot raise a ground of res judicata by way of preliminary objection. The best way to raise a ground of res judicata is by way of notice of motion where pleadings are annexed to enable the court to determine whether the current suit is res judicata. Professor Sifuna did not raise the issue of res judicata by way of notice of motion. Professor Sifuna only annexed a ruling in respect of a case which was struck out. This is not a proper way of raising the issue of res judicata. The other points raised in the preliminary objection are issues which require ascertainment of facts by way of evidence. They cannot be brought by way of preliminary objection.* 1. I am in further agreement with the Plaintiff’s submissions that this court has jurisdiction over disputes concerning advocate-client fee agreements under the ***Advocates Act*** as **section 2** of the therein defines "Court" as the High Court for purposes of such disputes. The ELRC’s jurisdiction under **Article 162(2)** of the ***Constitution*** and **section 12** of the ***ELRC Act*** does not extend to adjudicating breach of advocate retainer agreements. Therefore, even if the *sub judice* argument were properly raised, it would face a substantive hurdle because the two courts do not have equal jurisdiction over this subject matter. It is for these reasons that I find that the Objections are not preliminary objections in the pure sense of the law and the same are dismissed. **Conclusion and Disposition** 1. In the foregoing, I dismiss the Preliminary Objections dated 21st and 22nd October 2025 with costs to the Plaintiff. The suit and application dated 23rd September 2025 are properly before the court and will be determined on their merits. The matter will be mentioned on a date to be fixed on when the parties can file and highlight their submissions on the application. **DATED SIGNED and DELIVERED virtually at NAIROBI this 19TH DAY of JUNE 2026** **............................................................................** **J.W.W. MONGARE** **JUDGE** **IN THE PRESENCE OF** 1. Mr. Omboga holding brief for Mr. Omiti for the Plaintiff. 2. Mr. Mark Otieno holding brief for the 1st and 2nd Defendants/Respondents. 3. Ms. Atieno holding brief for Mr. Oketch for the 3rd Defendant. 4. N/A for the Interested Party. 5. Amos- Court Assistant