https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1782

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** *(Before Hon. Lady Justice Monica Mbarũ)* **APPEAL NO. E402 OF 2025** **DIANA CHEPTOO AND OTHERS APPELLANTS** **AND** **ONESMUS MUSYOKA KILONZO AND 46 OTHERS APPELLANTS** *VERSUS* **SANA INDUSTRIES LIMITED RESPONDENT** (**Being an appeal and cross-appeal from the ruling of Hon. Joseph Were delivered on 24 November 2025 in Ruiru CMLERC No. E096 of 2025)** **JUDGMENT** The **appeal** and **cross-appeal** arise from the ruling delivered on 24 November 2025 in Ruiru CMLERC No. E096 of 2025. It consolidates appeals no ELRCA NO. E435 of 2025 and E402 of 2025. The background of the appeal and cross-appeal is the two applications, dated 25 September 2025 and 7 October 2025, filed before the trial court. An application dated 25 September 2025 was filed by the respondent, Sana Industries Limited, seeking an order of stay of all proceedings, including scheduled hearings, in all matters filed against it before the Chief Magistrates' Courts in Ruiru, Milimani, and Kiambu. These are matters in which several former employees have sued the respondent. In the application, the respondent also sought admission of the suit **MCELRC Cause No. E096 of 2025** to be heard and determined as a test suit on the issues of law and fact that are common across numerous employment claims filed against the respondent. In the Supporting Affidavit, the respondent stated that it had in excess of 400 cases against it before the trial court and the Milimani Commercial Courts. Despite similar facts and circumstances, diverse courts continue to issue conflicting decisions, creating unpredictability and injustice. The respondent therefore sought to have a test suit applied in all the cases filed against it over the same matters and cause of action by several employees. In the second application dated 7 October 2025, the respondent sought orders that, pending the hearing of the application dated 25 September 2025, a temporary order of stay of all proceedings in the mentioned causes be granted. In reply, the appellants filed a Replying Affidavit and aver that the court lacked jurisdiction to issue orders staying proceedings before other courts of equal and concurrent jurisdiction, namely the Kiambu Law Courts and the Milimani Commercial Courts. The proposal to consolidate over 417 cases from different courts and designate **Ruiru CMELRC Cause No. E096 of 2025** is contrary to Rule 21 of the Employment & Labour Relations Court (Procedure) Rules. Consolidation may only be ordered where there are common questions of law and fact, and where such consolidation will facilitate expeditious and fair determination of the suit, which was not the case. The Respondent’s suggestion that a single ‘test suit’ can determine issues common to all is legally untenable and amounts to collective adjudication without consent, thereby violating the appellants' constitutional rights. The trial court, having heard the parties, held that the contention that the court lacked the requisite jurisdiction by dint of section 27 (2) (d) of the Employment & Labour Relations Court Act (ELRC Act) is a misrepresentation of the law. Section 27 of the ELRC Act addresses the Employment & Labour Relations Court's jurisdiction as a superior court rather than a subordinate court. The jurisdiction of the subordinate court is set out under the ELRC Act and the Magistrates Courts Act. The court has the jurisdiction to hear the matter provided that the claimant’s monthly income is not more than Kshs. 80,000. And further, the appellant, having filed the claims before the court, cannot be expected to turn and claim that the court has no jurisdiction, whilst the jurisdiction to hear the claim could not be exercised to hear and determine the applications before the court. The learned magistrate also held that Rule 61 of the Employment and Labour Relations Court (Procedure) Rules (the Court Rules) is that a test suit is not only meant for matters where the cause of action is the same. It also applies where the issues of law or fact are similar, and once determined, the decision regarding those issues can be applied to similar matters. The principles for the determination of the matters raised in the claims by all the claimants are the same. And a test suit saves time and resources, including that of the court. In this instance, with over 600 pending cases, it would be an improper use of the Court’s time and the parties’ human resources to repeatedly call them to testify. The trial court allowed the application and ordered that all claims filed against the respondent at Ruiru Law Courts that are yet to proceed for hearing be stayed awaiting the determination of the test suit, being **Ruiru ELRC No. E096 of 2025 Diana Cheptoo Koech vs Sana Industries Limited.** The ruling did not apply to the related claims before the Milimani Commercial Court and the Kiambu Law Court. Aggrieved by the ruling, the appellant filed the **appeal,** and the respondent filed a **cross-appeal.** The appeal is on the following grounds: 1. *The Honourable learned magistrate erred in law and fact by failing to appreciate that he lacked the jurisdiction to stay proceedings pending before other subordinate courts of concurrent jurisdiction* 2. *The learned magistrate erred in law and fact in failing to properly appreciate and evaluate the Appellants' evidence that each of the 417 suits involved a unique employment relationship and distinct claims requiring separate determination of facts, terms of engagement, and grounds of termination, as envisaged under section 3 of the ELRC Act and Article 50(1) of the Constitution of Kenya, 2020* 3. *The Honourable Magistrate erred in law and fact by issuing consolidation and test suit orders that effectively create a binding framework for determining liability in a suit not properly before the Ruiru court and without the full participation of all 417 claimants, thereby violating principles of procedural fairness* 4. *The Honourable court failed to appreciate that the impugned orders constituted a wrongful exercise of judicial discretion, violated Articles 41, 48 and 50(1) of the Constitution and misapplied the law on test suits.* 5. *The learned magistrate erred in failing to consider and investigate the central dispute on union membership and representation.* The appellants’ case is that the appeal should be allowed with the following findings: 1. *The ruling and all consequential orders of Hon. Joseph Were in Ruiru CMELRC No. E096 of 2025 delivered on 24 November 2025 be set aside in full.* 2. *A declaration be issued that the consolidation and test suit orders were irregular, unlawful, prejudicial to the appellant and therefore null and void.* 3. *A declaration that the Honourable Magistrate acted without jurisdiction in purporting to stay proceedings before the magistrates’ courts at Kiambu and Milimani* 4. *A declaration be issued that the lower court had no jurisdiction to order consolidation and designate a test suit across matters pending before other courts of concurrent jurisdiction* 5. *The court issued an order restraining each of the 417 suits from proceeding independently before the respective courts where they were filed* 6. *Costs of the appeal.* **Cross-appeal** The cross-appeal is that: 1. *The learned magistrate erred in failing to find that the test suit outcome applies to all matters arising out of the same facts, including those before the Milimani and Kiambu Chief Magistrates Court* 2. *The learned magistrate erred in law and fact by failing to appreciate that Milimani and Kiambu matters raise common issues of law and fact arising from identical employment relationships between the parties, thereby warranting coordinated case management* 3. *The learned magistrate erred in failing to find that the multiplicity of parallel suits in Milimani and Kiambu exposes the parties to the same risks of inconsistent findings and duplicative litigation as much as those before the Ruiru Magistrates' Court, contrary to the principles of judicial autonomy and the overriding objective of the court* 4. *The learned magistrate erred in fact and in law by failing to apportion the appropriate weight to the evidence presented before him, and the applicable principles on appointment of a test suit, by excluding from the appointed test suit those matters currently pending before the Milimani and Kiambu Chief Magistrates' Courts.* The cross-appellant asks that the cross-appeal be allowed, and the ruling in Ruiru MCELRC No. E096 of 2025 be varied only to the extent that: 1. *All matters pending before the Milimani Commercial Chief Magistrates Court and Kiambu courts involving the respondent on issues substantially similar to the present dispute be stayed pending the hearing and determination of the test suit.* 2. *The order appointing and designating Ruiru MCELRC No. 096 of 2025, Diana Cheptoo Koetch vs Sana Industries Ltd as a test suit be extended to apply to all matters involving Sana Industries Limited as a respondent currently pending before Milimani Commercial Chief Magistrates Court and Kiambu Law Courts* 3. *All matters where Sana Industries Limited is respondent currently pending before Milimani Commercial Chief Magistrates Court and Kiambu Law Courts with similar facts/ legal questions or arising out of similar employment terms as the test suit do abide by the outcome and determination of the test suit being* ***Ruiru MCELRC No. E096 of 2025 Diana Cheptoo Koetch vs Sana Industries Limited.*** On the appeal, the appellant submitted that the learned magistrate fundamentally erred in law by purporting to stay proceedings pending before other courts of equal and concurrent jurisdiction situated in Kiambu, Milimani and Ruiru. The appellant cites the case of **Owners of the Motor Vessel “Lilian S” Caltex Oil (Kenya) Ltd [1989] KLR 1** for the proposition that jurisdiction flows from the Constitution or legislation and cannot be assumed through judicial craft or convenience. The jurisdiction of magistrates sitting as the Employment and Labour Relations Court is strictly defined by statute and the Gazette Notice issued pursuant to section 29 of the ERLC Act. Gazette Notice No. 6024 merely designate certain magistrates to hear and determine employment and labour relations disputes within their territorial and pecuniary jurisdiction, and does not confer supervisory powers, appellate powers, or powers to stay proceedings before courts of equal status. The learned magistrate, therefore, exceeded jurisdiction by purporting to issue orders affecting proceedings before separate courts presided over by duly designated judicial officers. By Article 162(2)(a) and 165(6) and (7) of the Constitution, supervisory jurisdiction over subordinate courts is reserved exclusively for the Employment and Labour Relations Court and the High Court, respectively. A subordinate court cannot supervise another subordinate court of equal status. The learned magistrate, therefore, exercised power unknown in law. The resultant orders were therefore void and incapable of legal sustenance. On the consolidation of suits, the court held that, by itself, it does not qualify a case as a test suit as held in **Joseph Murage Meru v Lucy Wangui Chege & Another [2013] KEHC 5181 (KLR).** The appellants argue that similar remedies do not create identical causes of action. Employment disputes are not determined by generalized allegations but by the underlying facts giving rise to each claim. The appellants submitted that they placed evidence before the subordinate court demonstrating that the over 417 claims sought to be consolidated were fundamentally distinct and incapable of collective determination. The impugned ruling, if allowed to stand, would create a dangerous precedent, enabling subordinate courts to supervise one another, centralise unrelated litigation, and curtail individualised justice. On the **appea**l and **cross-appeal**, the Respondent submitted that the trial court’s jurisdiction and discretion to adopt a test suit is firmly anchored in Rule 62 of the Employment and Labour Relations Court (Procedure) Rules 2024, where there is a clear statutory recognition that employment and labour relations courts are not only empowered but actively encouraged to adopt a structured case management tools where multiplicity of suits presents identical or substantially similar cases. The respondent relies on the case of **Transcend Media Group v Standard Group Limited [2021] KEHC 7871 (KLR)** for the proposition that consolidation is intended to save judicial time and avoid the risk of conflicting decisions arising from substantially similar facts and issues. The numerous appeals presently before this honourable court arise largely from different trial courts reaching different decisions on substantially similar questions of law and fact. Yet many of these disputes involve common and cross-cutting issues which could have been appropriately resolved through the determination of a single test suit. In **Bungoma Line Safari Ltd & Another v Onyango & Another [2024]** eKLR, the court held that a test suit is a convenient mode of treatment of multiple suits between the same parties where similar issues of law and fact arise. The claims were brought against a single employer and arose from a substantially similar employment relationship. The common questions included whether the alleged absence amounts to redundancy, whether severance pay is payable and whether leave beyond the statutory limit can be awarded. In **Kitui v Winguard Services Ltd [2025] KEELRC 962 (KLR),** the court held that a test suit should be adopted when numerous matters involve similar legal issues, as it prevents conflicting decisions and conserves scarce judicial resources. Once the court found that substantially similar questions existed, the overriding objective, the interests of consistency, and the need to avoid conflicting decisions required that the Milimani and Kiambu matters similarly abide by the outcome of the designated test suit. The respondent urged the Court to vary the impugned partial ruling and order that all matters pending before the Milimani Commercial and Kiambu Law Courts involving substantially similar questions of law and fact abide by the determination of Ruiru MCELRC No. E096 of 2025, being the designated test suit. **Determination** This is a first appeal, and the court is allowed to reassess the record, review the findings, and reach its conclusion. However, it should be considered that the learned magistrate had the opportunity to hear the submissions by the parties. The appeal and cross-appeal raise the issue as to whether the learned magistrate's findings directing that a test suit be conducted and that the same be applied to other courts of similar jurisdiction should be allowed. The appellant challenges the trial court's jurisdiction to make such orders applicable to other suits in the Milimani Commercial Court and the Kiambu Law Court. The cross-appeal also challenges the ruling that the learned magistrate should have applied the findings for a consolidation ad test suit to all pending cases filed against the respondent as they relate to the same matter. Indeed, under Gazette Notice No. 6024 of 10 June 2018, the magistrates are allowed to hear employment disputes. The Legal Notice given such mandate also applies to the application of the Court Rules to the magistracy when it hears and determines employment disputes. Under the Court Rules, consolidation and use of a test suit are allowed. Rule 61 of the Court Rules allows consolidation of numerous suits that raise a common question of fact or law, or that are practical and appropriate to consolidate. The Rule is that: ***61. The Court may consolidate suits if it appears that in any*** ***number of suits —*** * 1. ***some common question of fact or law arises; or*** 2. ***It is practical and appropriate to proceed with the issues raised in the suits simultaneously.*** Thus, under this rule, the magistrate with jurisdiction to hear an employment dispute may consolidate numerous suits that address a common question of fact or law. On the other hand, where numerous suits are filed, it is a practice and necessary to address the issues raised, and a consolidation is allowed. Thus, a consolidation is allowed where suits or several suits appear to raise some common question of fact or law. Equally, the court will consolidate suits where it is practical and appropriate to proceed with the issues raised in the suits simultaneously. See **Mwangi v Agence Française de Développement [2026] KEELRC 1678 (KLR).** Thus, the principal purpose of consolidation of suits is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. Indeed, in **EAN Kenya Limited** **v John Sawers & 4 others [200], eKLR,** the court emphasised that the test to be applied as to whether to consolidate suits or not is not whether the parties are the same, **but whether the same or similar questions of law or fact are involved in the suits.** This position is reiterated in [**Nguruman Limited v Jan Bonde Nielson [2014] KEHC 1718 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/1718/eng%402014-10-10)**.** Thus, the consolidation of suits allowed by the learned magistrate is lawful and allowed under the Court Rules. Can such consolidation apply to suits before other courts, such as the Milimani Commercial Court and the Kiambu Law Court, so that they fall under the jurisdiction of the Ruiru Law Courts? This is aptly addressed under the Court Rules. Rule 62 thereof allows for a test suit. ***62. ( l ) Where two or more persons have instituted suits against the same respondent, the Court may, either on its own motion or upon the application of any of the parties with notice to all the affected parties, if satisfied that the issues to be tried in each suit are similar, make an order —*** * 1. ***directing that one of the suits be tried as a test case; and*** 2. ***staying all the steps in the other suits until the selected suits are determined or fail to be a real trial of the issues.*** ***(2) The outcome of a test suit shall be binding on any suit that is stayed under sub-rule ( 1).*** Where several suits are filed against the same respondent, the court, on its own motion or upon application by the parties, with notice to all affected parties, may designate a test suit. The suit must relate to the same respondent and relate to the same issue(s). The principle of having a test suit to apply in other similar cases applies to all courts, as held in [**Nyaranga v Mwiti [2026] KEHC 3113 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3113/eng%402026-03-03)**.** Cases raising similar facts or from similar causes of action against the same respondent are best heard through a test suit. The Court of Appeal in **Esichupa & 2 others v Indagasi [2026] KEHC 2574 (KLR)** also held that where a test suit applied to address the question of liability in multiple suits against the same respondent, such a test suit is permissible. The Supreme Court, too, has applied a similar principle in its Rules as part of proper case management. Thus, Rule 21 of the Supreme Court Rules places consolidation of suits as a test suit under the same Rule: ***The Court may, upon application by any party or on its own motion, where satisfied that the issues involved in any two or more proceedings are similar, order that the proceedings be—*** 1. ***consolidated, on such terms as the Court may determine; or*** 2. ***determined as a test case, and there be a stay in all steps in the other matters until the test suit is determined, or shall have failed to be determined or to be a real trial of the issues.*** The provisions above offer best practices. With a test suit, there will be coherence, proper adjudication of numerous suits, and avoidance of conflicting orders. It is therefore necessary to stay proceedings in all other suits as the test suit is heard and determined. The appeal, thus challenging the consolidation of suits, including suits before other courts of equal status, is thus addressed through a test suit. Pending the hearing and determination of a test suit before the trial court, all other pending suits before a different court should be stayed to allow for the common and test suit to be heard and determined first. Thus, the cross-appeal is addressed. Regarding costs sought in the appeal and cross-appeal, the nature of cases now before the different courts shall be stayed pending the hearing and determination of Ruiru MCELRC No. E096 of 2025, including the issue of costs. The learned magistrate thus well applied the law and considered the common issues raised in the multiple suits. However, the court appreciates that the parties are before different courts at this point. This includes suits filed before the Milimani Commercial Courts and the Kiambu Law Court. In terms of section 3 of the ELRC Act, to expedite the hearing of the test suit in Ruiru MCELRC No. E096 of 2025 shall be heard on a priority basis. The mentioned date shall be allocated for attendance and to take hearing directions on 15 July 2026. **Accordingly, the appeal and cross-appeal jointly addressed, the following orders are issued:** 1. **Ruiru MCELRC No. E096 of 2025 shall apply as the test suit.** 2. **Notice shall be issued by the common respondent, Sana Industries Limited, in all other suits pending before different magistrates' courts, including the Milimani Commercial Court and the Kiambu Law Courts, in this regard.** 3. **All the other suits pending before different magistrates' courts, including Milimani Commercial Court and Kiambu Law Courts, are hereby stayed pending hearing and determination of the test suit in Ruiru MCELRC No. E096 of 2025.** 4. **Mention for taking hearing directions on 15 July 2026 before the Chief Magistrate, Ruiru. Hearing shall be on a priority basis.** 5. **Costs shall abide by the outcome in the test case.** **Delivered in open court this 29th day of June 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Samuel Maruga** ……………………………………………… and ………………….…………………………..