[2023] KEELRC 296 (KLR)

Elpa & 212 others v Majani Mingi Group of Companies; Kenya Plantation & Agricultural Workers Union & 3 others (Interested Parties) (Petition 18 of 2019) [2023] KEELRC 296 (KLR) (2 February 2023) (Ruling)

Neutral citation: [2023] KEELRC 296 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nakuru

Petition 18 of 2019

DN Nderitu, J

February 2, 2023

IN THE MATTER OF VIOLATION AND/OR THREATENED VIOLATION AND/OR INFRINGEMENT OF THE FUNDAMENTAL RIGHTS AND FREEDOM UNDER ARTICLES 10, 19, 20, 22, 23, 24, 25(A) AND (B), 26, 28, 30, 41, 43, 48 AND 162(2) (B) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE EMPLOYMENT ACTS NO 11 OF 2007; SECTIONS 7, 8, 15, 17, 18, 21. 26. 27, 28, 29, 30, 37, 40, 45(5), 46, 48, 49, 74, AND 75 AND IN THE MATTER OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT NO. 20 OF 2011, SECTIONS 3, 12, 13, 19, 20, 22, 29, AND 34 BETWEEN

Between

Ekiru Eligoi Elpa

1st Petitioner

Rose Anyango Racoki

2nd Petitioner

RuthTumnyambie Tumbo

3rd Petitioner

Ismail Omondi Johana

4th Petitioner

Musewe N Ojuondo

5th Petitioner

Joseph Atulo Awabo

6th Petitioner

George Ochieng Shikuku

7th Petitioner

Aloice Otieno Odego

8th Petitioner

John Rager Migele

9th Petitioner

Lydia Wainja Amango

10th Petitioner

Julius Mukiria Kamau

11th Petitioner

Roger Kamau

12th Petitioner

Petronila Baraza Ouma

13th Petitioner

Akope Lopungure Akuru

14th Petitioner

Rosemary Nabwende

15th Petitioner

Mary Ayienda

16th Petitioner

Florence Mwichweze

17th Petitioner

Marcel Olengo

18th Petitioner

Akuru Longit

19th Petitioner

Lilian Kong’ato Kibet

20th Petitioner

Milka Wangari Chege

21st Petitioner

Susan Ekai Ekael

22nd Petitioner

Philip Otanga

23rd Petitioner

Eunice Wanjiku Katundu

24th Petitioner

John Acham

25th Petitioner

Susan Apua Lowoi

26th Petitioner

Zabron Anyangu

27th Petitioner

Margaret Kadogo

28th Petitioner

Mary Asimit

29th Petitioner

Jecinta Wanjaa Nzuli

30th Petitioner

Susan Akiru Kasim

31st Petitioner

Esther Fotesia

32nd Petitioner

Jared Okhuya

33rd Petitioner

Jemima Muliebi

34th Petitioner

John Ombaso

35th Petitioner

Peter Wafula

36th Petitioner

Mary Kisiani

37th Petitioner

George Ouma Omwaka

38th Petitioner

Joseph Ambesa

39th Petitioner

Jane Wanjiku Mwangi

40th Petitioner

Alfred Ouma

41st Petitioner

Grace Nyokavi Muiti

42nd Petitioner

Ruth Akwabi

43rd Petitioner

Margaret Atieno Omuok

44th Petitioner

Margaret Atieno Owuor

45th Petitioner

Joseph Kiplagat Tumbo

46th Petitioner

Charles Anyika Omunene

47th Petitioner

Caren Anyango

48th Petitioner

Javan Mukana

49th Petitioner

Hanna Ndululu

50th Petitioner

Joanes Owiti Oleche

51st Petitioner

Maurice Omondi Oluoch

52nd Petitioner

Stephen Oduor Malowa

53rd Petitioner

Caren Anyango Ogwayo

54th Petitioner

Mwanahawa Tekete Atulo

55th Petitioner

Christine Anango Otieno

56th Petitioner

David Kigotho Githimu

57th Petitioner

Zakaria Njoroge Kahiga

58th Petitioner

Virgignia Nyambura Njoroge

59th Petitioner

Janet Ionisio

60th Petitioner

Agneta Achieng Otieno

61st Petitioner

Dominic Webekeya

62nd Petitioner

Anton Mukhwana Webekeya

63rd Petitioner

Penina Chepkemoi Kiprono

64th Petitioner

Catherine Okoth Osoro

65th Petitioner

Titus Kipkemoi Chirchir

66th Petitioner

Michael Odhiambo Musumba

67th Petitioner

Christine Chepkoech Ruto

68th Petitioner

Joseph Opiyo Amieno

69th Petitioner

Samwel Oloo Ng’ang’a

70th Petitioner

Jane Chelang’at Nge’tich

71st Petitioner

Maria Adhiambo

72nd Petitioner

Jane Awino

73rd Petitioner

Margaret Olal Obumo

74th Petitioner

John Ng’ang’a Njenga

75th Petitioner

Miriam Mwangari Mburu

76th Petitioner

Samuel Ogilo

77th Petitioner

Fanuel Ochola Omolo

78th Petitioner

Alice Wamaitha Mungai

79th Petitioner

Rose Aoko Okumu

80th Petitioner

Emily Achieng’ Ouma

81st Petitioner

Kimoi Chepkoskei Rotich

82nd Petitioner

Samwel Omechang Lowaso

83rd Petitioner

Erupe Ekeno Lukwawi

84th Petitioner

Michael Kabaka Anzach

85th Petitioner

Margaret Luchani Kukani

86th Petitioner

Ekaudu Adiaka Iripon

87th Petitioner

Atii Ibai Luwinani

88th Petitioner

Yaban Erum

89th Petitioner

Florence Indosiondiano

90th Petitioner

Lucy Atieno

91st Petitioner

Alfred Ouma Nanga

92nd Petitioner

Rajab Adiaka

93rd Petitioner

Rose Achieng Omondi

94th Petitioner

Jeniffer Nyakech Wanga

95th Petitioner

Susan Akurur Kasrim

96th Petitioner

Philis Akinyi Ndiawo

97th Petitioner

Samwel Mitei Tuwei

98th Petitioner

Charles Omondi Okumu

99th Petitioner

Elizabeth Nabala Meshack

100th Petitioner

Margaret Akuku Ogilo

101st Petitioner

Alban Ndiwo Magunga

102nd Petitioner

Jesima Kadenyekai Lungai

103rd Petitioner

Jane Auma Oile

104th Petitioner

Vincent Ogundi Ogola

105th Petitioner

David Nderitu

106th Petitioner

Zablon Oile Ongalo

107th Petitioner

Amana Loirian

108th Petitioner

Joshua Mugo Kuria

109th Petitioner

John Obado

110th Petitioner

Waithera Kamau Maina

111th Petitioner

John Maina Kamau

112th Petitioner

Shem Tim Wanjala

113th Petitioner

Pius Okise Oloye

114th Petitioner

Aloyce Wameyo Oduor

115th Petitioner

Pamela Nafula

116th Petitioner

Tari

117th Petitioner

Joseph Ewesit Alian

118th Petitioner

Wicklife Ashitiba

119th Petitioner

James Olutola Omuyoyi

120th Petitioner

John Omolo Anyiko

121st Petitioner

Joseph Kipyegon Changwony

122nd Petitioner

Omari Rajabu Liberia

123rd Petitioner

Peter Otieno

124th Petitioner

Eunice Atieno Areja

125th Petitioner

Samuel Cheruityot Kipyeghon

126th Petitioner

Daniel Kiplagat Chirchir

127th Petitioner

Smawl Ogita

128th Petitioner

Ayaban Etumo

129th Petitioner

Joseph Kibiegon Chepkwony

130th Petitioner

Harrison Amakobe

131st Petitioner

Rose Oyucho Ogola

132nd Petitioner

Patrick Okumwa Itukha

133rd Petitioner

Peter Kiarie Gatuku

134th Petitioner

Susan Wanjiku Waweru

135th Petitioner

Jedida Gathoni Gitau

136th Petitioner

Joseph Esongul Nanoburak

137th Petitioner

Elunya Luotumoe Egule

138th Petitioner

Virginia Nyambura Njoroge

139th Petitioner

Labat Lubang’a Kiberenge

140th Petitioner

Mary Akori Loiman

141st Petitioner

Margaret Oiri Otieno

142nd Petitioner

Dismas Otieno Aunya

143rd Petitioner

Mary Wanjiku Njuguna

144th Petitioner

Florence Akhasaya Mutambi

145th Petitioner

Loroo Erum

146th Petitioner

Kagali Emanyanga Keberenge

147th Petitioner

Julia Wanjiku Kinyenje

148th Petitioner

Veronica Wanjiku Githani

149th Petitioner

Eunice Wanjiku Gatundu

150th Petitioner

Jane Jerono Soy

151st Petitioner

Samwel Kibet Kemoi

152nd Petitioner

Michael Omondi Odhuongo

153rd Petitioner

Christine Chepchirchir Magarama

154th Petitioner

Alice Adhiambo Obongo

155th Petitioner

Michael Obongo Opiyo

156th Petitioner

Mary Njoki Irungu

157th Petitioner

Colleta Litabi Ashiono

158th Petitioner

Joash Okanya Oluteru

159th Petitioner

Philice Adhiambo Kiara

160th Petitioner

Joseph Mbuya Omieno

161st Petitioner

Maria Cherono

162nd Petitioner

Musa Maloba Athewa

163rd Petitioner

Julius Njau Wanjohi

164th Petitioner

Teresia Odero Obiero

165th Petitioner

John Ouya

166th Petitioner

Kimuru Nduati Kimuri

167th Petitioner

Jane Chemutai Mitai

168th Petitioner

Julius Musumba Malala

169th Petitioner

Kibet Chepkurui Cheruiyot

170th Petitioner

Cleophus Otieno Ayoo

171st Petitioner

Ayiera J Omach

172nd Petitioner

John Omuchenga Izoberi

173rd Petitioner

Khalil Kola Musa

174th Petitioner

Mary Anyango Obieno

175th Petitioner

Petitioner Boas Ochieng

176th Petitioner

Irene Awuor Onyango

177th Petitioner

Esther Lutheru Ekuru

178th Petitioner

Annah Ekomwo Ret

179th Petitioner

Plista Awuor Odhiambo

180th Petitioner

Mary Murinjui

181st Petitioner

Selina Mukoya Bulinga

182nd Petitioner

Maria Otieno Odhiambo

183rd Petitioner

Cikoye Omanyi

184th Petitioner

Mary Wairima Rondos

185th Petitioner

John Otieno Musumba

186th Petitioner

Joseph Uma Omieno

187th Petitioner

Nawoingrot Loochu

188th Petitioner

Samson Kipchilat

189th Petitioner

Elizabeth Kabon Biwot

190th Petitioner

Elizabeth Talai Kipkoech

191st Petitioner

Mary Akinyi Nyunja

192nd Petitioner

Grace Kemoi Arusei

193rd Petitioner

Jecinta Atuko Ebetet

194th Petitioner

Susan Anyango Ogutu

195th Petitioner

Peter Omwakwe

196th Petitioner

Japheth Abucheri Anyanga

197th Petitioner

Charles Baraza Okumu

198th Petitioner

Masliana Auma Handa

199th Petitioner

Sarah Catherine Wesonga

200th Petitioner

Joseph Kenyata Lupete

201st Petitioner

Joseph Ekadeli Eyenan

202nd Petitioner

Wilson Tanu Chebi

203rd Petitioner

James Aracha Amara

204th Petitioner

Mary Awuor Obare

205th Petitioner

Elizabeth Masiro Wanzetse

206th Petitioner

Morbert Opondo Rakula

207th Petitioner

Rosemary Namusi

208th Petitioner

Leah Nyokabi Muhia

209th Petitioner

Sylvine Jepkemoi Koror

210th Petitioner

Lucy Jepkech Kiprop

211th Petitioner

Ibrahim Odongo Sirisia

212th Petitioner

Rose Nyende Astiua

213th Petitioner

and

Majani Mingi Group Of Companies

Respondent

and

Kenya Plantation & Agricultural Workers Union

Interested Party

National Hospital Insurance Fund Board Of Management

Interested Party

National Social Security Fund Board Of Trustees

Interested Party

Commissioner Of Domestic Taxes

Interested Party

Ruling

I. Introduction 1. Vide an amended petition dated May 20, 2022 drawn by Arusei & Co Advocates the petitioners are seeking the following –i.A declaration that the petitioners were the respondent’s employees and therefore, they were entitled to all terminal dues accorded to every other employee upon retirement/termination of employment: and above all to be treated fairly and with dignity.ii.A declaration that the action by the respondent to deny the petitioners their terminal dues together with all the other rights accorded to the employees by the law was illegal; unfair labour practices; unconstitutional and a violation of the petitioners rights to the equal protection of the law.iii.That the respondent to present all the employment records of the petitioners for the calculation/tabulation of their right/correct terminal dues entitled to each petitioner.iv.A declaration that the petitioners are entitled to their terminal benefits together with the interest appurtenant to.v.A declaration that the discharge vouchers signed by the employees upon termination of their employment were not and/or cannot be interpreted to include the terminal dues not paid to the petitioners and to that extent the discharge voucher is not conclusive and is impugned.vi.An order that exemplary damages be awarded to the petitioners for the respondent’s acts of oppression and arbitrariness to the petitioners for subjecting them to difficulties for all these years.vii.An order to compel the respondent to pay the petitioners severance pay, prorata salary for the period of employment, days worked and overtime, gratuity pay, benevolent contributions made by the petitioners and such other appropriate reliefs as this honourable court shall deem just and fit to grant; andviii.Costs of the petition and interest thereon at court rates.

2. The respondent entered appearance through Sheth & Wathigo Advocates dated October 16, 2019 after it was served with the original petition dated October 7, 2019. The 1st interested party appointed KTK Advocates to act for it and the 4th interested party appointed Shijenje Johnson, advocate, to act for him. The 2nd and 3rd interested parties have so far not filed any papers on record.

3. Vide a notice of preliminary objection (hereinafter the po) dated February 22, 2022 filed in court on March 16, 2022 the respondent raised the following three preliminary points for determination by this court before the main cause is heard –1. That the entire petition herein be dismissed as it offends the principle of lis pendens and sub-judice pursuant to section 6 of the Civil Procedure Act on account that the subject matter is pending before a competent court in Nakuru ELRC No E015 of 2020. 2.That the claim herein be dismissed as the same is res judicata pursuant to section 7 of the Civil Procedure Act having been decided by a court of competent jurisdiction in Nakuru Industrial Cause No 76 of 2013. 3.That the claim herein is statute barred as it offends the provisions of section 90 of the Employment Act which makes the entire claim fatally defective and ripe for dismissal ab initio.

4. When this matter came up in court for directions on March 23, 2022 the court directed that the PO be heard first and that the same be canvassed by way of written submissions by counsel for the parties. Counsel for the respondent and for the petitioners filed their respective written submissions on May 23, 2022. On July 20, 2022 counsel for the 1st interested party informed the court that they were not filing any submissions. with the leave of court, the petitioners’ counsel filed supplementary submissions on July 26, 2022. Counsel for the 4th interested party did not file submissions, while the other interested parties, as stated above, have so far not filed any papers in court.

5. This ruling is hence in regard to the POissued by the respondent raising the three issues alluded to above.

II. Submissions by respondent’s counsel 6. Counsel for the respondent identifies the three issues for determination by this court in the PO to be whether this cause is lis pendens andsub-judice, res judicata, and or whether this cause is statutorily time barred. This court agrees that those are the three main issues, and then there is the issue of costs of the PO and the main cause, just in case the court finds either of the three issues in the affirmative and hence strikes out the petition.

7. Counsel has cited Mukhisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696 and Oraro v Mbaja (2005) eKLR among other decisions in delineating what constitutes a properPO.

8. A far as this court understands the applicable law and principles, a PO is a point or points of law that if successfully argued may dispose of a cause or an issue in controversy between parties. Such a POmay relate to any legal issues and the same may relate to the main cause or even an interlocutory application or proceedings. The POmay be raised on legal grounds such as jurisdiction of the court, legal capacity of a party, res judicata, bar or estoppel by law, incurably defective pleadings, or any other such grounds based on the Constitution, statute law, or precedents.

9. A most distinguishing feature of a PO from any other objection is that it should be based on law not on contested facts which may require a court to interrogate the pleadings and or call for evidence. The issue(s) should be so readily visible, prima facie, that the trial court should not require a legal microscope or binocular to see, identify, and isolate the legal issues in contest in the PO. The PObecomes even clearer where the facts that would obscure the law are either admitted and or agreed by and between the parties.

10. As at the time of writing this ruling the respondent and the interested parties have not filed their responses to the petition. The court shall hence not speculate on what responses or defences shall be raised against the claims in the petition by the respondent and the interested parties.

11. Onlis pendensand sub-judice counsel has relied on section 6 of the Civil Procedure Act arguing that the issues raised by the Petitioners herein are the subject matter in Nakuru ELRC No E015 of 2020. Counsel argues that the same issues had also been raised and determined in an earlier cause being Nakuru ELRC No 76 of 2013. Counsel has cited ANN V RMK(2021) eKLR in support of this argument.

12. However, the respondent has not provided the court with the proceedings in Nakuru ELRC No E015 of 2020 and Nakuru ELRC No 76 of 2013 in support of the foregoing allegations and the court has thus not been put in the picture as to who the parties and issues are in those causes.

13. On res judicata, counsel has cited section 7 of the Civil Procedure Act which provides as follows –“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same 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.”

14. The essence of the doctrine of res judicata is to avoid duplicity of causes and forum-shopping. Litigation should come to an end in one way or the other. The denial of a party to file and prosecute multiplicity of causes over the same subject matter also allows jurisprudential stabilization by avoiding and or limiting the possibility of courts arriving at conflicting findings and conclusions over the same subject matter based on the same facts and evidence. It also saves time and costs to parties and court.

15. As it should be the case, the 1st respondent has raised the POat the earliest opportunity available – See Independent Electoral Boundaries CommissionvMaina Kiai & 5others (2017) eKLR.

16. Counsel has submitted that the petitioners herein were part of a larger group who were represented by the 1st interested party as the claimants in Nakuru ELRC No 76 of 2013. Counsel submits that the issues raised in this petition were the same issues raised in that cause and that the same were deliberated on by a court of competent jurisdiction and a verdict rendered, which judgment has not been challenged by way of a review or appeal.

17. Counsel has citedKasamba Enterprises Limited V Equity Bank (Kenya) Limited (2022) eKLR and William Koross (Legal Representative of Elijah CA Koross)vHezekiah Kiptoo Komen & 4others (2015) eKLR among other decisions in laying emphasis that adding new parties or prayers in a cause whose subject matter has been concluded does not offer an escape route for a cause that is res judicata.

18. Counsel passionately argues that if the petitioners are unhappy with the consent judgment recorded in Nakuru ELRC No 76 of 2013 they ought to have applied for review in the same cause or appeal against the said judgment. Counsel submits that filing a new cause is not an option available to the claimants herein. Counsel argues that since the former cause was concluded as alluded to above this instant petition is res judicata and that this court isfunctus officio and hence prays that the same be struck out with costs in lemine.

19. On the third issue of this cause being statutorily time barred, counsel has cited section 90 of the Employment Act and section 4(1) of the Limitation of Actions Act as the law that prohibits and bars the petitioners from filing this petition. Counsel argues, without prejudice to the arguments advanced in regard to the cause beingres judicata, that if the petitioners had any good cause of action they ought to have filed the same within three years of the cause of action arising.

20. Counsel submits that Nakuru ELRC No 76 of 2013 was concluded by way of a consent judgment recorded on November 2, 2015 and this should signal that the cause of action by the petitioners arose before 2013 and was concluded in 2015. According to counsel the claim by the petitioners is therefore statutorily time barred.

21. Counsel submits that the petition herein by the petitioners is a classic example of abuse of court process and cites Muchanga Investments LtdvSafaris Un-Limited (Africa) Ltd & 2others (2009) KLR 229 to buttress that argument. On this ground counsel again prays that this petition be struck out with costs.

III. Submissions By Petitioners’ Counsel 22. The petitioners’ counsel has cited Mukhisa Biscuits case (Supra) in delineating the boundaries of a proper PO. Counsel submits that counsel for the respondent has misconstrued the nature of the petition herein. Counsel submits that as per their prayers in this petition the petitioners are seeking various remedies which were neither litigated in Nakuru ELRC No 76 of 2013 and nor are they the subject matter in Nakuru ELRC No E015 of 2020. Counsel argues that in any event this petition was filed in 2019 before Nakuru ELRC No E015 of 2020 was filed and that the issues and parties in the petition are different from those that were the subject matter in Nakuru ELRC No 76 of 2013.

23. Counsel submits that in any event the respondent has not availed any materials before this court to establish that the subject matter in the two causes and the parties are the same as those in this petition. Counsel has citedGeorge Kamau Kimani & 4 OthersvCounty Government of Trans-Nzoia &another(2014) eKLR to buttress the argument that the POmust fail as the allegations by the respondent have not been substantiated and that such substantiation cannot be achieved without this court receiving evidence from the parties.

24. On the third issue of statutory bar to the petition, counsel submits that the petition is neither time barred under the Limitation of Actions Act nor under section 90 of the Employment Act. Counsel has relied on OrarovMbaja(2005) eKLR and IEBCvJane Cheperenger & 2others(2015) eKLR in emphasizing that the POby the respondent is in total abuse of the process of court as this court is being called upon to go out of its way to investigate contested facts and search for pleadings in the aforementioned causes, which materials are mentioned by the respondent in the PO, yet it has not presented or availed the said pleadings and materials to court.

25. In the supplementary submissions counsel reiterates the submissions summarized above and categorically states that there is nothing in common between this petition and ELRC No 76 of 2013 and No E015 of 2020.

26. Counsel concludes that in view of the remedies sought in the petition the same is neither against the principles of lis pendens, res judicata, nor statutorily time barred under Limitation of Actions Act, Employment Act, or indeed any other law or at all and prays that the PObe dismissed with costs.

IV. Determination 27. This court agrees with counsel for both parties that there are three issues for determination as raised in the POby the respondent. The first issue is whether this cause is against the principle of lis pendens and therefore sub-judice, the second is whether the petition is res judicata, and the third is whether the cause is statutorily time barred by virtue of section 4 of the Limitation of Actions Act and section 90 of the Employment Act.

28. On the first issue, there are no pleadings or materials placed before this court in demonstrating that indeed Nakuru ELRC No 76 of 2013 concerned the same parties as those in this petition who were litigating over the same subject matter, and that the cause was heard and determined by a court of competent jurisdiction with finality. Likewise, there are no materials placed before this court illustrating that Nakuru ELRC No E015 of 2020 is still pending in court and that the subject matter thereof is the same as that in this petition and the parties therein are the same as those in this petition and or parties claiming under them or on their behalf.

29. In view of the foregoing paragraph, the respondent is discreetly calling upon this court to go out of its way and investigate the two causes to determine if the subject matter is the same and if the parties are the same. The petitioners have vehemently denied, in the submissions by their counsel, that the two causes and this petition relate to the same subject matter and or that the parties are the same. This leaves the facts contested and the POas raised by the respondent fails to meet the threshold of a proper PO as enunciated in Mukhisa Biscuits case (Supra), a leading authority on what constitutes a proper PO.

30. As stated elsewhere the respondent and the interested parties have not filed their responses to the petition and no documents have been filed by them which this court could have made reference to in ascertaining the allegations made by the respondent in the submissions in support of the PO, which facts, in any event, are vigorously contested by the petitioners in submissions by their counsel.

31. In the foregoing circumstances, this court cannot ascertain whether this cause is either lis pendens, Sub-judice, or res judicatawithout calling for evidence. The PO is hence premature and improperly grounded and this court so holds and hence the two first grounds of the POshall fail.

32. On the third issue of this petition being statutorily time barred, the petitioners, deliberately or otherwise, have not disclosed in the petition when they were terminated or dismissed by the respondent. Of course, this is a serious omission in the pleadings and leaves a gaping hole in the petition affecting the merits thereof. However, the respondent and the interested parties have not filed their responses to the petition, as at the time of this court rendering this ruling, making it difficult for the court to ascertain if the claims and prayers in this petition are indeed time barred. Counsel for the petitioners, without any elaboration or support, has submitted that there is no time limitation for constitutional petitions. Counsel for the respondent did not address this germane issue.

33. This court is not willing to deal with the foregoing issue at this juncture and, albeit suo motto, make a ruling without allowing counsel for both parties to fully address the same in due course after fully establishing the fact as to when the petitioners were terminated or dismissed and therefore when the cause of action arose. This ground must therefore fail as well as the facts are not disclosed and the respondent and the interested parties have not responded to the petition to enable the court determine if the fact of when the cause of action arose is contested or not.

34. For the foregoing reasons, all the three grounds upon which the POis founded shall fail at this stage. However, this does not mean that a proper PO may not be appropriately raised upon materials and uncontested facts being established, bearing in mind that a PO can only succeed upon points of law as applied on admitted and or uncontested facts.

V. Costs 35. Ordinarily, costs follow event. However, this court observes that the POherein has been raised prematurely and hence it is difficult to establish and consider all factors that may apply had the PObeen raised with all the materials placed before court and facts settled on what is admitted and what is contested. For the foregoing reasons, this court orders that the costs be in cause.

VI. Orders 36. Flowing from the foregoing, in regard to the preliminary objection by the respondent as contained in the notice dated February 22, 2022 this court makes the following orders –a.The said entire POis dismissed with costs in the cause.b.The respondent and the interested parties are ordered to file and serve their responses and other materials in reply to the petition within 14 days of this ruling.

DATED, DELIVERED VIRTUALLY, AND SIGNED AT NAKURU THIS 2NDDAY OF FEBRURY, 2023. .................................DAVID NDERITUJUDGE