https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1499

Kenya Engineering Workers Union v Elite Lodgit Limited & another (Cause E485 of 2025) [2026] KEELRC 1499 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1499 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E485 of 2025 HS Wasilwa, J June 2, 2026 Between Kenya Engineering Workers Union Claimant and Elite Lodgit Limited 1st Respondent Ashut Engineers Limited 2nd Respondent Ruling 1.The 2nd Respondent filed a Notice of Preliminary Objection dated 27th October 2025, raising a preliminary objection to be heard and decided in limine on the grounds that: -1.That the memorandum of claim dated 28 May 2025 is sub judice and amounts to forum shopping since the issues raised are also the same issues pending determination before the High Court, ELRC Division in the case of:- ELRC No. E655 of 2024- Kenya Engineering Workers Union -Vs- Ashut Engineering Ltd;2.That the 1st Respondent is not aware that the Claimant has recruited members from amongst its employees, and if so, the Claimant has not achieved a simple majority of the unionisable employees in the employment of the 1st Respondent to qualify for such recognition as per Section 54 of the Labour Relations Act, 2007;3.That the 1st Respondent and the Claimant are strangers as they do not have neither a Recognition Agreement nor a Collective Bargaining Agreement to govern the terms of engagement between them as per Section 57 and 59 of the Labour Relations Act, 2007;4.That in view of the provisions above and the fact that Grievants Felix Ngano; Benson Nzioka and Stephen Onyango are not its employees the 2nd Respondent is improperly joined in these proceedings; and5.That the memorandum of claim dated 28th May 2025 is an abuse of court process.6.That in view of provisions above the suit cannot be maintained and should be dismissed with costs. Claimant’s Case 2.In opposition to the 2nd Respondent’s preliminary objection, the Claimant filed Grounds of Opposition dated 6th March 2026 on these grounds:1.A Preliminary Objection should only be on point of law that do not need evidence.2.The issue in dispute in cause No. E655 of 2024 is violation of the Collective Bargaining Agreement and Recognition Agreement by outsourcing of core business and underpayment while the issue in the current suit is unlawful, unfair, and unprocedural redundancy of Messrs Felix Ngano, Benson Njoki and Stephen Onyango on account of trade union affiliation and/or activities hence not similar.3.The Recognition Agreement is solely for Collective Bargaining Agreement (CBA) negotiations and not representation in line with section 54 of the Labour Relations Act, 2007.4.The joinder of the 2nd Respondent is in line with Section 54 of the Labour Institutions Act, 2007. 2nd Respondent’s submissions 3.The 2nd Respondent submitted that the Preliminary Objection before the Court met the threshold established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, which are whether the preliminary objection raises a pure point of law, that there is a demonstration that all the facts pleaded by the other side are correct and that there is no fact that needs to be ascertained. 4.The 2nd Respondent submitted that the issues for determination are: whether there exists an employer–employee relationship between the Claimant's members and the 2nd Respondent; and whether the suit herein is sub judice and ought to be stayed. 5.On the first issue, the 2nd Respondent submitted that whereas the Claimant avers that its unionisable members are employees of the 2nd Respondent, its position is that the said members are employees of the 1st Respondent who were seconded to the 2nd Respondent under an outsourcing contract. 6.It was submitted that the three grievants entered into contracts of employment with the 1st Respondent as affirmed by their resignation letters addressed to the 1st Respondent. 7.It was submitted that Clause 2 of the contracts between the grievants and the 1st Respondent provided:“You shall be employed as a welder trainee. You will be deployed to serve at our clients - Ashut Engineering during your contractual engagement. However, the company has a right to post you with any of its other clients based on business need......”The 2nd Respondent argued that this provision confirms that the grievants were employees of the 1st Respondent who were deployed to work at Ashut Engineering. 8.The 2nd Respondent submitted that the Memorandum of Agreement produced by the Claimant is between the Claimant and the 2nd Respondent and applies only to employees of the 2nd Respondent and not employees of the 1st Respondent. 9.It is the 2nd Respondent’s submission that its role, if any, in relation to the grievants was limited to granting them access to its premises. The 1st Respondent retained control over its employees, including matters relating to recruitment, disciplinary procedures and general management. Therefore, the 2nd Respondent had no control over the employees of the 1st Respondent. 10.The 2nd Respondent submitted that in Abyssinia Iron & Steel Limited v Kenya Engineering Workers Union [2016] eKLR, the Court of Appeal dealt with a labour outsourcing arrangement, and submitted that the principles in that decision demonstrate that no employer–employee relationship existed between the 2nd Respondent and the grievants herein. 11.The 2nd Respondent therefore submitted that there was no employer–employee relationship between it and the Claimant's members and that any such relationship existed between the grievants and the 1st Respondent. It urged the Court to find that it was improperly joined to these proceedings and to strike it out from the suit. 12.On sub judice, the 2nd Respondent submitted that the present claim ought to be stayed. It argued that a comparison of the Memorandum of Claim filed herein and the Memorandum of Claim in ELRC Cause No. E655 of 2024, Kenya Engineering Workers Union v Ashut Engineering Ltd reveals that the grievants, namely Felix Ngano, Benson Nzioka and Stephen Onyango, are the aggrieved parties in both suits. Thus, the disputes relate to the same issues and that substantially similar reliefs have been sought in both matters. 13.The 2nd Respondent submitted that allowing both suits to proceed would occasion prejudice to it if both matters were heard and determined concurrently by the same Court. 14.It is the 2nd Respondent’s submission that filing of the present suit while ELRC Cause No. E655 of 2024, Kenya Engineering Workers Union v Ashut Engineering Ltd is pending amounts to forum shopping since the issues raised herein are similar to those raised in the earlier suit. The Court was informed that the said matter is scheduled for hearing on 8th June 2026. 15.In support of its submissions, the 2nd Respondent relied on Joel Kenduiywo v District Criminal Investigation Officer Nandi & 4 others [2019] eKLR, where the Court of Appeal held that:“Section 6 of the Civil Procedure Act is meant to prevent abuse of the court process where parallel proceedings are held before two different courts with concurrent jurisdictions or before the same court at different times. This is to obviate a situation where two courts of concurrent jurisdiction arrive at different decisions on the same facts evidence and cause of action.” It also relied on Abdulkadir A Khalif v Principal Secretary Ministry of Lands & Physical Planning & 4 others; National Land Commission & another (Interested Parties) [2020] eKLR, wherein it was held:“Having found that the appellant’s petition is not res judicata, but that it is sub judice, we find it appropriate to apply Section 6 of the Civil Procedure Act to stay the appellant’s petition so that the issues raised by the appellant can be fully addressed and resolved in the Eldoret petition, as it was the one initiated first." 16.The 2nd Respondent therefore submitted that the present claim is an abuse of the court process and ought to be stayed pending the hearing and determination of ELRC Cause No. E655 of 2024, Kenya Engineering Workers Union v Ashut Engineering Ltd. 1st Respondent’s Submissions 17.On sub judice, the 1st Respondent submitted that the matter falls within the ambit of Section 6 of the Civil Procedure Act, which provides:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title...” 18.The 1st Respondent submitted that there exists a previously instituted suit, ELRC Cause No. E655 of 2024, Kenya Engineering Workers Union v Ashut Engineering Limited & Elite Lodgit Limited, which was filed before the present claim. 19.It was submitted that the parties in both suits are similar and that the Claimant approached the Employment and Labour Relations Court in both matters, being the Court with the requisite jurisdiction to determine the dispute. 20.The 1st Respondent further submitted that the earlier suit has substantially progressed and is pending hearing on 8th June 2026. Further, an examination of the pleadings in both matters reveals that the subject matter in issue is similar. 21.The 1st Respondent therefore submitted that the criteria for the application of the doctrine of sub judice have been satisfied. It urged the Court to stay the present suit pending the hearing and determination of the previously instituted matter. Claimant’s Submissions 22.The Claimant submitted on four issues: whether a Recognition Agreement and a Collective Bargaining Agreement are requisite conditions for representation of members in Court by a trade union; whether the matter is res judicata; whether the 2nd Respondent is improperly joined in the proceedings; and whether the application is merited. 23.On the first issue, the Claimant submitted that the sole purpose of a Recognition Agreement is negotiation of a Collective Bargaining Agreement in line with Section 54 of the Labour Relations Act, 2007, which provides that:“An employer, including an employer in the public sector, shall recognise a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionisable employees.”This position has been upheld by this Court in various decisions and further upheld by the Court of Appeal in Modern Soap Factory v Kenya Shoe and Leather Workers Union [2020] eKLR. 24.On res judicata, the Claimant submitted that the dispute in the present matter concerns the unfair, unlawful and/or un-procedural redundancy of the three grievants whereas the dispute in ELRC Cause No. E655 of 2024 concerns violation of a Collective Bargaining Agreement, underpayment and outsourcing of core business. Therefore, the issues in the two matters are distinct. 25.On the third issue, the Claimant submitted that the 2nd Respondent is properly before Court pursuant to Section 54(1) of the Labour Institutions Act, 2007, which provides:“Where the immediate employer of an employee is himself in the employment of another person and is for the purposes of this Part deemed to be the employer of that employee jointly with the immediate employer.” 26.The Claimant submitted that the issues raised in the application can only be determined upon a full hearing and production of evidence as held in Kenya Engineering Workers Union v Moral Business Consulting [2026] KEELRC 300 (KLR). 27.On the final issue, the Claimant submitted that a Preliminary Objection must be based on points of law and not facts that require evidence as in the current application. The Claimant therefore urged the Court to dismiss the Preliminary Objection. 28.I have considered the averments of the applicant and respondent herein. The applicant sought orders to strike out the claim averring that it is similar to another. The claimant has pointed out that the issues in the matter claimed to be similar are different. 29.In considering this preliminary objection, I note that for this court to determine the application this court will delve into factual issues which go beyond the purview of the Mukhisa biscuit case. 30.I therefore find that the preliminary objection cannot be resolved within this application and is therefore declined. The applicant is free to raise these issues within the main cause. Costs shall be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF JUNE, 2026.HELLEN WASILWAJUDGE