Kenya Union of Special & Professional Guards v Securex Agencies Limited & another (Cause E816 of 2025) [2026] KEELRC 1658 (KLR) (18 June 2026) (Ruling)

Kenya Union of Special & Professional Guards v Securex Agencies Limited & another (Cause E816 of 2025) [2026] KEELRC 1658 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1658 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E816 of 2025 CN Baari, J June 18, 2026 Between Kenya Union of Special & Professional Guards Claimant and Securex Agencies Limited Respondent and Kenya National Private Security Workers Union Interested Party Ruling 1.Before Court is the Claimant/Applicant’s Motion applications dated 8th November, 2025 and 25th November, 2025. In the first application dated 8th November, 2025, which is brought pursuant to Section 3 and 12(3)(viii) of the Employment and Labour Relations Court Act, Order 2 Rule 15 of the Civil Procedure Rules, 2010, Rule 47 of the ELRC Procedure Rules, 2024, the Claimant/Applicant seeks orders:-i.Spentii.That the Statement of Defense and Counterclaim, both dated 6th November 2025, as filed by the Interested Party, be struck out in entirety from these proceedings.iii.That the Counterclaim dated 6th November 2025, as raised by the Interested Party, be struck out from these proceedingsiv.That the Interested Party Union be barred from participating as a principal party (Respondent) in these proceedings, having been joined merely as an interested party.v.That the Interested Party Union to remain enjoined in these proceedings purely as an interested party with minimal and/or limited rights in these proceedings.vi.That the dispute against the Respondent does proceed for hearing on the main claim against the Respondent as filed by the Claimant.vii.That the costs of this application be borne by the Interested Party. 2.The application is supported by grounds on the face and the supporting affidavit of Samson Omechi Ong’era sworn on 8th November, 2025. 3.The Applicant contends that the Interested Party’s Statement of Defence and Counterclaim dated 6th November 2025 are incompetent, misconceived, frivolous, vexatious, scandalous, bad in law, and constitutes an abuse of the court process. It contends that the Interested Party lacks the requisite locus standi to file a substantive defence or institute a counterclaim, having been joined in the proceedings solely as an Interested Party rather than as a Respondent in the suit. 4.It is the Applicant’s further position that the Statement of Defence and Counterclaim contravene Rule 29 of the Employment and Labour Relations Court (Procedure) Rules and Order 7 Rules 1 and 3 of the Civil Procedure Rules, 2010, rendering the pleadings defective, and the Counterclaim is legally untenable as the issues raised are allegedly caught by the doctrines of res judicata and sub judice. 5.The Applicant further contends that the Interested Party’s Statement of Defence and Counterclaim are procedurally and legally defective, having been filed by a party lacking the requisite standing to mount a substantive defence or counterclaim. 6.The Applicant argues that the pleadings raise matters unrelated to the claim, contravene the Employment and Labour Relations Court Rules and the Labour Relations Act, and are unsupported by evidence of employee representation, union membership, or recognition. 7.The Applicant maintains that the Counterclaim is barred by the doctrines of res judicata and sub judice, is intended to interfere with the Claimant’s enforcement of its representational rights, and has been brought solely to delay, frustrate, and divert the Court from determining the main dispute concerning the deduction and remittance of union dues. 8.The Applicant further argues that the Interested Party’s Statement of Defence and Counterclaim disclose no reasonable cause of action and should therefore be struck out with costs. It avers that striking out the pleadings would serve the interests of justice, fair play, and the proper administration of justice, particularly because the issues raised are either already settled or pending determination elsewhere. 9.The Applicant contends that allowing the pleadings to stand would prejudice the Claimant by subjecting it to repeated litigation, unnecessary expense, and continued frustration resulting the Interested Party’s conduct as a serial litigator. The Court is urged to exercise its inherent jurisdiction and constitutional mandate under Articles 159(2) and 259 of the Constitution to protect litigants from abusive and repetitive litigation. 10.The Applicant finally asserts that the application was filed promptly and presents a deserving case for the reliefs sought. 11.The application was opposed by a Replying Affidavit sworn by Isaac G.M.Andabwa on 19th November, 2025. The Interested Party contends that pleadings may only be struck out where they are hopeless, incapable of amendment, and disclose no triable issue. It further argues that Rule 29(2)(g) of the Employment and Labour Relations Court (Procedure) Rules expressly permits the filing of a counterclaim as part of a response to a claim, rendering the impugned Counterclaim procedurally proper. 12.The Interested Party also maintains that the issues raised in the Counterclaim were introduced by the Claimant itself, particularly through the production of a conciliator’s report and reference to Notice No. 1 of 2025 in its bundle of documents. Consequently, the Interested Party asserts that its challenge to the validity of the report and related orders does not constitute the introduction of extraneous matters, nor is it frivolous or vexatious, but rather amounts to a legitimate response to issues already placed before the Court by the Claimant. 13.The Interested Party further denies that its Counterclaim is barred by the doctrine of res judicata. It argues that the matters challenged in its pleadings, namely Legal Notice No. 1 of 2025 published on 17 January 2025 and the conciliator’s report issued on 21 August 2025, arose long after the determination of earlier suits, including Nairobi ELRCA No. 9 of 2014, Nairobi ELRCA No. 9 of 2018, and Kisumu ELRCA No. 5 of 2020. It further avers that those proceedings could not have adjudicated the issues now raised in the Counterclaim. 14.The Interested Party further contends that even in Nairobi ELRC Petition No. E140 of 2024, the issues before the Court were limited to the legality of the appointment of Ann Kagwiria as Acting Registrar of Trade Unions and the registration of the Kenya Union of Special and Professional Guards, while Kisumu ELRCA No. 5 of 2020 concerned the registration of the said union. According to the Interested Party, its Counterclaim does not seek to re-litigate those matters but instead challenges distinct issues arising from the subsequent Legal Notice and conciliator’s report. 15.It therefore maintains that neither the doctrines of res judicata nor sub judice are applicable to its pleadings. 16.The Interested Party further points out that the Claimant has instituted several other proceedings involving similar issues relating to the deduction and remittance of union dues, namely; ELRC Cause No. 828 of 2025 – Kenya Union of Special and Professional Guards (KUSPROG) v G4S Kenya Limited; ELRC Cause No. E491 of 2025 – Kenya Union of Special and Professional Guards (KUSPROG) v Nine One One; and ELRC Cause No. E724 of 2025 – Kenya Union of Special and Professional Guards (KUSPROG) v GardaWorld Security (Kenya) Limited. 17.The Interested Party states that it relies on these suits to demonstrate that disputes concerning union dues remittance involving the Claimant are the subject of multiple ongoing proceedings. 18.It is the Interested Party's position that it opposes the striking-out application on the ground that its Defence and Counterclaim raise legitimate and substantive issues concerning union representation, recognition, and entitlement to union dues within the private security sector. It argues that the matters pleaded are not barred by res judicata or sub judice, arise directly from issues introduced by the Claimant, and disclose triable questions requiring judicial determination. The Interested Party further contends that similar disputes are pending in several related suits involving common questions of law and fact, making consolidation a more appropriate course than striking out. 19.It therefore maintains that its pleadings are procedurally proper, legally sustainable, and necessary for the comprehensive resolution of the dispute between the parties. 20.The Interested Party further contends that the dispute raises several substantive and triable issues that cannot be determined summarily. It maintains that the affected private security firms have consistently asserted that they are already bound by Recognition Agreements and Collective Bargaining Agreements with the Interested Party, thereby placing the question of union representation squarely in issue. It also asserts that the authenticity of signatures appearing on the check-off forms is under challenge, with allegations of forgery having been reported to the Directorate of Criminal Investigations and supported by affidavits from the complainants. 21.The Interested Party further avers that the validity of Legal Notice No. 1 of 2025, the conciliation process and report, the legitimacy of the check-off forms, and the alleged overlap between the bargaining units represented by the competing unions are all contested matters requiring a full hearing. It argues that because the impugned Legal Notice and conciliation reports were authored by government officials, any challenge to their legality necessarily involves the Attorney General as a necessary party. It therefore submits that ELRC Cause No. 855 of 2025, which includes the Attorney General and all relevant stakeholders, provides the most comprehensive forum for resolving the dispute. 22.The Interested Party finally contends that its Defence and Counterclaim are lawful, constitutionally protected, and raise substantial triable issues relating to union recognition, representation, deduction and remittance of union dues, the validity of Legal Notice No. 1 of 2025, the conciliation process, and the authenticity of check-off forms. It maintains that these matters are neither frivolous nor barred by res judicata or sub judice and should be determined on their merits. The Interested Party further argues that the numerous related suits filed by the Claimant demonstrate the need for consolidation, particularly around ELRC Cause No. 855 of 2025, which it considers the most comprehensive proceeding. Consequently, it urges the Court to reject the application to strike out its pleadings and permit the dispute to proceed to full. 23.The Claimant/Applicant’s second application is one dated 25th November, 2025, brough pursuant to Articles 41, 159, of the Constitution of Kenya, Sections 3 and 12 of the Employment and Labour Relations Court Act, Rule 47 of ELRC (Procedure) Rules, 2024, Sections 48, 50 and 82 of the Labour Relations Act, 2007, and Order 40 Rule 3 of the Civil Procedure Rules. Under this application, the Claimant/Applicant seeks the following remedies:-i.Spentii.That this Hon Court be pleased to find and hold that the Respondent has not complied with valid orders of this court granted on 24/9/2025 and 7/10/2025, requiring the Respondent to deduct and deposit such union dues in a suspense account pending the hearing and determination of this Cause/Suit.iii.That this Hon Court be pleased to find and hold that the Respondent, together with its Directors and Officers responsible for Human Resource and Payroll administration, are in contempt of the Court Orders granted on 24/9/2025 and 7/10/2025, directing the Respondent to deduct union dues from members of the Claimant and deposit the same into a suspense account pending the hearing and determination of this Cause/Suit.iv.That this Honourable Court do issue an order citing the 1st & 2nd Contemnors of having wilfully disobeyed this Court’s Orders granted on 24/9/2025 and 7/10/2025.v.That upon citation, the contemnors be ordered to show cause why they should not be committed to civil jail for a term of six (6) months and/or be condemned to pay such fines as the Court may deem fit.vi.That Respondent be ordered/directed to pay and deposit into the suspense account monies equivalent to union dues supposedly been deducted and deposited to such suspense account for the months of September and October 2025 from her own pocket.vii.That Respondent be ordered/directed to share with the Claimant monthly remittance of union dues/suspense account advice/schedule containing details of Claimant members and deductions, not later than the 10th day of each calendar month. 24.The application is supported by the grounds on the face of the motion and the affidavit of Samson Omechi Ong’era, sworn on 25th November, 2025. 25.The Claimant contends that despite clear court orders issued on 24th September 2025 and 7th October 2025 directing the Respondent to deduct union dues from employees who are members of the Claimant union and to deposit the same into a suspense account pending determination of the suit, the Respondent has failed to comply. The Claimant asserts that although the Respondent’s advocate has repeatedly informed the Court that the orders are being implemented, the payslips in its possession demonstrate otherwise. 26.The Claimant further avers that the Respondent has knowingly, deliberately, and persistently disobeyed the court orders, thereby frustrating the administration of justice and undermining the authority, dignity, and integrity of the Court. The Claimant emphasizes that compliance with court orders is mandatory and not optional, and urges the Court to exercise its contempt jurisdiction by citing and punishing the Respondent and the named contemnors for willful disobedience of lawful court directives. 27.The Claimant further submits that the Court has a constitutional and inherent duty under Articles 159(2) and 259 of the Constitution to safeguard its authority and ensure compliance with its orders. It argues that the Respondent’s alleged disobedience amounts to an abuse of the court process and undermines the rule of law, thereby warranting the Court’s intervention through its contempt jurisdiction. 28.The Claimant maintains that the application was filed promptly and without undue delay and that sufficient grounds have been established for the Court to cite and punish the Respondent and the alleged contemnors for willful disobedience of the Court’s orders. 29.The Respondent opposed the Motion vide a Replying Affidavit sworn on 23rd January, 2026 by one Isaiah Kimani. 30.The Respondent opposes the contempt application, arguing that it is founded on material non-disclosure and should be dismissed at the outset. The Respondent denies having wilfully or deliberately disobeyed the court orders issued on 24th September 2025 and 7th October 2025, maintaining that it has acted in compliance with those directives. 31.The Respondent states that, upon receipt of the orders requiring deduction and deposit of union dues into a suspense account, it encountered difficulties identifying the affected employees because the forms supplied by the Claimant were illegible, and that to facilitate compliance, the Respondent, through its advocates, requested a clearer electronic list of the employees concerned. 32.It is the Respondent’s case that although the Claimant subsequently provided an Excel spreadsheet containing 563 names, the Respondent states that the list lacked essential identifiers such as national identity card numbers or employee numbers, making verification within its employment records difficult. 33.The Respondent nevertheless maintains that it continued deducting union dues at the prescribed rate of 2% of basic salary together with the applicable COTU levy from employees, with such deductions reflected in payslips under the heading “Union Deduction.” It contends further that the payslips do not distinguish whether the deductions relate to the Claimant or the Interested Party and therefore cannot be relied upon as evidence of non-compliance with the court orders. The Respondent asserts that the allegations of contempt are unfounded and unsupported by the facts. 34.The Respondent further maintains that it has fully complied with the court orders of 24th September 2025 and 7th October 2025. The Respondent states that it established a suspense account and deposited union dues relating to the 563 employees identified by the Claimant for the months of October, November, and December 2025. 35.The Respondent further undertakes to remit the accumulated funds to whichever party the Court ultimately determines is entitled to receive them and, where necessary, refund any excess deductions to affected employees. 36.The Respondent argues that the Claimant has failed to establish the essential elements of contempt, particularly wilful and deliberate disobedience of a clear court order. According to the Respondent, the evidence relied upon by the Claimant actually demonstrates that deductions were made as directed, while no evidence has been produced to show that the suspense account was not established or that the Respondent failed to deposit the deducted sums. 37.The Respondent therefore contends that no specific breach of the court orders has been identified or proved. 38.Consequently, the Respondent characterizes the contempt application as defective, frivolous, vexatious, and an abuse of the court process, and urges the Court to dismiss it with costs. 39.Parties' submissions were received and have been duly considered. Analysis and Determination 40.The two applications raise the following issues for determination:-i.Whether the Interested Party's Statement of Defence and Counterclaim dated 6th November 2025 should be struck out.ii.Whether the Interested Party, as ‘an Interested Party’, is entitled to file a substantive Defence and Counterclaim.iii.Whether the Counterclaim is barred by the doctrines of res judicata or sub judice.iv.Whether the Respondent is in contempt of the Court orders issued on 24th September 2025 and 7th October 2025. Whether the Defence and Counterclaim should be struck out 41.The law on striking out pleadings is settled. The power is draconian and ought to be exercised sparingly and only in the clearest of cases. In DT Dobie & Company (Kenya) Ltd v Muchina[1980] KECA 3 (KLR), the Court of Appeal held that no suit should be summarily dismissed unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action and is beyond redemption by amendment. 42.Similarly, in Blue Shield Insurance Co. Ltd v Joseph Mboya Oguttu [2009] KECA 221 (KLR), the Court emphasized that where a pleading raises even a single bona fide triable issue, the matter ought to proceed to hearing. 43.The Claimant argues that the Interested Party lacks locus standi, that the Counterclaim is frivolous, and that the issues raised are extraneous. A review of the pleadings, however, reveals that the Interested Party challenges entitlement to union dues, the validity of Legal Notice No. 1 of 2025, the validity of the conciliation process, and the report arising from the conciliation process, the authenticity of check-off forms, the overlap of bargaining units and competing recognition agreements, and the CBAs. 44.These are no doubt substantive questions directly connected with the dispute concerning deduction and remittance of union dues, and which the Court cannot at this interlocutory stage conclude as being frivolous or incapable of determination through evidence. 45.Accordingly, I find and hold that the Applicant has not met the threshold in DT Dobie to warrant the striking out of the Interested Party’s pleadings. Whether an Interested Party can file a Defence and Counterclaim 46.The Claimant's position is that an Interested Party cannot transform itself into a Respondent. The Supreme Court in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] KESC 6 (KLR), held that an Interested Party participates in proceedings to protect an identifiable stake or legal interest in the subject matter. 47.As correctly submitted by the Applicant, an Interested Party is not a principal litigant in a suit, and cannot introduce an entirely new cause of action unrelated to the main dispute. 48.To start with, Rule 29(2)(g) of the Employment and Labour Relations Court (Procedure) Rules expressly recognizes a counterclaim as part of a response to the Statement of Claim. Further, Rule 40(7) permits persons affected by orders or directions of the Court to participate in proceedings. 49.The Court also notes that the orders sought by the Claimant concern union dues allegedly payable by employees whose representation is contested by the Interested Party. The Interested Party, therefore, has a direct and identifiable legal interest in the outcome of the suit herein, and is the reason it was joined to the suit in the very first place. 50.In my view, whether the Counterclaim ultimately succeeds is a matter for trial. At this stage, the Court is only concerned with whether it raises arguable issues, and I find that it does raise issues sufficiently connected to the main dispute as to justify hearing them alongside the Claimant’s claim. Whether the Counterclaim is res judicata or sub judice 51.The doctrine of res judicata is codified under Section 7 of the Civil Procedure Act. The Supreme Court in Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] KECA 477 (KLR), identified the elements of res judicata as the identity of the parties, the identity of the subject matter, the identity of the issues, and a final determination by a competent court. 52.The Interested Party's challenge concerns Legal Notice No. 1 of 2025 and a conciliator's report issued in August 2025. From the material placed before the Court, those instruments post date Nairobi ELRCA No. 9 of 2014, Nairobi ELRCA No. 9 of 2018, and Kisumu ELRCA No. 5 of 2020. 53.In my considered view, those earlier matters could not have conclusively determined issues arising from instruments that did not yet exist. Similarly, no sufficient material has been presented demonstrating that the specific issues raised in the Counterclaim are directly and substantially in issue in another pending suit so as to attract Section 6 of the Civil Procedure Act. 54.I conclude by holding that the pleas of res judicata and sub judice cannot be conclusively determined at this interlocutory stage and do not justify striking out the Counterclaim. Whether the Respondent is in contempt of Court 55.To succeed in contempt proceedings, an applicant must establish the existence of a clear and unambiguous order, knowledge of the order by the alleged contemnor, breach of the order, and wilful and deliberate disobedience. 56.The first two elements are undisputed. The orders of 24th September 2025 and 7th October 2025 were clear, and the Respondent was aware of them. The dispute thus concerns whether or not there is wilful breach. 57.The Respondent has exhibited evidence showing that it requested clarification of employee details, that it received a list of 563 names, that it continued making deductions, that it established a suspense account, and that the monies for October, November, and December 2025 were deposited therein. 58.The Claimant relies primarily on payslips, which, according to the Respondent, merely show deductions and do not demonstrate whether deposits into the suspense account were made. 59.Contempt proceedings are quasi-criminal in nature and require a higher standard of proof than ordinary civil claims. In Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR), the Court held that contempt must be proved to a standard higher than a balance of probabilities. 60.The evidence presently before the court does not conclusively establish deliberate and wilful disobedience. At most, it demonstrates a dispute regarding the extent and manner of compliance. 61.Further, where a party presents evidence of substantial compliance and steps taken to implement orders, a finding of contempt is inappropriate unless deliberate defiance is clearly demonstrated. 62.In whole, I reach the following conclusions on the two Motion applications: -a.That the Motion dated 8th November 2025 seeking to strike out the Interested Party's Statement of Defence and Counterclaim is dismissed.b.That the Motion dated 25th November 2025 seeking contempt orders is declined for failure to prove wilful disobedience to the requisite standard.c.That the Respondent shall, however, continue maintaining and updating the suspense account and shall file, within 30 days of this order, a statement of account showing all deductions and deposits made pursuant to the orders of 24th September 2025 and 7th October 2025.d.The costs of both applications shall abide the outcome of the main suit. 63.It is so ordered. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 18TH DAY OF JUNE, 2026.C. N. BAARIJUDGEAppearance:Mr. Ong’era present for the Claimant/ApplicantMr. Kaula present for the RespondentMs. Esther S-CA.