https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1437

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI** **CAUSE NO. E1249 OF 2025** **KENYA UNION OF SPECIAL &** **PROFESSIONAL WORKERS GUARDS ……………………………....CLAIMANT** **VERSUS** **GARDAWORLD SECURITY (K) LTD & 2 OTHERS…………….RESPONDENT** **RULING** 1. Before Court is the 2nd Respondent’s Notice of Preliminary Objection dated 16th December, 2025, wherein it contends that the Claimant has filed *Nairobi ELRC No. E828 of 2025, Kenya Union of Special and Professional Guards v G4S Security Services (K) Limited*, seeking, among other orders, deduction and remittance of union dues from employees alleged to be union members. It avers further that the issues of union dues and agency fees raised in the present matter are directly and substantially the same as those pending in Nairobi ELRC No. E828 of 2025, involving the same parties. 2. The 2nd Respondent argues that the issues are closely interconnected and therefore the current suit is *sub judice,* and for which reason the Court lacks jurisdiction to hear and determine the appeal and application, and urges that the claim against it be struck out with costs. 3. Parties canvassed the Preliminary Objection by way of written submissions. **The 2nd Respondent’s Submissions** 1. The 2nd Respondent submits that its Preliminary Objection is based on the doctrine of sub judice, arguing that the issues in this suit are directly and substantially similar to those in Nairobi ELRC No. E828 of 2025, ***Kenya Union of Special and Professional Guards v G4S Security Services (K) Limited***, which is still pending. Relying on ***Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696,*** the Respondent submits that the objection raises a pure point of law under Section 6 of the Civil Procedure Act, requiring only a comparison of pleadings in the two suits. It contends that, if upheld, the objection would dispose of the suit against the 2nd Respondent. 2. It submits further that Section 6 of the Civil Procedure Act bars a court from proceeding with a suit where the issues in dispute are directly and substantially the same as those in a previously instituted suit between the same parties, or parties litigating under the same title, pending before a competent court in Kenya capable of granting the relief sought. 3. It placed reliance in ***Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others [2020] KESC 54 (KLR)****,* where the Supreme Court explained that the doctrine of sub judice is intended to prevent multiplicity of suits, avoid abuse of the court process, and guard against conflicting decisions by courts of competent jurisdiction over the same subject matter. The Court further stated that, for the doctrine to apply, a party must demonstrate that there are multiple suits involving the same subject matter; that the earlier suit was filed first; that both suits are pending before competent courts, and that the suits involve the same parties or their representatives. 4. The 2nd Respondent submits that it has satisfied all the elements necessary to invoke the doctrine of sub judice. It argues that, on the first requirement, there are two suits involving the same subject matter, namely, Nairobi ELRC No. E828 of 2025 and the present suit, both matters arise from the employment relationship between the Kenya Union of Special and Professional Guards and G4S Security Services (K) Limited, and concern deductions payable from employees’ salaries. 5. The Respondent further contends that in ELRC No. E828 of 2025, the issue of agency fees was expressly raised as a defence to the claim for union dues. The 2nd Respondent further submits that the issue of agency fees is expressly pleaded in Nairobi ELRC No. E828 of 2025, and it points to paragraph 16(b) of the affidavit of Helgah Kimanani, where G4S Security Services (K) Limited identified for determination the effect of Legal Notice No. 139 of 2021 requiring deduction of agency fees for non-members of the Kenya National Private Security Workers Union. 6. The Respondent states that it also raised concerns regarding possible double deductions, conflicting obligations arising from remittance of dues to both unions, and whether two unions can represent the same category of employees. It therefore argues that the issue of agency fees is already substantially before the court in ELRC No. E828 of 2025. 7. The 2nd Respondent argues that both the present suit and Nairobi ELRC No. E828 of 2025 arise from the same employment relationship and concern the legality of deductions from employees’ salaries. It contends that the issues of union dues and agency fees are inseparable, as both relate to which union is entitled to deductions and under what authority. The Respondent further relies on the ruling of 18th December 2025 in ELRC No. E828 of 2025, where the Court ordered G4S Security Services (K) Limited to commence deduction and remittance of union dues to the Kenya Union of Special and Professional Guards, demonstrating that the issues are interconnected and already before the court in the earlier suit. 8. The 2nd Respondent further submits that the issue of agency fees under Legal Notice No. 139 of 2021 is still pending in ELRC No. E828 of 2025, and has not been finally determined. It argues that allowing the present suit to proceed risks conflicting decisions on the same issue between the same parties. 9. It further submits that E828 of 2025 was filed earlier than the present suit, both matters are before the Employment and Labour Relations Court, and the parties, Kenya Union of Special and Professional Guards and G4S Security Services (K) Limited, are essentially the same. 10. In the circumstances, it urges the Court to uphold the sub judice objection and strike out the present suit against the 2nd Respondent with costs. **The Claimant’s Submissions** 1. The Claimant Union argues that the 2nd Respondent’s Preliminary Objection is misconceived, frivolous, and an abuse of the court process aimed at delaying the hearing of the current dispute.It contends that the issues in the present suit are distinct from those in Nairobi ELRC No. E828 of 2025, Kenya Union of Special and Professional Guards v G4S Security Services (K) Limited, and therefore the doctrine of sub judice does not apply. 2. The Claimant also submits that the Preliminary Objection fails to meet the legal threshold of a proper preliminary objection in law and should therefore be dismissed or struck out with costs. 3. The Claimant submits that ELRC No. E828 of 2025 is strictly about enforcement of Section 48 of the Labour Relations Act, following the Employer’s failure to implement check-off forms for deduction and remittance of union dues after conciliation failed. It argues that the Court has already determined the interlocutory issues, confirming that the dispute is narrow, statutory, and limited to Section 48 compliance, and that those rulings remain unchallenged. 4. The Union therefore maintains that the 2nd Respondent is wrongly attempting to expand or reframe a settled issue through affidavit evidence, and that the core dispute has already been defined by the pleadings and court rulings. 5. The Claimant submits that in ELRC No. E828 of 2025, it seeks final orders declaring the Employer’s failure to deduct and remit union dues unlawful and compelling immediate implementation of check-off deductions under Section 48(3) of the Labour Relations Act. It also seeks orders for accounting and remittance of withheld dues, general damages, costs, and any other appropriate relief. 6. The Claimant further states that the Respondent has not filed a defence despite directions issued on 18th December 2025. 7. It is the Claimant’s submission that the present suit concerns alleged unlawful and unauthorized deductions described as “agency fees” made by the 1st and 2nd Respondents without statutory basis under Section 49 of the Labour Relations Act. The Claimant states that it further seeks interim injunctive relief to stop ongoing deductions from both members and non-members of the Interested Party union, including orders to restrain further deductions, compel cessation of the alleged unlawful deductions, and require reimbursement or deposit of amounts already deducted since August 2023. 8. The Claimant submits that the present suit is distinct from ELRC No. E828 of 2025 because the alleged unlawful “agency fee” deductions primarily benefit the 1st Interested Party, who is not a party in the earlier proceedings. 9. It therefore argues that the two cases are substantively different in both parties and issues, and the doctrine of sub judice does not apply. **Determination** 1. The issue that presents for determination is whether this suit is barred by the doctrine of *sub judice*. 2. Section 6 of the Civil Procedure Act prohibits a court from proceeding with a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title, and the earlier suit is pending before a court of competent jurisdiction. 3. The Supreme Court in ***Kenya National Commission on Human Rights v Attorney General, Independent Electoral & Boundaries Commission & 16 others*** (supra) restated the elements that constitute *sub judice* to bethat there must be more than one suit, the suits must involve the same subject matter, the earlier suit must have been instituted first, the suits must be between the same parties or their representatives, and both suits must be pending before competent courts. 4. For starters, the objection herein relies on comparison of pleadings in ELRC Cause No.E828 of 2025 and the present suit. It is not disputed that the two suits referred to herein exist and are both pending hearing and determination before this court. 5. It is also not disputed that Cause No.E828 of 2025 was filed before the present suit, and both suits are before the Employment and Labour Relations Court, which is competent to determine disputes under the Labour Relations Act. 6. Further, the core parties in both suits are Kenya Union of Special and Professional Guards and G4S Security Services (K) Limited. Although the present suit includes additional parties as Interested Parties, the decisive relationship under *sub judice* is between the principal disputants. The presence of additional parties does not therefore defeat sub judice where the core dispute is substantially between the same litigants. 7. This position is consistent with the principle that parties need not be identically framed where the dispute is substantially between the same persons litigating under the same title. 8. The Respondent argues that both suits concern the legality of deductions from employees’ wages, the entitlement between competing unions, and the statutory authority for the deductions in issue. 9. On its part, the Claimant union contends that Cause No. E828 of 2025 concerns Section 48 of the Labor Relations Act on the deduction of union dues, while the present suit concerns Section 49 on the deduction of agency fees without statutory authority; hence, the position that the issues in the two matters are distinct. 10. The Court notes that in Cause No.E828 of 2025, the pleadings and the interim rulings confirm the dispute concerns the implementation of check-off forms under Section 48, deduction and remittance of union dues, and statutory compliance obligations of the employer. I further note that in the present suit, the Claimant challenges deductions labeled as “agency fees” and the legality thereof under Section 49 and seeks injunctive relief and restitution. 11. In my considered view, both matters arise from the same employment matrix, the same employers, the same employees, competing claims over wage deductions, and competing union representation arrangements. 1. The question whether deductions are termed “union dues” or “agency fees” does not, on its own, create a distinct cause of action where the legal issue in both suits remains which deductions are lawful, under what statutory authority, and in favour of which union or entity. This, in my opinion, aligns with the principle that courts must look at the substance and not the label in determining sub judice. 2. In the final analysis, it is evident that ELRC Cause No. E828 of 2025 is still pending determination, and the present suit raises overlapping questions of law concerning wage deductions. For these reasons, there is no doubt in my mind that parallel adjudication risks inconsistent findings on statutory deduction authority under Sections 48 and 49 of the Labour Relations Act. 3. Having said that, I am of the view that the proper remedy under Section 6 of the Civil Procedure Act is a stay of proceedings, rather than the striking out of the suit herein. 4. Accordingly, I find and hold that the Preliminary Objection is meritorious, as the present proceedings are *sub judice* to Nairobi ELRC No. E828 of 2025. The Court therefore orders:- 5. That the present suit be and is hereby stayed pending the determination of Nairobi ELRC No. E828 of 2025 6. Costs shall be in the cause. 7. It is so ordered. **SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 28TH DAY OF MAY, 2026.** **C. N. BAARI** **JUDGE** **Appearance:** Mr. Ongera present for the Claimant Ms. Sidialo h/b for Mr. Makori for the Respondent Ms. Esther S-CA.