https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2156

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT KERICHO ELRC CAUSE NO. E009 OF 2025 (Before Hon. Lady Justice Anna Ngibuini Mwaure) MALEL JOHN KIPRUTO….………………......….. ……..CLAIMANT HON. ERICK MUTAI………….………..………….1ST RESPONDENT VERSUS COUNTY GOVERNMENT OF KERICHO…………………………………..……...2ND RESPONDENT RULING Introduction 1. The Respondent filed a Notice of Preliminary Objection dated 28th April 2026 on the following grounds that: 1.The Claimant’s suit is sub-judice, being similar cause of action between the parties on the same subject matter in Nairobi ELRC Petition NO. E002 of 2025. Thus, the suit does not comply with the provisions of Section 6 of the Civil Procedure Act 2.The suit is sub-judice, especially on the reliefs sought inter alia compensation for the unlawful and unconstitutional termination of her employment, whereas the same relief ELRC CAUSE NO E009 OF 2025 RULING PAGE 1 OF 13 has been sought in Nairobi ELRC Petition NO. E002 of 2025. 3. The suit is scandalous, frivolous and vexatious, outrightly ripe for striking out as advanced by Section 6 of the Civil Procedure Act. 4.The entire suit is a gross and blatant abuse of the process of the court, based in law and irredeemably defective, and the same ought to be dismissed entirely with costs. 5.By dint of this motion in limine, any further proceedings in this matter ought to be held in abeyance pending the hearing and determination of this preliminary objection. 2. Parties canvassed the preliminary objection by way of written submissions. Respondents’ submissions 3. The Respondents submitted that the Claimant’s suit is barred by the doctrine of sub judice under section 6 of the Civil Procedure Act, which prohibits courts from proceeding with a matter directly and substantially in issue in a previously instituted suit between the same parties pending before a competent court. The Respondents argued that Nairobi ELRC Petition No. E002 of 2025, in which the Claimant is one ELRC CAUSE NO E009 OF 2025 RULING PAGE 2 OF 13 of five petitioners against the same Respondents, raises identical issues of unlawful termination and compensation, making the current suit duplicative. 4. The Respondent relied on the Supreme Court case in Kenya National Commission on Human Rights V Attorney General; Independent Electoral & Boundaries Commission & 16 others [2020] KESC 54 (KLR), which outlined the elements of sub judice as follows: i. existence of two or more suits filed consecutively; ii. issues directly and substantially the same; iii. parties the same or litigating under the same title; and iv. the earlier suit pending before a competent court. The Respondents contend all these elements are satisfied. 5. The Respondent also relied on Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga [2013] KEHC 2017 (KLR), where the court held that subsequent suits must be stayed or struck out if they duplicate issues, and Nkamasiai & another v Juhudi ELRC CAUSE NO E009 OF 2025 RULING PAGE 3 OF 13 Kilimo Co. Limited & Another [2026] KEHC 1834 (KLR), which affirmed that sub judice is a jurisdictional issue properly raised by preliminary objection. 6. Further, the Respondents argued the suit is frivolous and vexatious under the principles in DT Dobie & Company (Kenya) Limited v Muchina & another [1980] KECA 3 (KLR), as it seeks to re-litigate matters already pending, and constitutes an abuse of process as described in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] KECA 453 (KLR), where abuse was defined as using court process for purposes other than those intended. 7. On costs, the Respondent invokes section 27(1) of the Civil Procedure Act, which provides that costs follow the event, urging the court to award costs to them for defending a duplicative suit. 8. The Respondents maintain that the Claimant’s suit offends Section 6 of the Civil Procedure Act, duplicates Nairobi ELRC Petition No. E002 of 2025, and amounts to forum shopping, frivolity, and abuse of process. The Respondents therefore pray that the ELRC CAUSE NO E009 OF 2025 RULING PAGE 4 OF 13 preliminary objection be upheld, the suit struck out in its entirety, and costs awarded to them. Claimant’s submissions 9. The Claimant relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where the Court held that a preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded are correct, and cannot involve factual ascertainment or judicial discretion. Examples include objections to jurisdiction, limitation, or arbitration clauses. 10.The Claimant submitted that the doctrine of sub judice, set out under section 6 of the Civil Procedure Act, requires a court to stay proceedings where a previously instituted suit is pending before a competent court, involving the same parties, subject matter, and issues. However, determining whether a matter is sub judice requires factual inquiry into the existence of the prior suit, the identity of parties, and the similarity of issues. In Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR) the Supreme Court held that preliminary objections cannot resolve ELRC CAUSE NO E009 OF 2025 RULING PAGE 5 OF 13 matters dependent on evidence. Similarly, the Supreme Court in Charo v Mwashetani & 3 others [2014] KESC 5 (KLR) and Aviation & Allied Workers Union v Kenya Airways [2015] KEIC 1 (KLR) emphasized that preliminary objections must rest on uncontested facts. In Oraro v Mbaja [2005] KEHC 3182 (KLR), Ojwang J. reiterated that preliminary objections requiring factual determination are incompetent. 11. The Claimant argued that Nairobi ELRC Petition No. E002 of 2025 was withdrawn in July 2025, endorsed by Justice Anna Mwaure, and is no longer pending. As held in Jaber Mohsen Ali v Priscillah Boit [2014] eKLR, a withdrawn or concluded suit cannot be ground of sub judice objection. Thus, the Respondents’ reliance on a non-existent petition renders their objection fatally defective. 12. Moreover, invoking a preliminary objection on this basis amounts to abuse of process. In D.T. Dobie & Co. Ltd v Muchina(supra), the court cautioned against using preliminary objections to delay proceedings, while Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd(supra) defined ELRC CAUSE NO E009 OF 2025 RULING PAGE 6 OF 13 abuse of process as using court procedures for purposes other than those intended. The Claimant contends the objection is a tactical manoeuvre to obstruct expeditious resolution of her employment dispute. 13. The Claimant therefore prays that the objection be dismissed with costs and the matter proceed to full hearing on the merits. Analysis and determination 14.The court has considered the notice of preliminary objection and submissions on record; the issue for determination is whether the case is sub judice Petition 002/2025 and so should the case be dismissed? 15. In Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR), the Supreme Court cited the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors(supra) Law, JA, at page 700 as follows: “So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary ELRC CAUSE NO E009 OF 2025 RULING PAGE 7 OF 13 point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit or to refer the dispute to litigation.” 16. Section 6 of the Civil Procedure Act provides as follows: ‘‘…No court shall proceed with the trial of any suit or proceedings 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, where such suit or proceeding is pending in the same court or any other court having jurisdiction in Kenya to grant the relief claimed.’’ 17. In Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others(supra), the Supreme Court referred to the Black’s Law Dictionary 9th Edition definition of sub-Judice as; “Before the Court or Judge for determination.”. The Supreme Court then proceeded in its advisory opinion as follows; ELRC CAUSE NO E009 OF 2025 RULING PAGE 8 OF 13 ‘‘The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that: there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 18.In Republic v Paul Kihara Kariuki & 2 others; Ex Parte Law Society of Kenya [2020] KEHC 3289 (KLR), Justice Mativo (as he was then) stated as follows: “…there exists the concept of sub judice which in Latin means “under Judgment.” ELRC CAUSE NO E009 OF 2025 RULING PAGE 9 OF 13 It denotes that a matter is being considered by a court or judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding, and such an order can be made at any stage.” Mativo J. (as he then was) proceeded to strike out the suit holding that the existence of another suit would render issues in subsequent suit res-judicata.” 19. In this instant case, the Respondent contends that the Claimant’s suit is sub judice under section 6 of the Civil Procedure Act, since the issues are already pending in Nairobi ELRC Petition No. E002 of 2025 involving the same parties, subject matter, and reliefs. The Respondents further argue that the suit is scandalous, frivolous, and vexatious as it duplicates pending claims, seeks identical remedies, and exposes them to double litigation. The Claimant, however, maintains that ELRC Petition No. E002 of 2025 was withdrawn and therefore no longer exists, making the Respondent’s objection unfounded. ELRC CAUSE NO E009 OF 2025 RULING PAGE 10 OF 13 20.The court is not clear of the existence of a live case Petition 002/2025 as a pending suit capable of being cited as sub-judice to the current suit. 21. Looking at the CTS, the court confirmed that the case of HON. BRIAN CHERUIYOT & 5 OTHERS -VS GORVENOR OF KERICHO & ANOTHER was transferred from Nairobi to Kericho. It was to be consolidated with Petition No. E014/2024. The CTS further shows on 10th July 2025 Petition 014/2024 was marked closed. 22. So, the said case 002/2025 consolidated with 014/2024 is no longer alive and so this present case cannot be said to be sub-judice. Sub-judice according to Section 6 of the Civil Procedure Act 12 is invoked only where there is a substituting case alongside the current case. 23.The court having considered the Application and submissions, the Applicable law and cited cases holds the Applicant has not proved the tenets for granting a Preliminary Objection on grounds of sub-judice. The P.O. is not merited and so is dismissed accordingly. ELRC CAUSE NO E009 OF 2025 RULING PAGE 11 OF 13 24.Each Party will meet their costs. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 17th Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of ELRC CAUSE NO E009 OF 2025 RULING PAGE 12 OF 13 the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE ELRC CAUSE NO E009 OF 2025 RULING PAGE 13 OF 13