https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1944

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E170 OF 2026** **STEPHEN M. MASIKA 1ST PETITIONER** **DAN MIHADI 2ND PETITIONER** **JAMES NJIHIA 3RD PETITIONER** **VERSUS** **WATSON BUTIKO 1ST RESPONDENT** **NICHOLAS OTIENO OGOLA 2ND RESPONDENT** **JONNES MUTUKU 3RD RESPONDENT** **REGISTRAR OF TRADE UNIONS 4TH RESPONDENT** **THE TRANSPORT WORKERS UNION 5TH RESPONDENT** **RULING** The ruling herein relates to Notice of Preliminary Objections filed by the 1st, 2nd, 3rd and 5th respondents. The objections are made following the petitioners' filing of a Notice of Motion and petition dated 27 May 2026. The objections are that the court lacks jurisdiction to hear and determine this petition as framed, as the dispute herein relates to the trade union elections of officials governed under section 34(4) of the Labour Relations Act (the LRA) and the Trade Union Elections (Election Petition) Rules and the Employment and Labour Relations Court (Trade Union Election Disputes) Procedures and Practice Directions, where the petitioners have failed to adhere to the mandatory provisions thereof. Other objections are that the petitioners are improperly invoking the constitutional jurisdiction of the court to obtain relief that is, in effect, election remedies arising from trade union leadership disputes, seeking to circumvent the exclusive statutory dispute-resolution framework under the LRA, the Trade Union Election Rules, and the Trade Union Disputes Procedures. The issues raised in the petition are substantially, directly and materially identical to issues previously raised, litigated and determined in the following proceedings: 1. Nairobi ELRC JR No. E036 of 2025 – Dan Mihadi, Stephen Masika & another v Nicholas Ogola & Registrar of Trade Unions. 2. Nairobi ELRC Petition No. E263 of 2025 – Stephen M. Maska, Dan Mihadi & James Njehia v Transport Workers Union and Registrar of Trade Unions. 1. Nairobi ELRCA No. E207 of 2025 Stephen M. Masika, Dan Mihadi & James Njihia & 2 others v Registrar of Trade Unions & others. 2. Nairobi ELRC Petition No. E103 of 2026 Stephen M. Masika & 2 others v Watsn Butiko & 4 others. In these proceedings, the legality, validity and effect of the assumption of office by officials of the 5th respondent were directly in issue. They were heard, and there is a determination by this court. The petition herein arises from the same factual matrix, subject matter, grievances, transaction, and reliefs that formed the basis of the previous suits. The petitioner seeks to reopen and relitigate the same matters as already determined. These proceedings are barred by the doctrine of *res judicata,* constructive *res judicata,* and estoppel and thus are in abuse of court process. Further objections are that Nairobi ELRC JR No. E036 of 2025 was dismissed on 30 June 2025; Nairobi Petition E263 of 2025 was dismissed on 3 March 2026; Nairobi ELRC Petition E103 of 2026 was struck out on 11 May 2026, thereby finally and conclusively determining the disputes and issues in question. This petition seeks to re-litigate the same issues under the guise of a constitutional petition. Other grounds are that the petition constitutes an impermissible attempt to relitigate and reopen proceedings already determined, thereby contravening the principle of *res judicata.* The remedies sought herein are replicated from Nairobi ELRCA No. E207 of 2025 and therefore constitute a collateral attack on the final finding and determination of the suit contrary to the doctrine of finality of litigation. The petitioners are barred under the doctrine of estoppel from relitigating the same matter before the same court, as determined in Nairobi ELRC Petition E103 of 2026. There exists Nairobi ELRCA No. E045 of 2026 – William Mmosi & another v Registrar of Trade Unions & another, which remains pending before this court. There exists Eldoret MCELRC Cause E073 of 2025 – Transport Workers Union Kenya & others v Dan Mhadi & others, in which, on 16 April 2026, the court issued injunctive orders restraining the petitioner from interfering with the union's activities. The proceedings herein are contrary to section 6 of the Civil Procedure Act and risk producing contradictory orders from the court. The petitioners have engaged in a deliberate pattern of multiplicity of suits, and the present petition is evidence of such conduct. This is a gross abuse of the court process. The petition should be struck out for being *res judicata* and an abuse of court process. The petitioners should pay costs. On the objections, the respondents submitted that the objections meet the principles set out in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA.** Objections should be made on a point of law on matters that, if addressed, are likely to dispose of the entire suit. The court lacks jurisdiction to hear this petition as the issues addressed are already litigated and determined in several other suits. Where there exists a statute addressing a redress mechanism or grievance, such procedure should be applied as held in **Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR.** The petitioners cannot abandon the mandatory statutory regime and seek refuge under constitutional provisions merely because they are dissatisfied with the outcome of previous suits. In **Patrick Sakwa v Kenya National Private Security Workers Union & others, Kisumu ELRC Petition No. E010 of 2025,** the court held that a constitutional petition challenging trade union elections must be commenced in accordance with section 34(4) of the LRA and the Trade Dispute Procedures. Constitutional provisions cannot be invoked to circumvent the statutory timelines. This suit is thus *res judicata* and filed contrary to Section 6 of the Civil Procedure Act. There exists: Nairobi ELRC JR E036 of 2025; Nairobi ELRC Petition E263 of 2025; Nairobi ELRCA No. 207 of 2025; Nairobi ELRC Petition E103 of 2026. In ELRC JR E036 of 2025, the petitioners challenge the registration of union officials, a challenge similar to that sought in Petition E263 of 2025. The petitioners filed ELRCA E207 of 2025 and Petition E103 of 2026, which have since been determined with finality. To urge similar matters is to seek to re-litigate before the same court, which is an abuse of court process. In **John Florence Maritime Services Limited & another v Cabinet Secretary for Transport Infrastructure & 3 others [2021] EKLR,** the court recognised that res judicata extends not only to matters actually determined but also to matters which ought to havereasonably been raised in previous proceedings. The petition is *sub judice*, contrary to the principles set out in section 6 of the Civil Procedure Act. Where a matter is already addressed in a similar suit, the parties should to re-litigate it before the same court. In Nairobi, ELRCA E045 of 2026 and Eldoret MCELRC Cause E073 of 2025 both concern substantively the same issue on the leadership of the 5th respondent union. In Eldoret MCERC Cause E073 of 2025, the court issued injunctive orders restraining the petitioners from interfering with the union's governance and operations. This petitioner also raises similar grounds that have already been addressed. Invariably, the respondents submit that there is an abuse of the court process, that the objections should be allowed, and that the petition be dismissed with costs. The petitioners submitted that they seek orders pursuant to the judgment in ELRCA E207 of 2025, holding that the respondents are in violation of articles 2(4) and 41(4) of the Constitution. They seek a declaration that, following the judgment, the actions taken by the respondents be declared null and void, as well as a judicial review order of mandamus to issue compelling the 4th respondent to comply with the judgment in ELRCA E207 of 2025 and to register officials to where it was prior to the unconstitutional changes made by the respondents. The petitioners submitted that the petition seeks to enforce the judgment in ELRCA E207 of 2025, which set aside the Registrar of Trade Unions' decision. The court allowed the appeal, but the Registrar of Trade Unions has not effected it. The court has held that the petitioners' removal from office was unconstitutional and illegal. The petition is thus not filed in contravention of the principles of *res judicata* or *sub judice.* The allegations that issues raised in: Nairobi ELRC JR E036 of 2025; Nairobi ELRC Petition E263 of 2025; Nairobi ELRCA No. 207 of 2025; Nairobi ELRC Petition E103 of 2026. A petition similar to this is not correct. ELRC JR E036 of 2025 was filed to challenge the 2nd petitioner's suspension from the union. ELRC Petition E263 of 2025 sought to stay union elections while ELRCA E207 of 2026 was pending determination. The petition was withdrawn, and the orders were not granted. It has since been overtaken by events. Thus, ERLC Petition E207 of 2025 was filed challenging the unconstitutional removal of the petitioners from office. These are issued differently from this petition. In ELRC Petition E103 of 2026, this was struck out for seeking orders against the union elections. The petition was not heard on the merits. The petitioners submitted that each suit is different from the other. In **Nguruman Limited v Jan Bonde Nielson & another [2017] eklr,** the court held that a suit is res judicata if it is identical to the other suit, the parties are the same, and the suit has been substantively addressed and a final determination made. Hence, there is no abuse of the court process as alleged. The objections made should be dismissed to allow the hearing of the petition herein. **Determination** The respondents raise objections that the court lacks jurisdiction to hear and determine the instant petition on the grounds that it is res judicata, sub judice, and an abuse of court process. Indeed, as submitted by the petitioners, a suit is res judicata if it violates the provisions of section 7 of the Civil Procedure Act. The provisions thereof are addressed in **John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR):** *For res judicata to be invoked in a civil matter, the following elements had to be demonstrated:* * 1. *There was a former judgment or order which was final;* 2. *The judgment or order was on the merits;* 3. *the judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and* 4. *There had to be identical parties, subject matter, and cause of action between the first and the second action.* Equally, for a suit to be sub judice, it must go contrary to section 6 of the Civil Procedure Act. in **Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR)** the court summarized the principles that the present matter must either be the same or substantially similar to a matter already before the Court. In **Kenya Ports Authority v Ramogi & 8 others [2019] KECA 305 (KLR),** the court held that the broader issues are the same and there should only be one outcome. The purpose of these legal principles is to avoid multiplicity of suits by the same parties over the same issues. To begin with, the orders sought in the petition and application dated 22 May 2026 seek to enforce the judgment in ERLCA E207 of 2025. This fact is admitted by the petitioners. According to the petitioners, upon the judgment thereof, the Registrar of Trade Unions has refused to comply and effect the union officials by returning them to the register of union officials. There thus exists ELRCA E207 of 2025, where judgment has since been issued with regard to the same parties and against the same respondents. Upon the judgment in ELRCA E207 of 2025, enforcement thereof or non-compliance thereof cannot be through filing a new petition as herein done. The petitioners, with proper representation through their advocates, are aware that any enforcement or need to ensure that the respondent adheres to the orders in the positive order should not be effected by filing a fresh petition, as herein done. Such is the abuse of the court process. Duplication of suits in an effort to execute is not procedural. The petitioners also admit that they filed ELRC Petition E263 of 2025 seeking to stay the union elections, since the judgment in ELRC E207 of 2025 was pending. They have since withdrawn such a petition. However, although ELRC Petition E263 of 2025 was withdrawn, the objection that there is an abuse of court process remains correct. Petitioners cannot assert that they moved the court under such a petition merely because a judgment was pending in another suit addressing similar matters. Filing multiple suits is both an abuse of court process and contrary to sections 6 and 7 of the Civil Procedure Act, as they are res judicata and sub judice as defined above. Such conduct is not justified. In ELRC JR E036 of 2025, the petitioners moved the court challenging their suspension from the union. Indeed, at the core of the suit were the governance, leadership, and elections of the 5th respondent. In **John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR),** the court, in addressing the principles of *res judicata*, held: *… where a given matter becomes the subject of litigation in, and adjudication by, a* *court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. …* The court thus emphasised: *… The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.* Upon moving the court, the petitioners had the opportunity to address all matters reasonably between the parties. By exercising reasonable diligence, all issues in the various suits should have been addressed in a single suit rather than piecemeal litigation, as herein done. Where the character of the suit changed, under the Employment and Labour Relations Court (Procedure) Rules, amendments are allowed. Opting to file a different suit at every turn of events, withdrawing once the issue is addressed, is sheer abuse of the court process. Petition E103 of 2025 is such a moment where abuse of court process was instantly noted, and the court struck out the petition. However, no orders on costs were made. Although under section 34(4) of the LRA, a party aggrieved with the electoral process of a trade union should file his case with the court, filing of multiple suits over the same election or cause of action relating to or connected to the same electoral process is an abuse of court process. In **Mycredit Limited v Micro and Small Enterprises Tribunal; African Herbal Ingredient Wholesalers Limited (Interested Party) [2026] KEHC 1206 (KLR)** and **Darson Trading Limited v Oketch [2024] KEHC 5572 (KLR),** the courts have held that litigating the same point through multiple suits before the same court is what defines abuse of court process. Such results in wastage of judicial time and resources. Of interest is the filing of **Eldoret CMELRC Cause E073 of 2025** by Transport Workers Union Kenya & others v James Njihia & others. The 5th respondent herein filed the claim before the magistrates' court seeking injunctive orders against the petitioners. Interim orders were issued on 16 April 2026. Under Gazette Notice No. 6024 of 10 June 2018, the magistrates' court has jurisdiction over employment disputes only and not labour relations. Labour relations disputes remain under the exclusive jurisdiction of the court. This shall suffice. The objections by the respondent are with merit. The instant petition is filed in contravention of sections 6 and 7 of the Civil Procedure Act read together with 34(4) of the Labour Relations Act (the LRA), and the Trade Union Elections (Election Petition) Rules and the Employment and Labour Relations Court (Trade Union Election Disputes) Procedures and Practice Directions. The matter being *res judicata* and *sub judice*, compounded by an abuse of court process, denies the court the requisite jurisdiction to rehear the same. The court must put its tools down, save to order for payment of costs to the respondents, save for the 4th respondent **Accordingly, the objections by the respondents are well-founded and are hereby allowed. The Notice of Motion and the petition dated 22 May 2026 are hereby dismissed. costs to the respondents, save for the 4th respondent.** **Delivered in open court this 9th day of July 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** ……………………………………………… and …………………………………..………