Opado v Steel Makers Group Ltd (Employment and Labour Relations Cause E048 of 2025) [2026] KEMC 359 (KLR) (29 July 2026) (Ruling)

Opado v Steel Makers Group Ltd (Employment and Labour Relations Cause E048 of 2025) [2026] KEMC 359 (KLR) (29 July 2026) (Ruling) Neutral citation: [2026] KEMC 359 (KLR) Republic of Kenya In the Kilifi Law Courts Employment and Labour Relations Cause E048 of 2025 TN Sinkiyian, PM July 29, 2026 Between John Ayaga Opado Claimant and Steel Makers Group Limited Respondent Ruling 1.The Respondents' application dated 25/3/2026 is for determination. The same is opposed by way of the claimant’s relying affidavit sworn 4th May 2026. 2.Summary of contention by respondent: Respondent seeks striking out of the claimant’s cause on grounds that there is a previously instituted suit by KEWU involving the same subject matter as pending here where in the claimant here is party to through KEWU and therefore the current suit offends doctrine of sub judice. Respondents' application dated 25/3/2026 be allowed with Costs to the Respondent. Submissions dated 18/5/2026 lodged by Kamoti Omollo & Co. Advocates. 3.Respondent submits that the claimant in his replying affidavit confirms he is a member of KEWU (Kenya Engineering Workers Union) and admits he reported his grievance against the Respondent to the union but that due to prolonged unresponsiveness and sluggishness on the part of the union, claimant decided to file the Claim here. 4.The respondent raises issue with the claimant's cause submitting that the claimant should not be allowed to litigate this cause while there is pending ELRC Cause no. E089 of 2025 filed by KEWU on behalf of its members including the claimant herein. 5.There is similarity in the questions pending determination in ELRC E. 089 of 2025 and those pending in the current cause. That there is similarity on the question of employment relationship between KEWU members and the Respondent here; termination and unpaid dues and the issues in this cause. 6.Respondent submits that should claimant be allowed sustain claim here in view of ELRC E. O89/2025 there is a possibility of conflicting decisions, and also the respondent stuffers costs of defending multiple suits in different forums over same subject matter. There is a possibility of double reliefs over the same subject matter. Respondent relies on Section 6 Civil Procedure Act. Power to safeguard against abuse of court process. 7.Claimants submissions dated 20/5/2026 Lodged through Wambani Antonette & Co. Advocates for the Claimant. Claimant’s position is that the union suit is distinct from his cause. The union 12/9/2025 KEWU (Kenya Engineering Workers Union) He was never consulted by KEWU upon institution of the collective claim in ELRC No. E089/2025, and Union having failed to respond to grievances for over 13 months, claimant took steps out of necessity to file his claim 18/10/2025 to seek reliefs. Claimant admits he is one of the 129 grievants in 089/25 listed as claimant no..66 with a slightly different quantum sought Kshs. 1,491, 104/=. Lodged through Wambani Antonette & Co. Advocates for the Claimant. 8.Claimant's Submissions in gist address: this court’s jurisdiction urging the court is a competent forum. Claimant urges that the Magistrates' Courts Jurisdiction, pursuant to Gazette Notice No. 6024 of 22nd June 2018, is prescribed and the Magistrates' Courts have jurisdiction to hear and determine individual employment and labor relations claims where the employee’s gross monthly remuneration does not exceed KES 80,000/-.as in this case. 9.Claimant submits that disputes Collective rights fall under exclusive jurisdiction of the Employment and Labour Relations Court (ELRC), as do individual claims where claimants earn more than Kshs. 80,000/=. 10.Claimant urges that the causes subject of the respondent’s application, that the Union’s suit ELRC No. E089 of 2025, is a collective claim involving 129 grievants filed before the ELRC, while what is before this court is for an individual's claims therefore, there is no jurisdictional overlap or conflict between the two matters. 11.Claimant submits that filed his consent was neither sought nor obtained before the Union included him in its collective suit. To cure any perceived conflict or overlap. His suit should therefore proceed separately from the union suit. 12.The Claimant Mr. John Ayaga Opado contends that he acted independently in filing this cause and he was not a party to the decision by the Union to file the collective suit. He only learned of it through the Respondent's application. His suit cannot be sub judice in the circumstances. 13.Claimant submits that the respondent should not be allowed to use technical objections to deny him a hearing as that would in essence using the respondent’s wrongful acts as a sword and shield. 14.Respondent should not be allowed to take advantage of its wrongdoing as equity prohibits a party from benefiting from its own wrong, using the judicial system simultaneously as both a sword and a shield. The Court should uphold Article 159(2)(d) of the Constitution of Kenya, which requires courts to administer justice without undue regard to procedural technicalities. The application is brought in bad faith. The Respondent should not be permitted to evade substantive accountability while shielding itself from its own unlawful conduct purporting to use procedural safeguards of Section 6 of the Civil Procedure Act. 15.The application does not meet the threshold for Striking Out a Pleading. The draconian remedy: of striking out a pleading, should be sparingly applied with utmost caution. 16.In this case the claimant's cause has substance and therefore striking out should not be used to prematurely terminate the matter without full merits of the case. The following issues are highlighted as triable issues of fact and law: Substantive fairness of Termination: Whether the Claimant's termination on 28th August 2024 was substantively fair. Statutory Notice / Pay in Lieu: Whether the Respondent complied with the mandatory requirement for notice (or payment in lieu of notice); Unpaid Salaries: Whether the Claimant is entitled to unpaid salaries accrued up to 2024; Demotion & Unfair Labour Practice: Whether the Respondent's recall of the Claimant and subsequent treatment of him as a casual labourer with reduced pay constituted an unfair labour practice and a breach of contract. Quantum of Compensation & Terminal Dues: The appropriate quantum of compensation for unfair termination and terminal dues after over 30 years of continuous service. Those issues require a full trial with oral (viva voce) evidence and cross-examination rather than a summary dismissal. Those issues raised directly touch upon the core of the employment relationship and cannot be dismissed without a full trial. The current application does not meet the legal threshold. 17.There is nothing incurably bad in the claimants cause that warrants the court's power to strike out a pleading being invoked. Claimant therefore prays that the Respondent’s application being an attempt to shut out a viable claim on technical grounds, should be dismissed with costs. 18.Analysis and findings: The court has considered the motion dated 25/3/2026 and the parties respective submissions dated 18/5/2026 and 20/5/2026. Both parties have cited and relied on several authorities in urging their respective positions are merited. 19.The claimant confirms in his relying affidavit sworn 4th May 2026 that he is in fact one of the claimants in the case filed by the KEWU (claimant no. 66 in ELRC E089 of 2025) but that he never authorized the union to act on his behalf and that he acted individually after the union failed to respond for over 13 months to his grievance. 20.The court is satisfied that the claimant is not barred from filing an individual claim as he has done in the current cause, especially as in this case where the claimant purports that KEWU did not consult him and he did not give authorization to be included in the trade Union suit. There from Rule 9 of the ELRC (Procedure) Rules there is a basis to argue that a representative suit cannot bind the individual claimant where the said claimant did not give express written authority or consent to be included in the representative suit. 21.However in the case now before court, considering together the fact that the claimant admits that he had reported his grievance to the KEWU and the fact that Claimant here (is claimant no. 66 in the ELRC cause E089 of 2025) and claimant has not produced before this court a notice filed in ELRC E 089 of 2025 formally opted out of the union representative suit and consequent withdrawal of his claim before ELRC, the Respondent’s application is not frivolous as there is a risk of conflicting court decisions between the superior court ELRC and the lower court. 22.Claimant here has not not shown he sought to be formally excluded/struck off from the collective union claimants’ list having since learnt that he is one of the grievance on whose behalf the Union suit is filed. His individual suit was lodged because of the unresponsiveness of the union. The claimant only highlighted a slight variation in the amount of his dues as claimed in the Union suit and that pleaded here: Kshs. 1,491, 104/= while in this matter is Kshs. 1,572, 192/= . the claims sought in respect of claimant no. 66 and those sought in the cause here are almost on all fours; 3 months notice similar; unpaid salary similar; 595,696/= against here kshs. 513,792/= service pay Kshs. 595,696/= against here where its a slightly higher sum kshs. 642,240/=, the difference is leave pay claimant in union suit Kshs. 42,816/= not sought here, and the underpayment claimed here but not in the union suit. The claimant’s alleged period of service in the union suit as it is here is 30 years. 23.Striking out a suit is a draconian remedy and in the circumstances of this case given that this court has jurisdiction to hear the dispute as the suit is not barred. Key consideration in the circumstances is not to lock out the claimant from court while also giving deference to the ELRC as it is a court whose decisions are binding upon this court; and in order to minimize the potential for conflicting decisions, the exercise of this court’s discretion is best applied by staying the claimant’s suit before this court, as opposed to striking it out the claim. 24.The suit is hereby stayed and will be mentioned periodically after every 4 months for an update on the progress of the ELRC union suit: ELRC E 089 of 2025 Mombasa. Costs of the motion shall be in the cause. RULING DATED, SIGNED & DELIVERED THIS……29TH DAY OF……JULY .…2026 T. N. SINKIYIAN PRINCIPAL MAGISTRATEIn presence of:For Claimant …AbsentWambani Antonette & Co. AdvocatesFor the Respondent (current applicant)Kamoti Omollo & Co. Advocates: Ms. Manyara PresentCourt assistant: …Wesonga