https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2313

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC CAUSE NO. E852 OF 2025** **RIFT VALLEY RAILWAYS WORKERS UNION (K)…………CLAIMANT** **VERSUS** **KENYA RAILWAYS CORPORATION……………........1ST RESPONDENT** **MINISTRY OF TRANSPORT, INFRASTRUCTURE, HOUSING & URBAN DEVELOPMENT …………………………...….2ND RESPONDENT** **AFRICA STAR RAILWAY CORPORATION COMPANY LTD………………………………………………………….3RD RESPONDENT** **RAILWAYS AND ALLIED WORKERS UNION……...4TH RESPONDENT** **RULING** 1. The Claimant filed the instant suit raising a number grievances against the Respondents. An analysis of the Memorandum of Claim shows that one of the grievances relates to the alleged failure by the 1st and 3rd Respondents, who are said to have been the employers of the workers on whose behalf the suit has been instituted, to pay them service pay. This is evident from paragraphs 2 and 3 under the subtitle ‘’DESCRIPTION OF PARTIES’’, paragraph 1 under the sub title ‘’ISSUE IN DISPUTE’’, paragraphs 1, 2 and 6 under the subtitle ‘’LEGAL POSITION’’ and paragraphs 2 and 3 under the subtitle ‘’PRAYERS/REQUESTED ACTION’’ in the Memorandum of Claim. 2. Apart from the above grievance, the Claimant also raises a grievance relating to failure by the 3rd Respondent to accord it (the Claimant) recognition. This is self-evident from paragraph 4 under the subtitle ‘’DESCRIPTION OF PARTIES’’ in the Memorandum of Claim. The Claimant states that it has sued this particular Respondent so that it (the 3rd Respondent) can clarify whether there is a valid Recognition Agreement between it (the 3rd Respondent) and the other parties in the cause and why it (the 3rd Respondent) has not concluded a Collective Bargaining Agreement with the trade unions in the rail sector for over 18 years. 3. When the 1st Respondent was served with the pleadings in the cause, it filed the application dated 10th March 2026 seeking to strike out the suit. The 1st Respondent contends that the suit offends the doctrine of Res-Judicata since the issue of recognition which is raised in the matter was the subject of litigation in ELRC Cause No. E1041 of 2021 which was heard and determined on the merits. 4. The 1st Respondent avers that in that suit, the court found that the Claimant was not entitled to recognition by it (the 1st Respondent). As such, it contends that the matter cannot be litigated again in the instant suit. 5. The 1st Respondent avers that although the earlier suit was filed by an entity which, *prima facie*, appears to be different from the Claimant, it is the Claimant who instituted it. As such, it (the 1st Respondent) contends that the Claimant cannot seek to avoid the effect of the Res-Judicata principle by disguising itself under a different name in the current suit. 6. The Claimant has opposed the application. It contends that the parties and reliefs sought in the two suits are different. As such, it avers that the instant suit is not affected by the Res-Judicata principle. 7. I have scrutinized the judgment in ELRC Cause No. E1041 of 2021. It is true that the court held that the Claimant in that suit (which was described as Meter and Standard Gauge Railway Workers and Pensioners Union (K)) did not tender evidence to demonstrate that it had recruited any employees of the 1st and 3rd Respondents to justify its quest to be recognized by the two Respondents. However, it is not obvious from the judgment that the court understood the said company (Meter and Standard Gauge Railway Workers and Pensioners Union (K)) to be the same as the Claimant in the instant suit. As a matter of fact, the court held that the two were rival trade unions. 8. The Claimant contends that the said judgment is the subject of a pending appeal before the Court of Appeal. Therefore, the less that this court comments on it the better. Suffices to state that the judgment does not suggest that the parties in the action were the same as the parties in the case before me. 9. Further, the learned Judge in ELRC 1041 of 2021 identified the issues in dispute to have been, inter alia, the failure to deduct and remit trade union dues. On the other hand, the principal issue in dispute in the cause before me, as mentioned earlier, revolves around non-payment of terminal benefits. 10. Although the issue of non-recognition is mentioned in both suits, I am reluctant to hold that merely because the court in ELRC 1041 of 2021 pronounced itself on the matter (non-recognition) in June 2024, it (the matter) is closed and cannot be revisited. I say so because of two reasons. 11. First, recruitment of members by a trade union is usually a continuous process. Therefore, the fact that a court of law has held that a trade union has not demonstrated that it has recruited members to entitle it to recognition at a particular time cannot be said to constitute a bar to the trade union raising the recognition dispute with the same employer in subsequent cases. The subsequent disputes may as well be premised on subsequent recruitments which constitute distinct causes of action. 12. In the instant case, there is no material placed before me to demonstrate that the Claimant’s quest for recognition by the 3rd Respondent (or indeed the 1st Respondent) is based on the same set of facts which informed institution of the suit in ELRC 1041 of 2021. As such, the court cannot declare the quest as barred by the doctrine of Res-Judicata until it has examined the facts that inform the fresh quest through a full trial. 13. Second, the court notes that the finding relating to recognition in ELRC 1041 of 2021 was between the Meter and Standard Gauge Railway Workers and Pensioners Union (K) as the Claimant and the 1st and 3rd Respondents in this cause. The suit (ELRC 1041 of 2021) was, on the face of it, not between the Claimant in the instant suit and the 1st and 3rd Respondents. As indicated earlier, the learned Judge found that the Claimant herein and Meter and Standard Gauge Railway Workers and Pensioners Union (K) were rival trade unions and an application to alter that finding through review was declined by the court. As such and as matters stand, the parties in ELRC 1041 of 2021 and the instant suit remain different unless and until the Court of Appeal sets aside the judgment in ELRC 1041 of 2021. 14. Having regard to the foregoing, it is apparent that the 1st Respondent has not demonstrated that the instant suit is Res-Judicata. Consequently, I decline to strike it out on this ground. 15. Besides the aforesaid application, the Claimant filed the application dated 5th September 2025 in which it seeks the following orders:- 16. Spent. 17. Spent. 18. That the court directs the parties to attempt resolution of the dispute between them through court annexed mediation. 19. That if mediation fails, a three Judge bench be set up to hear and determine the matter. 20. That the parties exchange the issues for determination. 21. That costs of the application be in the suit. 22. The application is based on the grounds which appear on the face thereof. It is also supported by an affidavit sworn by one Munayi Opondo Isaac, the Secretary General of the Claimant. 23. The affiant contends that the reason why the Claimant seeks adjudication of the cause by a three Judge bench is that it has apprehension that its members will not receive fair treatment if the matter is handled by a single Judge. The affiant contends that the Claimant’s members have previously been denied their rights arising from their employment relationship with the 1st and 3rd Respondents despite their claims being anchored on law. He (the affiant) avers that this was due to interference by the said Respondents. 24. The affiant contends that the two Respondents have not concluded a Collective Bargaining Agreement with trade unions in the rail sector in the last 18 years. He avers that this state of affairs justifies constitution of an expanded bench of the court to interrogate the matter. 25. The application is opposed by the 1st 3rd and 4th Respondents. On the part of the 1st Respondent, it reiterates the averments in its application dated 10th March 2026 to oppose the Claimant’s motion of 5th September 2026. 26. On the part of the 3rd Respondent, it filed an affidavit dated 25th February 2026 to respond to the Claimant’s application. The 3rd Respondent contends that the application is misconceived and ought to be dismissed. It avers that it has never entered into a recognition agreement with the Claimant to warrant the prayers sought in the application and suit. 27. The 3rd Respondent contends that although it has no recognition agreement with the Claimant, it has been remitting trade union dues for the few employees who are members of the Claimant. It nevertheless avers that the Claimant has not met the statutory threshold for recognition. 28. The 3rd Respondent avers that article 41 of *the Constitution* entitles employees to join a trade union of their choice or not to join a trade union at all. As such, it contends that it cannot impose a trade union on its employees. 29. The 3rd Respondent contends that it has, in any event, transferred a majority of its employees to the 1st Respondent. As such, it contends that it only remains on the scene to offer technical support. 30. On its part, the 4th Respondent asserts that it has recognition agreements with both the 1st and 3rd Respondents. It also avers that it has subsisting Collective Bargaining Agreements with the two Respondents. 31. The 4th Respondent avers that the Claimant is not recognized as the bargaining agent for the employees who are engaged by the 1st and 3rd Respondents. As such, it (the 4th Respondent) asserts that the Claimant’s actions amount to unlawful interference with industrial activities at the 1st and 3rd Respondents’ premises and are detrimental to sound industrial relations in the rail sector. 32. The 4th Respondent contests the Claimant’s assertion that the 1st and 3rd Respondents have not concluded Collective Bargaining Agreements for over 18 years. It (the 4th Respondent) relies on alleged Collective Bargaining Agreements between it and the two Respondents to dispute the Claimant’s averments in this regard. 33. The court notes that the averments which the 3rd and 4th Respondents have made in opposition to the Claimant’s application do not directly address the prayers in the application. Rather, they appear to address the merits of the suit. 34. In my view, the issues which the 3rd and 4th Respondents have flagged can only be canvassed during full trial of the case. As such, the court is not entitled to interrogate them at this stage of the case. 35. Article 165(4) of *the Constitution* provides for certification of a matter for purposes of hearing by an expanded bench. However, this is only permissible where the matter raises a substantial question of law. 36. A court should not be too willing to certify a case for trial by an expanded bench unless it is apparent that it raises an issue in respect of which the law remains uncertain. Such certification should only be granted in exceptional circumstances. 37. The above principles have been laid down in a series of decisions. In ***Okiya Omtatah Okoiti & another v Anne Waiguru - Cabinate Secretary, Devolution and Planning & 3 others [2017] KECA 679 (KLR),*** the Court of Appeal observed on the subject as follows:- *‘’For a case to be certified as one involving a substantial point of law, the intending applicant must satisfy the Court that the issue to be canvassed is one the determination of which affects the parties and transcends the circumstances of the particular case and has a significant bearing on the public interest; …The applicant must show that there is a state of uncertainty in the law;…The matter to be certified must fall within the terms of Article 165 (3)(b) or (d) of the Constitution;…The applicant has an obligation to identify and concisely set out the specific substantial question or questions of law which he or she attributes to the matter for which the certification is sought.”* 1. In the instant case, the Claimant’s justification for requesting that the matter be certified for hearing by a three Judge bench is that its pursuit for justice against the 1st and 3rd Respondents has not been with favourable results ostensibly because the two Respondents have manipulated the process to yield undesirable results. The Claimant does not suggest that the dispute between the parties raises any substantial point of law to warrant the matter to be handled by a three Judge bench. Having regard to the dictates of article 165(4) of *the Constitution* and the case-law on the subject, I decline the request to certify the matter as requiring the empanelment of a three Judge bench. 2. The Claimant has prayed that the suit be referred to court annexed mediation in the first instance. Article 159 of *the Constitution* recognizes and indeed encourages the use of alternative dispute resolution methods (including mediation) to resolve disputes. Section 15 of *the Employment and Labour Relations Court Act* allows the court to refer a dispute to mediation either on its own motion or upon a request by the parties. This is complemented by rule 56 of *the Employment and Labour Relations Court (Procedure) Rules*, 2024. 3. Having regard to the foregoing and noting that the Claimant has requested for mediation, the court is inclined to refer the matter to court annexed mediation. It is so ordered. 4. In the final analysis and after evaluating the two applications on record, the court makes the following findings and consequential orders:- 5. The court finds that there is no cogent material to suggest that the instant suit is Res-Judicata. 6. As such, the 1st Respondent’s application dated 10th March 2026 which seeks to have the suit struck out on account of the Res-Judicata rule is declined. 7. The court finds that the Claimant has not demonstrated that the suit raises a substantial point of law as required by article 165(4) of *the Constitution* to warrant the setting up of a three Judge bench to hear it. 8. As such, the request to certify the matter for purposes of empanelment of a three Judge bench is declined. 9. The court finds that the law encourages parties to settle disputes through alternative dispute resolution processes, including mediation. 10. As such, the Claimant’s request to refer the instant dispute to court annexed mediation is allowed. 11. Every party shall bear own costs of the two applications. **Dated, signed and delivered on the 30th day of July, 2026** **B. O. M. MANANI** **JUDGE** In the presence of: …………….for the Claimant …………….for the Respondents **ORDER** **In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.** **B. O. M MANANI**