Rop v Governor of Kericho County & another (Employment and Labour Relations Cause E023 of 2025) [2026] KEELRC 1537 (KLR) (5 June 2026) (Ruling)

Rop v Governor of Kericho County & another (Employment and Labour Relations Cause E023 of 2025) [2026] KEELRC 1537 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1537 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kericho Employment and Labour Relations Cause E023 of 2025 AN Mwaure, J June 5, 2026 Between Hon. Rosemary Chepkirui Rop Claimant and The Governor of Kericho County 1st Respondent The County Government of Kericho 2nd Respondent Ruling Introduction 1.The respondent filed a notice of preliminary objection dated 6th February 2026 on the following grounds that:1.The claimant’s suit is sub-judice being similar cause of action between 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 has been sought in Nairobi ELRC Petition No. E002 of 2025.3.The suit is scandalous, frivolous and vexatious out-rightly 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. Claimant’s Grounds of Opposition 2.The claimant on the other hand filed grounds of opposition dated 3rd March 2026 on the following grounds that:1.The objection is misplaced and an abuse of the law as Cause No. E002 of 2025 was already withdrawn on 10th July, 2025 before this honourable court and so does not exist anymore.2.The preliminary objection as filed is intended to stifle the claimant’s present suit without any justification whatsoever.3.The preliminary objection is an abuse of the court process and intended to deny the claimant her day in court following her wrongful and unfair termination.4.The preliminary objection as filed is maliciously filed and intended to scuttle the claimant’s instant suit. 3.Parties canvassed the notice of preliminary objection by way of written submissions. Respondents’ Submissions 4.The respondent submitted 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 respondent relied on the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors [1969] EA 696, which defined a preliminary objection as a pure point of law capable of disposing of a suit, and Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR, which held that jurisdiction is everything. The respondent also relied on the Supreme Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR), which outlined the elements of sub judice, and Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga [2013] KEHC 2017 (KLR), which held that subsequent suits on the same issues must be stayed or struck out. The respondents submit that the claimant is re-litigating the same cause of action, amounting to forum shopping and duplicity, and therefore the preliminary objection is properly before the court to prevent multiplicity of suits, conflicting decisions, and abuse of the judicial process. 5.The respondents submitted that the claimant is one of the petitioners in Nairobi ELRC Petition No. E002 of 2025, which remains pending, having been transferred to the Kericho Sub‑Registry but not prosecuted further. The respondent dismiss the claimant’s assertion that the petition was withdrawn, clarifying that only Kericho ELRC Petition No. E014 of 2025 was withdrawn. The respondent argued that the present suit is scandalous, frivolous, and vexatious, as it duplicates issues already pending, seeks identical reliefs, and exposes them to double litigation. The respondent relied on the case DT Dobie & Company (Kenya) Limited v Muchina & another [1980] KECA 3 (KLR), they contend that such hopeless pleadings warrant striking out. The respondent further rely on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] KECA 453 (KLR), to argue that instituting parallel proceedings amounts to abuse of court process, wasting judicial time and risking conflicting decisions. 6.The respondent invoked section 27(1) of the Civil Procedure Act, they urge that costs follow the event, and pray that the preliminary objection be upheld, the claimant’s suit struck out in its entirety, and costs awarded to it. 7.At the time of writing of this ruling, the claimant did not file their respective submissions. Analysis and Determination 8.The court has considered the notice of preliminary objection, grounds of opposition, and submission on record. The issue of determination is whether the notice of preliminary objection is merited and is there evidence that the suit is sub judice? 9.In Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR) where 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 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.” 10.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.” 11.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;“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.” 12.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.” 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 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.” 13.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 on 10th July 2025, and therefore no longer exists, making the respondent’s objection unfounded. 14.The court is of the view that the respondent had not provided sufficient evidence to establish that the matter was sub judice in Nairobi ELRC Petition No. E002 of 2025. It emphasized that under sections 107, 108, 109, and 112 of the Evidence Act, the burden of proof lies with the party alleging, and since the court had already examined the available documentation, it was not its role to embark on a “fishing expedition” to fill evidentiary gaps. 15.The respondent has not presented in other words evidence of the Petition 002 of 2025 so that the matters alleged the two suits are subjudice can be interrogated by the court. This then becomes a case that the court needs to interrogate and is not a pure point of law.The court will not even go to discuss the claimant’s allegation that Case No. 002 of 2025 was withdrawn as there is also no evidence in court to prove the same. 16.Flowing from the foregoing, the court finds that the notice of preliminary objection dated 6th February 2026 therefore does not raise pure points of law and it lacks merit. It is dismissed accordingly. 17.Costs will be in the cause.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 5TH DAY OF JUNE, 2026.ANNA NGIBUINI MWAUREJUDGEOrderIn 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 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 MWAUREJUDGE