Winguard Services Ltd v Kitui (Miscellaneous Application E263 of 2024) [2026] KEELRC 2173 (KLR) (28 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC MISC. APPLICATION NO. E263 OF 2024** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **WINGUARD SERVICES LIMITED..……..……….……......APPLICANT** **VS** **THEOPHILUS KIPRORIR KITUI….……………….......RESPONDENT** **RULING** 1. The Respondent filed a Notice of Motion application dated 15th August 2025 seeking orders: 2. *THAT the court be pleased to find that the judgement by Honourable T.M ORLANDO failed to be a real trial of issues in relation to the ruling/order by Justice Stephen Radido dated 1st April 2025;* 3. *THAT the court be pleased to direct that the remaining matters be heard individually and on their own merit and the orders of 1st April 2025 be deemed spent or discharged;* 4. *THAT the court be pleased to review and set aside the orders granted on 1st April 2025;* 5. *THAT costs be provided for.* **Respondent’s Case** 1. The Respondent avers that this Court, in its ruling delivered on 1st April 2025, directed that the pending suits against it be consolidated and a test suit selected for determination of the common issues. However, despite efforts by the parties, it proved difficult to identify an appropriate test suit owing to the complexity of the claims and the differing defences advanced in the various matters, some touching on misconduct, abscondment of duty and voluntary resignation rather than redundancy as pleaded by the claimant. 2. The Respondent states that the selected test suit was heard by Hon. Tom Orlando, who dismissed the claim in its entirety, and an appeal has since been lodged against the said judgment. It further avers that two earlier judgments delivered by Hon. Tom Orlando adopted different approaches owing to the differing factual defence presented. 3. The Respondent contends that the judgment rendered in the test suit cannot fairly be applied to the remaining matters. It avers that the trial court found that the claimants in the test suit voluntarily left employment after being issued with a notice to show cause and consequently held that there was no basis for issuance of notice before termination. 4. It is the Respondent’s case that the finding was based solely on the evidence adduced in that suit and cannot automatically bind the other claimants whose factual circumstances, disciplinary records and documentary evidence differ. It maintains that disciplinary proceedings are personal to each employee and that a finding of voluntary resignation or abscondment cannot constitute a blanket determination applicable to all the pending suits. 5. The Respondent further avers that each claimant has distinct employment records, contracts of service and documentary evidence, including leave records, notices to show cause, termination letters and clearance forms, all of which require individual examination. 6. It contends that not all claimants were issued with notices to show cause, subjected to disciplinary proceedings or issued with termination letters, while others were alleged to have deserted duty, voluntarily resigned or failed to report for redeployment. According to the Respondent, these material factual differences render the matters unsuitable for disposal through a single test suit. 7. The Respondent states that the court in the test suit also relied on the specific contract of employment executed by that claimant in determining claims for special damages, overtime and other employment benefits. Therefore, each claimant ought to be afforded an opportunity to produce his or her own contract and employment records since employment terms are individual and not collective. 8. The Respondent further undertakes an analysis of the pleadings, witness statements and documents filed in the pending matters and contends that they disclose substantially different factual situations. 9. It avers that in some suits the defence is that the claimants voluntarily resigned or abandoned employment; in others the claimants allegedly, deserted duty after being issued with notices to show cause and termination letters; in some matters the claimants were expected to report for redeployment after expiry of their contracts; while in others they allegedly secured employment with competing firms. 10. He further states that in several suits there were no notices to show cause, termination letters or evidence of disciplinary hearings, whereas in others the Respondent relies on clearance forms, exit interview questionnaires or allegations that notices to show cause were refused. These differing factual scenarios require separate judicial interrogation and cannot be conclusively determined by the findings in the test suit. 11. The Respondent also avers that some of the pending matters remain undefended while in others compliance with pre-trial directions occurred after this Court had already issued consolidation orders. These circumstances further demonstrate the impracticability of applying one judgment across all the pending claims. 12. The Respondent contends that the Applicant’s witness, Caleb Otieno, made individual factual assertions against each claimant concerning notifications, abscondment, redeployment, resignation and disciplinary processes based on his personal knowledge. 13. He therefore asserts that each claimant ought to be afforded an opportunity to challenge that evidence individually. He further states that the trial court expressly preferred the Respondent's witness over the claimant in the test suit on issues concerning termination, issuance of notices to show cause and disciplinary hearings, findings which were reached on evidence unique to that particular claimant and ought not to be extended to the remaining suits. 14. The Respondent further contends that allegations of abscondment of duty require strict compliance with section 41 of the Employment Act and that employers are required to demonstrate the efforts made to trace employees before terminating employment on account of desertion. He argues that compliance with these statutory requirements must be assessed on a case-by-case basis. 15. The Respondent also avers that the trial court placed the burden of proof upon the employee notwithstanding section 10(7) of the Employment Act, which requires employers to produce employment records. He contends that claims relating to overtime, public holidays and other employment benefits equally depend on individual employment records and contractual terms and therefore require separate evidentiary consideration. 16. It is the Respondent's case that although the claimants initially opposed the adoption of a test suit, they complied with the Court's directions and now seek reconsideration of the consolidation orders in light of the judgment delivered. 17. The Respondent contends that the evidence now available demonstrates that the matters are incapable of effective determination through a test suit and that expediency should not override the constitutional requirement for a fair hearing. 18. The Respondent therefore maintains that the judgment in the test suit does not satisfy the requirements of a representative determination on the issue of unfair termination and cannot properly be applied to the pending suits. **Applicant’s Case** 1. It In opposition to the application, the Applicant filed a replying affidavit dated 10th April 206, sworn by its Human Resource Manager, Caleb Otieno. 2. The Applicant avers that Respondent’s application lacks merit, is an abuse of the court process and ought to be dismissed. 3. The Applicant avers that the Respondent had previously filed an application dated 6th September 2024 seeking consolidation of several suits and the selection of a test suit. The purpose of the consolidation was to determine common issues relating to general damages for unfair termination of employment and/or breach of contract, as well as claims for special damages including one month's salary in lieu of notice, house allowance, underpayment, overtime, unpaid public holidays, compensation for unlawful termination, unpaid annual leave, severance pay, interest and costs. 4. The Applicant states that Hon. Justice Dr. Jacob Gakeri allowed the application for consolidation to proceed for inter partes hearing on 11th September 2024 and subsequently, on 27th March 2025, Hon. Justice Stephen Radido allowed the application and directed the consolidation of the suits. In compliance with the Court's directions, a schedule of the consolidated matters was prepared, filed and served upon the Respondent. 5. The Applicant further avers that the Respondent actively participated in the selection of the test suit through email correspondence and by consent of the parties, *MCELRC No. 1329 of 2022, Amos Kipkurui Towei v Winguards Services Limited*, was selected as the test suit. 6. He contends that the consolidated matters satisfy the legal threshold for designation as a test suit since they arise from similar facts and involve substantially identical causes of action and issues of law. 7. The Applicant asserts that the Respondent has failed to satisfy the statutory or procedural threshold for review of the consolidation orders. The application discloses neither new and important evidence, nor an error apparent on the face of the record, nor any other sufficient reason to warrant review, and is therefore devoid of merit. 8. It is the Applicant's case that the Respondent's application was brought in bad faith and is malicious, vexatious, frivolous and a waste of judicial time. 9. It further avers that contrary to the Respondent's assertions, it was only served with a mention notice via email on 2nd April 2026. 10. The Applicant contends that the application is an afterthought, having been filed only after the hearing and dismissal of the test suit. It asserts that the timing demonstrates that the application is opportunistic and reactive, having been prompted solely by the Respondent's dissatisfaction with the outcome of the test suit. 11. The Applicant further avers that the application amounts to a fishing expedition, being an untargeted, speculative and oppressive attempt to obtain evidence without any credible or particularized basis, thereby constituting an abuse of the court process. 12. The Applicant therefore prays that the Respondent's application be dismissed with costs. **Respondent’s Submissions** 1. On whether the consolidation was properly founded, the Respondent submittedthat the basis of consolidation was not solid, in that a finding of voluntary exit is inherently personal to each claimant and cannot be generalized across the consolidated causes. He argued that the trial court's use of plural language notwithstanding, no two employees share a single notice to show cause, and even if they share then the charges must be specifically directed to an individual clearly ensuring that the judgement as delivered found that there cannot be a consolidation of these matters. 2. It was submitted that whereas essence of the consolidation was to the effect that the claimants indicated that they had been declared redundant and that the same covered all the claimants within the matters that the court had indicated consolidation, the Applicant in the test suit chose instead to dispute redundancy and obtained judgment in their favour basically requiring all the claimants to testify given that the court had found that the claimant in the test suit absconded employment and voluntarily left employment. Given the nature of employment records, it is clear that the claimant’s damages along the lines of wages cannot be part of a consolidated suit a discharge is required therein. 3. The Respondent undertook a matter by matter comparison of the witness statements and lists of documents filed on behalf of the employer across the various consolidated causes, submitting that these disclose materially divergent factual narratives inconsistent with a common trial. 4. He submitted, for instance, that in several matters including *Theophilus Kipkorir Kitui* E1344/2022, *Imana Miriti Fredrick* E1163/2022, *Joseph Chrispinus Okere* E1220/2022, the employer's witness statement and documents disclose no notice to show cause and no termination letter, the claimant having allegedly simply abandoned employment; whereas in other matters such as *Janeth Chepkorir* E1893/2022, *Damaris Nagoma Machuki* E1346/2022, *Olipha Gesare Mose* E1213/2022, and *Dennis Kimutai Rotich* E1810/2022, a show cause letter, clearance form and termination letter are pleaded, each bearing distinct dates requiring individual interrogation. 5. The Respondent further submitted that certain matters such as *Dennis Muywaywa Mina* E1319/2022, *Gilbert Kipyegon Mutai* E1208/2022, and *Arthur Odera Omullo* E1245/2022, have no witness statement or documents on record at all, the last being, an undefended suit whose timelines for response have long lapsed. On this basis, it was argued that the factual foundation of each cause is distinct and cannot be resolved by reference to the test suit judgment. 6. On the applicable law on consolidation and test suits, **t**he Respondent relied on Rule 61 of the ELRC (Procedure) Rules, which permits consolidation of suits only where some common question of fact or law arises or where it is practical and appropriate to proceed with the issues raised in the suits simultaneously. Similarly, Rule 62 provides that where a test suit is adopted, the outcome binds the stayed suits only where the issues are truly similar, and only pending the determination of a real trial of the issues. The Respondent argued that no common question of fact in truth exists across the consolidated causes, since the defences filed disclose distinct factual accounts of desertion, abandonment, or willful resignation, each carrying different dates and different documentary trails, and that consolidation was therefore neither practical nor appropriate. 7. The Respondent cited the Court of Appeal in [***National Union of Water and Sewarage Employees & 3 others v Nairobi Water and Sewarage Company Limited [2018] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/846/eng%402018-02-16), submitting that a court ordering consolidation is required to interrogate and identify the commonality of the matters, in law or on facts, before making such an order; a step the Respondent submitted was wanting in the instant suit in respect of the individual factual disputes disclosed. Reliance was also placed on [***Law Society of Kenya v Centre for Human Rights & Democracy & 12 others [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/29/eng%402014-04-08), for the proposition that "*the essence of consolidation is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it.*" 8. The Respondent submitted that to allow the test suit judgment to bind the other claimants, in the face of the demonstrated factual divergence, would occasion precisely such an unwarranted disadvantage. 9. The Respondent further submitted that, even taken on its own terms, the test suit judgment does not amount to a real trial of the issues contemplated under Rule 62(1). It was argued that the trial court, at paragraphs 34, 37, 38, 39 and 42 of its judgment, made findings peculiar to the individual claimant's own testimony and credibility, including contradictions in his account of returning to the office, and an adverse finding on his honesty none of which could properly be visited upon claimants who did not testify. 10. It was submitted that only one notice to show cause was before the trial court, addressed to a single claimant, and that logic requires each claimant to testify to enable the court to render an individualized decision. The Respondent submitted that the ancillary claims for leave, overtime, public holiday pay, house allowance and severance are individualistic in nature and were not, in any event, encompassed within Justice Radido's consolidation order, which was limited to the question of unfair termination. 11. It is the Respondent’s submission that the only proper course open to the Court is to discharge the consolidation order and direct that each matter proceed to be heard individually on its own merits, alternatively that the orders be found to be spent for want of any genuine common issue warranting consolidation. 12. The Respondent submitted that Winguard, having invoked section 41 of the Employment Act, and moved away from section 40, it cannot benefit from an omnibus finding grounded in individual disciplinary process. **Applicant’s Submissions** 1. On applicable law, he Applicant relied on Order 45 Rule 1 of the Civil Procedure Rules as setting out the threshold for review, namely that an aggrieved person may seek review on account of the discovery of new and important matter or evidence not within his knowledge despite due diligence, a mistake or error apparent on the face of the record, or any other sufficient reason. 2. The Applicant submitted on two issues: whether the application met the threshold for review, and who ought to bear the costs. 3. On the first issue, the Applicant submitted that one of Radido J's directions was that the parties select a test suit within 15 days, and that the Respondent omitted to disclose that the test suit, *CMELRC E1329/2022, Amos Tuwei v Winguards Services Limited* , was in fact selected by consent of both parties, following numerous correspondences, by email dated 23rd April 2025 in which the Respondent's own counsel confirmed: *"Kindly be notified that CMEL E1329/2022 Amos Towei is agreeable from the list submitted given that we are limited to that list."* 4. It was submitted that these exchanges demonstrate the deliberation and caution taken in selecting the test suit, rendering it untenable for the Respondent now to contend that the test suit fails to meet the threshold under Rule 62(1)(b), having himself participated in its selection. 5. The Applicant submitted that Radido J's order merely directed that a test suit be agreed upon, without dictating which specific matter should serve as such; the present application, in challenging the viability of the test suit selected by the parties rather than the terms of the court's order itself, was accordingly said to be fatally defective. 6. It is the Applicant’s submission that the Respondent has already lodged an appeal against the test suit decision, now pending before Hon. Justice Marete as ELRCA E269 of 2025 (*Amos Kipkurui Towei v Winguards Services Limited*). Therefore, the present application amounts to forum shopping. 7. The Applicant submitted that the application dated 15th August 2025 discloses no new and important matter or evidence that was not before the court as at the date of the order of 27th March 2025. The Respondent has failed to demonstrate any due diligence undertaken to discover such evidence, such that the first limb of Order 45 Rule 1 was not satisfied. 8. It was submitted that no error apparent on the face of the record had been shown, the Applicant relying on [***Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/6379/eng%402019-06-25) for the principle that "*a review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter*," and further citing, in the same authority, ***Nyamogo & Nyamogo V Kogo [2001] EA 170*** to the effect that "*mere error or wrong view is certainly no ground for review though it may be one for appeal.*" 9. It is the Applicant’s submission that since the test suit was selected by the parties themselves and not imposed by the court, the alleged deficiency could not constitute an error on the face of the court's own record. 10. Responding to the Respondent's contention that Hon. Tom Orlando's judgment was confined to the individual test-suit claimant, the Applicant submitted that this is misleading, as the Respondent's own counsel had filed a further list of documents incorporating evidence relating to the other claimants, which the trial court expressly considered before rendering its decision; it was submitted that the trial court was alive to the fact that it was dealing with a test suit and permitted such filing accordingly, so that the judgment could not be said to be confined to one claimant alone. 11. The Applicant submitted that the Respondent had failed to establish any other sufficient reason for review, relying on [***Patrick Miano v Mathira Coffee Farmers Housing Cooperative Society Ltd [2017] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/4064/eng%402017-07-28), where the court held that "*a difference in opinion on the interpretation of the law or legal principle cannot be a ground for review.*" It was submitted that the Respondent's grievance amounted to no more than a difference of opinion on the interpretation of the consolidation orders, which is not a ground for review. 12. On costs, the Applicant submitted that, the application having failed to meet the threshold for review, and costs following the event as a matter of trite law, the Applicant ought to be awarded the costs of the application. 13. I have examined all the averments and submissions of the parties herein. The application has sought orders herein which in their nature seem to be an appeal from orders made by Hon. J. Radido (as he when was) a court of competent jurisdiction. The applicant has failed to allude to the fact that they have an appeal arising from the ruling of Hon. Orlando. 14. If this court would proceed and determine this application and render any ruling granting the orders sought this could appear as seeking an appeal of the orders of the learned judge which I lack jurisdiction to. Also in view of the appeal pending before this court, I believe the right forum to argue the issues in this application would be before the court handling the appeal. In order to avoid issuance of any conflicting orders, I decline invitation to allow the application and I strike it out accordingly. Costs in the cause. **Dated, Signed and Delivered virtually at Nairobi this 28th Day of July 2026.** **HELLEN WASILWA** **JUDGE**