https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1646

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** *(Before Hon. Lady Justice Monica Mbarũ)* **PETITION NO. E131 OF 2026** **TONGE YOYA PETITIONER** *VERSUS* **KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL** **INSTITUTIONS, AND HOSPITAL WORKERS’** **UNION (KUDHEIHA) 1ST RESPONDENT** **THE REGISTRAR OF TRADE UNIONS 2ND RESPONDENT** **LABOUR COMMISSIONER 3RD RESPONDENT** **RULING** The ruling herein relates to objections raised by the 1st respondent and dated 28 April 2026. The objections are: 1. *The petition and Notice of Motion disclose a reasonable cause of action against the respondent.* 2. *The application and petition dated 24 April 2026 are both res judicata ad flies against the decision in Petition E011 of 2026, Nakuru, between the same parties whose judgment was delivered on 2 April 2026.* 3. *Under section 34(1) of the Labour Relations Act, elections of a trade union* *shall be conducted in accordance with its registered constitution and the 1st respondent has strictly complied therewith.* 1. *The applicant has misapprehended the law entirely.* 2. *The application fails to meet the legal threshold for grant of interlocutory injunctive relief.* 3. *The application and the petition constitute an abuse of the court process.* 4. *The jurisdiction of this court has not been invoked.* The 1st respondent thus is seeking that the Notice of Motion and petition dated 24 April 2026 be struck out with costs. On the objections, parties agreed to file written submissions. The 1st respondent submitted that the petition and the Notice of motion filed by the petitioner disclose no reasonable cause against the 1st respondent. The petitioner filed Nakuru Petition No. E011 of 2026 between the same parties as herein, and judgment was delivered on 2 April 2026. Under section 34(1) of the Labour Relations Act (LRA), trade union elections should be conducted in accordance with the union constitution. The subject of the petition is thus *res judicata*, having been determined by the same court of equal jurisdiction. The matters in issue in this petition are similar to Nakuru Petition E011 of 2026. The prayers sought herein are similar to those addressed by the court in the previous suit. The petition is filed in abuse of court process and denies the court jurisdiction, the same being *res judicata*. The introduction of a new party in this petition, the Labour Commissioner, is an attempt to evade the doctrine of *res judicata*. The facts and grounds of this petition are similar to the previous suit in **Nakuru Petition No. E011 of 2026**, which has since been adjudged with finality and judgment issued on 2 April 2026. The petitioner is hence estopped from bringing a similar suit before this court. The 1st respondent submitted that in **Timothy Makenge v Mnunga Ngochi, Civil Appeal No. 25 of 1978,** the court held that the essence of the *res judicata* rule is that there must be an end to litigation. Section 7 of the Civil Procedure Act provides that no court should try any suit that is already adjudged by the same court with finality. In **Kanorero River Farm Limited & 3 others v National Bank of Kenya Limited HCCC No. 699 of 2001**, the court held that the doctrine of *res judicata* applies to suits and applications. Once a suit or application is finally disposed of, it cannot be reheard by the same court. Such would be an abuse of court process and contrary to the doctrine of *res judicata*. The petitioner has since been heard by this court on the same subject matter, and judgment has been rendered. Filing the same petition with the addition of one respondent is an abuse of the court process, and the petition and application should be struck out with costs. The petitioner submitted that the threshold in **Mukisa Biscuit case** on raising Preliminary Objection is that the 1st Respondent assume that all facts pleaded by the Petitioner including the cause of action is correct and are not to be ascertained in anyway which is not the case with the objection before the court. The 1st respondent has invited the court to look beyond Section 34 of LRA and its registered Constitution in the preparation of the impugned election by determining the entire petition. In the case of **Margeret Nyiha Gatambia & 2 Others versus Peninah Ngechi Njaga & 3 others 2019 EELC795(KLR)** the court held that before the Court embarks on determining the merit of the Notice of Preliminary Objection, it has to first determine whether what has been raised herein satisfy the ingredients of a Preliminary Objection. In **DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR** the court held that a suit should not be struck out if it discloses even a semblance of a cause of action. The courts jurisdiction is properly invoked and the objections by the 1st respondent should be dismissed with costs. The 2nd and 3rd respondents did not participate in these proceedings. **Determination** The objection by the 1st respondent is largely that the instant petition contravenes the doctrine of *res judicata*, in view of the petitioner having filed Nakuru ELRC Petition E011 of 2026, in which judgment was delivered on 2 April 2026. The 1st respondent thus urges the court that it lacks jurisdiction to hear the petition and that it should be struck out with costs. The petitioner admitted that the instant petition is spent. The petitioner also admitted that the sole issue in his application dated 24 April 2026, seeking to stop the 1st respondent's election, is moot, as the election has taken place. For the petitioner, the sole issue in this case is the 1st respondent's notice of objections. Is the petition filed contrary to the *res judicata* doctrine? The doctrine of *res judicata* is defined under section 7 of the Civil Procedure Act: **No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided** **by such court.** The definition emphasizes that a court should not try any suit or issue that has been directly and substantially addressed by a court of similar jurisdiction. The suit must relate to the same parties under the same title. A final judgment is delivered. Therefore, res *judicata* is not merely a technical rule but a doctrine grounded in public policy. It serves to protect litigants from vexatious litigation, conserve judicial resources, and promote certainty and finality in legal proceedings. This is underscored in **Uhuru Highway Development Limited v Central Bank of Kenya [1999] eKLR.** in **Independent Electoral and Boundaries Commission v Maina Kiai and 5 others [2017] eKLR** affirmed that *res judicata* extends to constitutional litigation, preventing parties from re-litigating issues already settled. The petitioner does not deny that he filed **Nakuru ELRC Petition No. E011 of 2026**. Judgment was delivered on 2 April 2026. In this petition, the 1st respondent, together with Albert Obed Njeru and Registrar of Trade Unions, the 2nd respondent. The petitioner was claiming the following remedies: 1. *Declaration that the 1st and 3rd Respondents’ circulars dated 19th January* *2026 are irregular, unlawful, unconstitutional and hence null and void, ab initio.* 1. *Declaration that the 1st and 2nd Respondents violated the Petitioner’s right to fair administrative action, right to access information, right to equality and fair administrative action.* 2. *An order directing the Respondent to issue a fresh notice of quinquennial conference, between 1st April 2026 and 30th June 2026.* 3. *An order directing the Respondents to make available and serve the Petitioner, with a copy of the updated membership register as per the branches, list of delegates and their contacts, not later than 60 days before the national elections.* 4. *Alternatively, an order nullifying any purportedly held national elections in contravention of Articles 35 and 81 of the Constitution.* 5. *The Respondents to pay damages to the Petitioner, for breach of procedural fairness in the process of organizing the opaque elections.* 6. *Any other suitable reliefs.* 7. *Costs of the Petition.* The petition in **Nakuru ELRC E011 of 2026** was found without merit in the judgment delivered on 2 April 2026. In the instant petition, the 1st and 2nd respondents are the same, with the addition of the Labour Commissioner. The petitioner is seeking the following orders: 1. *A declaration that the Respondent's refusal to disclose essential election information as to the details of the voter register, details of the 1st Respondent’s branches' officials registered extracts, details of ballot paper printing and procurement of other election materials is unlawful, illegal, unfair labour practice and unconstitutional.* 2. *A declaration that the Respondents violated the Petitioners' right to fair administrative action, right to access to information, right to equality and fair labour practice.* 3. *An order directing the Respondents to produce the voter register, extracts of branch officials registered and retained by the 2nd Respondent, details of the procurement of the ballot papers and boxes, information regarding the arrangement of security and facilitation of the returning officer and/or presiding officer.* 4. *An order directing the Respondents to conduct the verification exercise upon producing the voter register and to conduct the national quinquennial within 30 days.* 5. *In the alternative, an order nullifying any purported election and registered extract 1st Respondents' national office done in contravention of Article 35, 41, 47 on non-access to crucial election information, violation of labour rights and administrative action together with violation of principles of elections in Article 81(e) on free, fair and transparent elections.* 6. *An order directing the Respondents to conduct the National quinquennial and/or election within 30 days during daytime between 8:00 am to 5:30 pm from the date of judgment, with production of the following information* 7. *Extracts of all registered branches' officials retained by the 2nd Respondent.* 8. *An accurate voter register received by the 1st Respondent from the branch secretaries. (noting that only 3 and/or 4 delegates are sent as votes from the branches and not the 12 branch officials contained in the registered extract).* 9. *Details of the procurement of ballot papers, how the candidates’ details, including alias names, are captured therein, the quantity, serialisation, and security features contained in the same.* 10. *The information on the procurement of other election materials, such as ballot boxes, their custody and transportation to the voting venue.* 11. *Details of security arrangements for the purpose of the election and their payment.* 12. *The use of indelible ink and polling supplies.* 13. *The issue of facilitation of the returning officer.* 14. *The said election is to be supervised by an independent and impartial officer of the Respondent other than Mr Richard Litaba* 15. *Any other relief, orders and declarations towards achieving the end of justice.* 16. *Costs of this Petition be borne by the Respondents.* In this petition, prayers (2), (3), (4), and (5) are repeated as in the previous petition. The essence of both petitions is the 1st respondent elections. Although the petitioner in the petition **Nakuru ELRC E011 of 2026** had a different 2nd respondent and in this petition a different 3rd respondent, the issue revolves around the single issue of the 1st respondent's elections. Where the petition in **Nakuru ELRC E011 of 2026** was dismissed, and the respondents were directed to issue a fresh notice of its quinquennial conference, the petitioner was also guided to extract the names of the 1st respondent’s branch officials from the register retained by the 3rd respondent, the Registrar of Trade Unions. Hence, filing a new petition in Nairobi rather than Nakuru, where the petitioner moved the court on matters, he ought to have addressed in his previous suit between the same parties, is an abuse of court process. The multiplicity of suits one in Nakuru and the next in Nairobi does not foster public policy, promote certainty and finality in legal proceedings, and is therefore contrary to the *res judicata* doctrine. Indeed, upon the court declining to issue the interim orders sought in the Notice of Motion dated 24 April 2026, the petitioner admitted that this petition and application is moot and overtaken by events. There is nothing to be litigated. The 1st respondent's objections and application of the doctrine of *res judicata* are well-founded. It serves to protect litigants from vexatious litigation, conserve judicial resources, and promote certainty and finality in legal proceedings. **The petition is thus dismissed. The petitioner shall meet costs due to the 1st respondent, which shall be taxed accordingly.** **Delivered in open court at Nairobi, this 18th day of June 2026.** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistants: Nelson Kemboi and Catherine Makau ……………………………………………… and ………………….…………………………...