REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E225 OF 2025
(Before Hon. Justice Dr. Jacob Gakeri)
EROS WAMBUI WANJIKU & 3 OTHERS.………………..… PETITIONER
VERSUS
HON. OMBOKO MILEMBA & ANOTHER……..….……...... RESPONDENT
RULING
The Petitioners filed the instant petition on 29th October, 2025 seeking several reliefs including an order to the 1st Respondent to vacate the office of the National Chairperson of the 2nd Respondent, the 2nd Respondent be compelled to organize and conduct elections for the position of chairperson Secretary General with immediate effect and a declaration that the 1st Respondent was unlawfully holding two full-time engagements among others.
After filing a Notice of Appointment, Counsel for the Respondents filed a Notice of Preliminary Objection dated 28th November, 2026 on the grounds that:-
1. The issues canvassed in support of the Petition were directly and substantially in issue in NAIROBI ELRC Petition Non. 83 of 2017 Patrick Njuguna & 7 others v Wilson Sossion and 3 others (2019) KEELRC 727 (KLR) and were thus res judicata.
2. The Petition was sub judice NAIROBI ELRCC 1 No. E257 of 2025 Yvonne Mutindi Musyoki and William v KUPPET & Hon.Omboko Mitemba pending determination.
3. The court had no jurisdiction by dint of the provisions of sections 6 and of the Civil Procedure Act.
On 18th March, 2026, Counsels agreed that the Preliminary Objection be canvassed by way of written submissions and directions to that effect were given and a ruling slated for 27th April, 2026.
Applicant’s Submissions
1st and 2nd Respondent’s Submissions
As to whether the Petition is Res judicata, Reliance was placed on the decision of the Supreme court in Kenya Commercial Bank Ltd v Muiri Coffee Estate Ltd & 3 others (2016) KESC 6 (KLR) on the essence of res judicata, to urge that the instant Petition was res judicata Patrick Njuguna & 7 others v Wilson Sussion & 3 others (2019) KEELRC 727 (KLR) in that the two cases relate to serving as a member of parliament and being an official of a trade union.
Counsel submitted that the instant petitioners were litigating public rights and that subject matter was similar citing the sentiments of the court in John Florence Martime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others (Supra).
As to whether the instant petition was sub judicata Musyoki & another v Mitemba & 2 others (2026) KEELRC 200 (KLR) Counsel submitted that the elements in KNCHR VALG (2026) KESC 54 (KLR) had been met as the suit was filed earlier and both suits are pending determination.
Counsel urges the court to find that the instant suit was res subjudice the earlier suit.
Overall, Counsel urged the court to dismiss the petition with costs.
Analysis
It is common ground that the Respondent is contesting the court’s jurisdiction to hear and determine the instant suit on the grounds of res judicata and sub judice. As exquisitely captured by Nyarangi J A in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) eKLR;
“Jurisdiction is everything and without it a court has no power to make one more step…”
Similarly, in Lemita Ole Lemein v Attorney General & 2 others Karanja J A emphasized that:
“In my view, jurisdiction is primordial and must exist right from the filing of the case to determination. The issue of jurisdiction need not be raised by the parties to a suit for the court to address its mind to it. It is incumbent upon every judicial and quasi-judicial imbunal or court to satisfy itself that it has jurisdiction in a matter before settling down to hear it…”
Jurisdiction is foundational in the administration of justice and being the pith and substance of the Respondent’s Notice of Preliminary Objection, the court is satisfied that it meets the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 as articulated by Law J A and Sir Charles Newbold P.
Concerning Res judicata, the applicable principles are well settled. Section 7 of the Civil Procedure Act, provide:
“No Court shall try any suit or issue that has already been directly and substantially in issue in a former suit between the same parties or between parties under whom they claim, litigating under the same title in a court competent to try such subsequent suit in which such issue is raised and has been heard and finally determined by such court”
This provision bars the Court from hearing and determining suits or issues that have already been heard and finally determined.
Res judicata is a bar to subsequent proceedings involving the same issue as had been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives. Additionally, the principle of res judicata applies to all cases and it is not a technically see John Florence Maritime Services Ltd v Cabinet Secretary Transport and Infrastructure & 2 others (2015) KECA 472 (KLR).
We elements or requirements of res judicata have been aptly captured in countless decision of superior courts.
For a suit to be ………………… as being res judicata an earlier decision, it must be shown that:
(a) The suit or issue was directly and substantially in issue in the former suit.
(b) That the former suit was between the same parties or parties under whom they or any of them claim.
(c) Those parties were litigating under the same title.
(d) The issue was heard and finally determined.
(e) The court that formerly heard and determined the issue was competent to by the subsequent suit or the suit in which the issue is raised.
These elements must be satisfied as they are rendered in conjunctive terms.
In independent Electoral and Boundaries Commission v Maina Kiai & 5 others (2017) eKLR the court stated:
“… Res judicata is a matter properly to be addressed in limine as it does possess jurisdictional consequences because it constitutes a statutory peremptory preclusion of a certain category of suits…”
See Uhuru highway Development Co Ltd v Central Bank of Kenya (1999) eKLR, Henderson v Henderson (1843) 67er 313. In Patrick Njuguna & 7 others v Wilson Sossion & 3 others and Kamunya & others v. Pioneer General Assurance Society Ltd (1971) E.A 263 in John Florence Mantime Services Ltd & another v. Cabine Secretary for Transport and Infrastructure & 3 others (2015) KECA 472 (KLR) the Court of Appeal expressed itself as follows;
“Simply put res judicata is essentially a bar to subsequent proceedings involving same issue as had been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives
…The doctrine of res judicata has two main dimension: cause of action res judicata and issue res judicata Res Judicata based on accused of action, arises where the cause of action in the latter proceedings is dentical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter.
Case of action res judicata extends to a pant which might have been made but was not raised and decided in the earlier proceedings.
In such a case the bar is absolute unless fraud or collusion is alleged. Issue res judicata may arise where a particular issue farming a necessary ingredient in a cause of action has been litigated and decided and is subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant and one of the parties seeks to re-open that issue.”
(Consolidated with Nairobi Petition No. 28 of 2018, the Employment and Labour Relations Court found that there was no conflict or unconstitutional in the 1st Respondent holding the position of Secretary General of KNUT and serving as a member of parliament.
In Patrick Njuguna & 7 others v Wilson Sossion & 7 others (2019) KEELRC 272 (KLR) the Petitioner sought the following Orders:
(a) A declaration be and is hereby issued that the 1st Respondent is unconstitutionally and illegally holding the position of Secretary General of KNUT.
(b) A declaration be and is hereby issued that the 1st Respondent is unlawfully holding the two full time jobs.
(c) The 1st Respondent be ordered to vacate the office of Secretary General of KNUT.
(d) The 2nd Respondent be ordered to organize and conduct elections of the positions of Secretary General with immediate effect.
(e) The Respondents, be ordered is pay costs of this Petition and interest thereon.
(f) Such other orders as the court shall deem fit.
The basis of the Petition was that the 1st Respondent who was a re-elected as Secretary General of KNUT on 4th March, 2016 for a term of 5 years had been nominated as a member of parliament in August 2017.
In petition 26 of 2018 the Petitioner prayed for;
(a) A declaration that a nominated member of parliament was not supposed to any other public office and was barred from participating in any other gainful employment.
(b) A declaration that a nominated member of parliament (state officer) was ineligible to hold the office of Secretary General of the Union.
(c) A declaration that a state officer other than a Member of Parliament was ineligible for election in any trade union.
(d) A declaration that the 1st Respondent should be held accountable for holding the office of Secretary General of a union and surcharged for earning tax payers money for being a nominated member of parliament.
(e) An order restraining the 1st Respondent from assuming duties as Secretary General of the 2nd Respondent and restraining the 2nd Respondent from remitting remuneration to the 1st Respondent.
(f) Costs of the petition.
The court addressed four (4) issues on
(i) whether the constitution prohibited the 1st Respondent from holding the two offices at the same time,
(ii) whether the Petitioners would be Prejudiced by his holding of the two positions, ventilate the grievance or it was premature and entitlement to the reliefs sought.
Although ELRC Petition No. 83 of 2018 was not prosecuted ELRC Petition No. 180 of 2018 was and the court made finding and holdings in relation to the alleged two jobs, eligibility of member of parliament to hold a union office and conflict of interest.
The Conflict-of-Interest Act, 2025 neither changed the relevant provisions of the Constitution of Kenya relating to state officer nor the provisions of the Leadership and Integrity Act.
In the courts view, the gravamen of the petitioner’s case was the subject matter of ELRC Petition No. 83 of 2018 consolidated with ELRC Petition No. 28 of 2018.
While the parties were litigating under the same title, the issues were heard and determined finally, and the court that heard and determined the suit had jurisdiction to hear and determine the instant petition, the parties.
From the foregoing, it is clear that a core element of issue res judicata has not been demonstrated and ELRC Petition No. E225 of 2025 cannot, in the Court view be adjudged as res judicata ELRC Petition No. 83 of 2018 Consolidated with ELRC Petition.
Concerning sub judice, the Respondent’s contention is that the instant Petition was sub judice ELRC No. E 253 of 2025.
It is common ground that the above Petition was filed on 28th March, 2025 against the 1st Respondent the 2nd Respondent one Hon. Catherine Nanjala Challenging their being members of Parliament and union officials.
The claimants allege that by holding the dual offices, the Respondents were conflicted as state officers, citing the decision of Linet J (as she then was) in 2016 where the learned judge barred a member of parliament from contesting for an office in KUPPET.
BY AN APPLICATION DATED 30TH May, 2025, the Respondent prayed for the striking out of the suit but the trial court declined to strike out the suit.
Section 6 of the Civil Procedure Act, provides;
“No court shall proceed with the trial of any suit or proceeding 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 were such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
It is noteworthy that ELRCC No. E253 of 2025 was last in court on 29th January, 2025 when the ruling dated 30th May, 2025 was delivered and was scheduled for a mention on 25th March, 2026 a for pretrial conference which demonstrates beyond peradventure that the suit was alive.
It therefore follows that the instant petition is sub judice ELRCC No. E253 of 2025 and ought to be stayed in accord with the provisions of section 6 of the Civil Procedure Act.
The upshot of the foregoing is that ELRC Petition No. E225 of 2025 herein is stayed pending the hearing and determination of ELRCC No. 253 of 2025.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 13TH DAY OF APRIL, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In 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.
DR. JACOB GAKERI
JUDGE
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