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ELRCStruck OutNot stated in the judgment text (application under certificate of urgency dated 5th September 2024; notice of preliminary objection dated 18th October 2024)· [2025] KEELRC 429 (KLR)

Kenya National Union of Nurses v County Government of Kisii & another (Petition E002 of 2025) [2025] KEELRC 429 (KLR)

Employment and Labour Relations Court of Kenya
19 February 2025
2,315 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out a union's petition for trying to relitigate issues already decided in earlier cases, and ordered the union to pay the other side's costs.

What this practically means

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Executive summary

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The Petitioner, a trade union, filed an application under certificate of urgency dated 5th September 2024 within a constitutional petition, seeking declarations that the Respondents violated members' rights under Articles 27 and 41, certiorari to quash the exclusion of 46 members from reinstatement, orders compelling reinstatement and cessation of discrimination, salary arrears and benefits from December 2020, damages, and costs. The union narrated a nationwide strike from 7th December 2020 over occupational safety concerns, the dismissal of 403 members, a conciliation process recommending reinstatement, and the inexplicable exclusion of 46 members. The Respondents filed a preliminary objection contending lack of jurisdiction, failure to meet the constitutional petition threshold, and abuse of process, noting pending suits including Kisumu ELRC Cause No. E013 of 2021 and consolidated Nairobi ELRC proceedings. The parties canvassed the objection and application by written submissions per the court's directions of 22nd October 2024. The court held the petition was 'the epitome of abuse of court process', noting prior proceedings before the Kisumu and Nairobi ELRC, including Onyango J.'s decision in consolidated Cause No. 731 of 2019. Applying issue estoppel, the court held it was precluded from determining issues already decided, and struck out the petition with costs to the Respondents, the preliminary objection succeeding. Nzioki wa Makau, J. delivered the judgment at Kisumu on 19th February 2025.

Key legal issues

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01

Whether the petition constituted an abuse of court process in light of pending and decided suits over the same matter

Holding

Yes; the petition was struck out as the preliminary objection succeeded on the ground of issue estoppel and multiplicity of suits

Reasoning

The court noted that proceedings over the same matter were already before the Kisumu and Nairobi ELRC, including a decision by Onyango J. in a consolidated Cause No. 731 of 2019 with ten other files. Issue estoppel barred relitigation of findings of fact or law already decided. Despite the Petitioner's contrary assertions, the court found no merit in allowing the petition to continue and struck it out with costs to the Respondents.

p. 5
02

Whether issue estoppel applies to the matters raised in the petition

Holding

The court held that a question of issue estoppel arose and operated to bar determination of the petition's issues

Reasoning

The court invoked the doctrine of issue estoppel, which precludes a party from relitigating a finding of fact or law already decided in a previous case. Because the disputes between the same parties over the dismissals and reinstatement were the subject of prior consolidated ELRC proceedings, this Court could not make any determination on issues already determined there.

p. 5

Legal principles established

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  • The doctrine of issue estoppel precludes a court from determining issues already determined in prior suits between the parties
  • A petition that relitigates matters pending or decided in other suits between the same parties constitutes an abuse of court process and may be struck out

Court orders

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  1. 1.The petition is struck out with costs to the Respondents as the preliminary objection succeeds
Jurisdiction invoked
Article 162(2)(a) of the Constitution; section 12 of the Employment and Labour Relations Court Act (asserted by the Petitioner; the court struck the petition out on abuse-of-process/issue estoppel grounds rather than lack of subject-matter jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya National Union of Nurses v County Government of Kisii & another (Petition E002 of 2025) [2025] KEELRC 429 (KLR)", Case Analysis (2025). Not stated in the judgment text (application under certificate of urgency dated 5th September 2024; notice of preliminary objection dated 18th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/429/eng@2025-02-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.