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ELRCPartially AllowedNot printed in the judgment text (Motion dated 6 September 2024; related Causes listed as Milimani ELRC E458 of 2022 among others)· [2025] KEELRC 962 (KLR)

Kitui v Winguard Services Ltd (Miscellaneous Application E263 of 2024) [2025] KEELRC 962 (KLR)

Employment and Labour Relations Court
27 March 2025
1,306 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court consolidated 71 similar dismissal cases into one test suit to decide fault first, but excluded some cases entirely.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Naivasha (Radido Stephen, J) ruled on a Motion dated 6 September 2024 by an employer seeking consolidation of 71 Milimani ELRC Causes arising from termination of guarding contracts, and selection of Milimani ELRC E1344 of 2022 as a test suit. The applicant argued the Causes arose from a single decision terminating employees' contracts upon expiry or termination of its contract with the Kenya Revenue Authority, shared the same facts and legal questions, and that consolidation was needed for consistency. Benard Ochola (Claimant in E458 of 2022) and counsel Wetaba for nearly 60 Claimants opposed, asserting distinct contracts, differing salaries and workstations, causes at different trial stages, and abuse of process; Ochola also challenged the authority of the deponent to the supporting affidavit. The applicant cited the Supreme Court's statement in Law Society of Kenya v Centre for Human Rights & Democracy on the purpose of consolidation. The Court found the Causes were based on the same facts and raised similar questions of law and that liability should first be determined in a test suit. However, it tailored the relief: Causes where hearings had not started were consolidated only for determining liability, and were stayed pending that determination; Causes involving Claimants not deployed to guard Kenya Revenue Authority premises were to proceed apiece. The parties were directed to file a status schedule and agree on a test suit before the Presiding Chief Magistrate, with a mention on 9 April 2025. Costs were in the cause.

Key legal issues

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01

Whether the Causes should be consolidated

Holding

Consolidation for purposes of determining liability only, through a test suit, was appropriate for Causes where hearings had not started; other Causes were to proceed separately

Reasoning

The Causes emanated from a single decision by the applicant to terminate employees' contracts upon expiry or termination of its contract with the Kenya Revenue Authority. They are based on the same facts and raise similar questions of law. Determining liability first in a test suit would save magistrates from conflicting conclusions and save judicial time. However, Causes where hearings had commenced or which involved differently situated Claimants were excluded, and the parties were to agree on the test suit.

p. 5
02

Purpose of consolidation

Holding

Consolidation is to facilitate efficient and expeditious disposal and a fair dispensation of justice, not to advantage or disadvantage any party

Reasoning

The applicant relied on the Supreme Court's pronouncement in Law Society of Kenya v Centre for Human Rights & Democracy, which the Court applied in accepting that consolidation should serve efficiency and fairness rather than confer tactical advantage. This supported the balanced order: consolidation for liability only, with other Causes left to proceed individually.

p. 4

Legal principles established

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  • Where multiple causes arise from the same facts and raise similar questions of law, the common question of liability should first be determined in a test suit to avoid conflicting conclusions and save judicial time

Court orders

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  1. 1.The parties to prepare and file before the Chief Magistrates Court a schedule of all pending Causes and status before the Chief Magistrates Court within 15 days from today
  2. 2.The parties to agree on the test suit file/Cause before the Presiding Chief Magistrate within 15 days from today
  3. 3.All pending Causes where a hearing has not started are consolidated for purposes of determining liability (whether there was unfair termination of employment and or breach of contract) in the test suit Cause
  4. 4.Those Causes are stayed pending the determination of liability in the test suit Cause
  5. 5.The Causes where the Claimants were not deployed to guard Kenya Revenue Authority premises to proceed apiece without consolidation
  6. 6.The parties to appear before the Presiding Chief Magistrate on 9 April 2025
  7. 7.Costs of the application in the cause
Jurisdiction invoked
Inherent powers of the Employment and Labour Relations Court to consolidate causes before it (no specific statutory provision is quoted in the judgment)

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, "Kitui v Winguard Services Ltd (Miscellaneous Application E263 of 2024) [2025] KEELRC 962 (KLR)", Case Analysis (2025). Not printed in the judgment text (Motion dated 6 September 2024; related Causes listed as Milimani ELRC E458 of 2022 among others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/962/eng@2025-03-27

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