Opado v Steel Makers Group Ltd (Employment and Labour Relations Cause E048 of 2025) [2026] KEMC 359 (KLR)
The bottom line
#A Mombasa court paused an employee's duplicate claim because his union had already sued over the same dispute, but refused to kill the case outright.
What this practically means
#Executive summary
#Key legal issues
#Sub judice / risk of conflicting decisions
The application is not frivolous: the individual claim materially overlaps the pending union collective suit, creating a risk of conflicting decisions between the ELRC and the lower court
The claimant admits reporting his grievance to KEWU and being grievant no. 66 in ELRC E089 of 2025. He produced no notice formally opting out or withdrawing from the union suit. The reliefs sought in both causes are almost on all fours, with only slight quantum variations, over the same 30-year employment. A stay, not striking out, best avoids conflict while preserving access to court.
Whether striking out was the appropriate remedy
No - striking out is a draconian remedy to be applied sparingly; a stay is the proportionate order
The court held it has jurisdiction over the dispute and the suit is not barred. The key consideration was not to lock the claimant out of court while giving deference to the ELRC, whose decisions bind this court. Staying the claim minimises conflicting decisions without prematurely terminating a claim with substantial triable issues.
Whether the claimant could be bound by the union's representative suit
There is a basis to argue a representative suit cannot bind an individual who gave no express written authority, but the claimant had not formally opted out of the union suit
The claimant asserted KEWU never consulted him or sought consent before including him in the collective claim, and the union was unresponsive for over 13 months. Rule 9 of the ELRC (Procedure) Rules supports the argument that unconsented representation does not bind an individual. However, the claimant filed no notice of opt-out or withdrawal in ELRC E089 of 2025.
Legal principles established
#- A representative suit cannot bind an individual claimant who did not give express written authority or consent to be included in the representative suit
- Where a parallel collective suit on substantially the same subject matter is pending before a superior court, a lower court should stay the later individual suit rather than strike it out, to avoid conflicting decisions
Court orders
#- 1.The claimant's suit before the Magistrates' Court is stayed (rather than struck out)
- 2.The suit to be mentioned periodically after every 4 months for an update on the progress of the ELRC union suit ELRC E 089 of 2025 Mombasa
- 3.Costs of the motion shall be in the cause
- Jurisdiction invoked
- Magistrates' Courts jurisdiction over employment and labour relations claims pursuant to Gazette Notice No. 6024 of 22nd June 2018 (claims where gross monthly remuneration does not exceed KES 80,000/=); Section 6 of the Civil Procedure Act (sub judice)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Opado v Steel Makers Group Ltd (Employment and Labour Relations Cause E048 of 2025) [2026] KEMC 359 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 25/3/2026 in the claimant's cause). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/359/eng@2026-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.