Ismax Security Ltd v Bonyi (Appeal E244 of 2025) [2026] KEELRC 2437 (KLR)

that in the second. Thus, those issues should be resolved or adjudicated by a single court. In reply, the respondent deposed that she never gave any instructions for the institution of MCELRC No. E1957 of 2023, and that the said claim, having been instituted without her consent, knowledge, or instructions, is devoid of any legal foundation. At no time has she instructed or delegated to one Tom Nyamosi to act on her behalf in any legal proceedings whatsoever. She is the sole and distinct claimant in MCELRC No E1090 of 2024 pursuing distinct and personal claims against the respondent. The learned magistrate delivered a ruling on the application, finding that the respondent never gave instructions for the filing of MCELRC No. E1957 of 2023, and that there was no contrary evidence that she had given instructions for the filing of the said claim. He proceeded to strike out the respondent in MCELRC No. E1957 of 2023. The appellant submitted that the rationale behind the doctrine of sub judice is to prevent multiplicity of suits, to avoid conflicting decisions by courts of concurrent jurisdiction, and to safeguard the integrity of the judicial process. The Supreme Court in Kenya National Commission for Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR for the proposition that sub judice requires that there must exist more than one suit over the same subject matter, one suit must have been instituted before the other, both suits must be pending before courts of competent jurisdiction and the suits must involve the same parties or parties litigating under the same title and raise substantially the same issues. The record before the trial court demonstrated that MCELRC No. E1957 of 2023 had been filed before MCELRC No E1090 of 2024, and it was demonstrated that the parties were substantially the same, with the ELRC NAIROBI JUDGMENT APPEAL NO. E244 OF 2025 2

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grievances advanced in both proceedings arising from the same employment relationship. Both claims sought to determine substantially similar questions. The duty court was therefore duty-bound to uphold the doctrine of sub judice and prevent parallel prosecution of the subsequent suit. No submissions for the respondent. Determination The issue before the trial court was single. That the respondent’s suit was filed contrary to the sub judice rule. There existed Nairobi MCELRC No. E1957 of 2023, filed before her claim, in Nairobi MCELRC No. E1090 of 2024. These facts are not denied. The only issue raised by the respondent is that no authority was granted to file the initial suit in Nairobi MCELRC No. E1957 of 2023. The doctrine of sub judice is well addressed in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR). Further, in Republic v Kariuki & 3 others; Law Society of Kenya (Ex parte Applicant) [2020] KEHC 10142 (KLR) held that section 6 of the Civil Procedure Act requires that the court should strike out a suit that is filed as a replica of others already in court. The principles to guide the court are that: a) Both suits challenge the same decision. b) The prayers sought in both suits are the same. c) Since both suits cite similar issues, the decision of the first suit should be binding on those issues, and it need not be tried again. d) If the plea in the first suit succeeds, then it will render the second case res judicata. Thus, this becomes a useful basis for analysing any subsequent suit relating to the same parties, issues, reliefs, and facts addressed on the merits; it ELRC NAIROBI JUDGMENT APPEAL NO. E244 OF 2025 3

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would be unnecessary to hear the second suit. The rationale is the doctrine of sub judice: when an issue is pending before a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit is pending. In such a situation, the subsequent court may order a stay of proceedings at any stage. In this case, the respondent is listed as a party in Nairobi MCELRC No. E1957 of 2023. If there was no authority granted to be joined as a claimant therein, the respondent was not to file a new suit but to settle under such initial suit and extricate herself from it. Filing a new suit over the same subject matter and before the same court is unnecessary multiplicity of suits. Such would lead to possible embarrassment to the courts in giving different orders and directions on the same subject matter. At the same time, the respondent’s attention to the initial suit has been drawn. The application dated 26 March 2025 had a good foundation. The claim under Nairobi MCELRC No. E1090 of 2024, in view of Nairobi MCELRC No. E1957 of 2023, is filed contrary to the sub judice rule. The appeal is allowed; Nairobi MCELRC No. E1090 of 2024 is hereby dismissed. Costs of the appeal to the appellant. Delivered in open court this 31st day of August 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi ……………………………………………… ELRC NAIROBI JUDGMENT APPEAL NO. E244 OF 2025 and …………………………………..……… 4

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