Kibet & another v Attorney General & another (Petition E205 of 2024) [2025] KEELRC 1318 (KLR)
The bottom line
#Kenya's Employment Court dismissed a challenge to NSSF contribution rates because the same dispute was already before other courts, so employers must keep remitting under the NSSF Act, 2013.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition is an abuse of court process by reason of forum shopping and parallel proceedings
- 2.Whether the petition is res judicata in view of prior and pending proceedings concerning the NSSF Act, 2013
- 3.Whether the petition is sub judice as the substratum of the dispute is pending before the Court of Appeal on remittal from the Supreme Court
- 4.Whether the notice to employers to remit funds under the Third Schedule of the NSSF Act, 2013 is unconstitutional
Key legal issues
#Abuse of court process by parallel proceedings
The petition constituted an abuse of process because the same subject matter was ongoing at the Court of Appeal in Civil Appeal No. E656 of 2022 and a similar petition was pending before the High Court
The respondents argued, and the Court found, that the petitioners were pursuing parallel processes over the same subject matter. The Court relied on the substance-over-form approach in Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga, holding that parallel litigation over the same substratum is an abuse.
Sub judice
The petition was sub judice because the dispute had been remitted to the Court of Appeal by the Supreme Court and remained pending there
The Supreme Court in Kenya Tea Growers Association had remitted the matter to the Court of Appeal. The material before the Court showed the dispute was pending determination there, so the High Court could not entertain the same issues.
Res judicata
The petition was also barred as res judicata, the Court considering that it had already determined the dispute
The respondents contended that the ELRC had already pronounced itself in Nairobi ELRC Petition 38 of 2014 consolidated with Petitions 35, 49 and 50 of 2014, and that the 2nd petitioner had litigated similar issues in Nakuru High Court Petition E019 of 2023. The Court adopted this as a further bar.
Legal principles established
#- A suit whose substance is pending before another court or already determined is barred as sub judice and res judicata and is an abuse of court process
Court orders
#- 1.The petition is dismissed with no costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 19, 20, 21, 22, 165 and 258 of the Constitution of Kenya, 2010 (as invoked by the petitioners)
Relief refused
#Declaration that the decision to issue a notice to employers to remit funds to NSSF under the Third Schedule is inconsistent with Articles 10(1)(b) and (c), 21(1), 230(4), 27, 41 and 43 of the Constitution and null and void
The petition was dismissed as an abuse of process, res judicata and sub judice
Judicial Review Order of Certiorari quashing the implementation/further implementation of the NSSF Act, 2013
The matter is properly pending before the Court of Appeal as remitted by the Supreme Court, and the Court declined to determine the constitutional questions
Costs of the petition borne by the respondent
The Court ordered no costs despite the petitioners' prayer
Costs
The petition is dismissed with no costs (each party bearing their own costs implicitly; 'no costs' as stated).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The material before the Court show that indeed the matter in dispute is pending determination before the Court of Appeal as remitted to it by the Supreme Court.
The instant petition is found an abuse of the Court process, res judicata as well, sub – judice.
The petition is hereby dismissed with no costs, accordingly.
Issues in the judgment
#The Court states 'this Court already determined the dispute' as the basis for res judicata, but the earlier determination was by the Employment & Labour Relations Court and the Court of Appeal; the High Court's own prior involvement is not explained in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibet & another v Attorney General & another (Petition E205 of 2024) [2025] KEELRC 1318 (KLR)", Case Analysis (2025). Petition dated 11.12.2024 (Nairobi, Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1318/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.