https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1453

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **PETITION E020 OF 2026** IN THE MATTTER OF TRADE UNION ELECTIONS **AND** IN THE MATTER OF SECTION 4 AND 34 OF THE LABOUR RELATIONS ACT **AND** IN THE MATTER OF THE TRADE UNION ELECTIONS (ELECTIONS PETITION) RULES, 2014 **AND** IN THE MATTER OF KENYA NATIONAL UNION OF TEACHERS CONSTITUTION, RULES AND REGULATIONS **BETWEEN** GEORGE AREK..........................................................................**PETITIONER** **VERSUS** KENYA NATIONAL UNION OF TEACHERS............**1ST RESPONDENT** KNUT ELECTIONS BOARD..........................................**2ND RESPONDENT** JOSEPH MALEL LANGAT.............................................**3RD RESPONDENT** **AND** REGISTRAR OF TRADE UNIONS………………...**INTERESTED PARTY** **RULING** 1. The 1st and 2nd Respondents have raised a Preliminary Objection against both the Petition and the Notice of Motion dated 27th February 2026 on the ground that they offend the doctrine of exhaustion. They contend that Direction 2 of the Employment and Labour Relations Court (Trade Unions Elections Dispute) Procedure and Practice Directions, 2025 was contravened by the failure to join the Returning Officer, being the Labour Officer responsible for the management of the branch elections. They further argue that the 2nd Respondent is a non-entity incapable of suing or being sued and that no proceedings can therefore be sustained against it. The Respondents also aver that the Petition is premature for contravening Direction 5(3)(a) of the Employment and Labour Relations Court (Trade Unions Election Disputes) Procedure and Practice Directions, 2025, which requires a petition challenging the validity of an election to be filed within twenty-one (21) days after the declaration of election results. According to the Respondents, the KNUT-Rarieda Branch Elections scheduled for 6th March 2026 had not been conducted by the time the Petition was filed, thereby rendering the Petition premature. 2. Further, they contend that the Petition contravenes Rule 51(b) and Directions 2 and 6 of the Employment and Labour Relations Court (Trade Unions Election Disputes) Procedure and Practice Directions, 2025, for failure to disclose the venue of the election and the date of declaration of results. Consequently, the 1st and 2nd Respondents urge the court to strike out the Petition on the basis that it does not constitute a proper trade union election petition as contemplated under the Employment and Labour Relations Court (Trade Unions Election Disputes) Procedure and Practice Directions, 2025. 3. The Preliminary objection was canvassed by way of written submissions. 1st *&* 2nd Respondent’s Submissions 1. The 1st and 2nd Respondents submit that the Preliminary Objection is merited as it satisfies the threshold set out in **Mukisa Biscuits Manufacturing Co. Ltd *v* West End Distributors Ltd [1969] EA 696**, namely that it raises a pure point of law capable of disposing of the suit in limine. They assert that non-joinder of the returning officer, being the Labour Officer responsible for management of elections contrary to Practice Directions 2 and 6 is fatal to the Petitioner’s suit and constitutes a pure point of law. In support of this position, they rely on **Bichang’a *&* 2 others *v* Kenya National Union of Teachers (KNUT) *&* 4 others (Petition E007 of 2026 *&* Trade Union Election Petition E008 *&* E009 of 2026 (Consolidated)) [2026] KEELRC 135 (KLR) (28 January 2026) (Ruling),** where the Court stated: *“The Petitioners did not comply with Directions 2 and 6 of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions 2025. Compliance or noncompliance with the Rules is a pure point of law. It does not require the establishment of facts. An objection can be taken to the pleadings already filed and the notice of preliminary objection is sufficient basis to challenge the provenance of a suit that is dead on arrival. One does not need to file elaborate pleadings to have a matter that can be determined in limine in order for the Court to make a determination thereon. That would be a waste of resources and scarce judicial time. The Court thus finds that there is basis for the objections raised and being well founded, the preliminary objection is merited and the result is that the Petitions are all struck out with costs to the Respondents.”* 1. The 1st and 2nd Respondents further submit that the Petition is fatally defective for contravening Directions 5(3)(a) and 6(1)(d) of the Employment and Labour Relations Court (Trade Unions Election Disputes) Procedure and Practice Directions, 2025, which require petitions to be filed within twenty-one (21) days from the date of declaration of election results. They assert that the KNUT-Rarieda Branch elections had not been conducted at the time the Petition was filed and, consequently, the Petition falls outside the scope of disputes envisaged under the said Practice Directions. They therefore urge the court to strike out both the Petition and the Notice of Motion dated 27th February 2026, contending that the suit does not constitute a proper Trade Union Election Petition within the meaning of the Employment and Labour Relations Court (Trade Unions Election Disputes) Procedure and Practice Directions, 2025 and Gazette Notice No. 18142 dated 1st September 2025 as published in Kenya Gazette Vol. CXXVII–No. 258 dated 11th December 2025. Petitioner’s Submissions 1. In response, the Petitioner submits that the Preliminary Objection does not raise pure points of law but is instead founded on contested facts that require ascertainment through evidence. In particular, the Petitioner asserts that the issue of whether the doctrine of exhaustion has been contravened necessitates an examination of facts and evidence. Reliance is placed on the cases of **Mukisa Biscuits Manufacturing Co. Ltd *v* West End Distributors Ltd [1969] 1 EA 696, Attorney General *&* another *v* Andrew Maina Githinji [2016] eKLR, John Musakali *v* Speaker County of Bungoma *&* 4 others [2015] eKLR** and **Oraro *v* Mbaja [2005] 1 KLR 141**, for the proposition that a preliminary objection must consist of a pure point of law arising from the pleadings and argued on the assumption that all pleaded facts are correct, without the need for factual interrogation. The Petitioner therefore submits that the Preliminary Objection fails to meet the threshold established in **Mukisa Biscuit** *(supra)* and urges the court to dismiss it with costs. Disposition 1. The Respondents assert the Petitioners have disregarded Direction 2 of the Employment and Labour Relations Court (Trade Unions Elections Dispute) Procedure and Practice Directions, 2025 in failing to join the Returning Officer. Being the Labour Officer responsible for the management of the branch elections, it is contended he ought to have been joined in the suit as a party. The Respondents assert the Petitioners also have not filed an election petition as no elections had taken place by the time the suit was filed. The Petitioners on their part assert the Respondents have failed to surmount the legal hurdles in bringing the objection within the applicability of the principles in the **Mukisa Biscuits Manufacturing Co. Ltd *v* West End Distributors Ltd** case *(supra).* 2. A trade union election petition is supposed to take the format prescribed in law. In the case of **Sakwa *v* Kenya National Private Security Workers Union *&* 3 others (Petition E010 of 2026) [2026] KEELRC 632 (KLR) (3 March 2026) (Ruling)**, the Court held as follows: *….* *The Court returns that the question that falls for determination is not whether the Petitioner met the threshold for filing a petition but rather, whether the Petition filed complies with the law in filing a petition to challenge a trade union election which this Court holds is* sui generis*. The decision cited by the Petitioners is therefore distinguishable as it does not fit the prism of the* dicta *in the case cited on all fours.* *13. The Court finds that where Parliament has enacted a specific statutory mechanism for resolving a category of disputes, and the Chief Justice has promulgated rules of procedure is to be followed in articulating a dispute under the law in question, that mechanism is mandatory and exclusive. It must be followed by any party wishing to challenge the results of a trade union election and not the mere challenge of process that impugns the illegality or otherwise of a trade union election. The bifurcation is necessary as one challenges the result akin to an election petition whereas the other petition contemplated is where there is no election envisaged due to either lack of union representation in the sector or the like.* *14. This Court is of the firm view that constitutional provisions cannot be called to aid in the circumvention of statutory timelines as was attempted here. There has to be structured pleadings in terms of the law which is comprised in the guidelines issued by the Chief Justice. The Court is minded that there is the requirement for security for costs under section 34(4) of the Labour Relations Act which fact is reiterated in paragraph 5 of the Practice Direction which mandates that an election petition should expressly state that it is brought under section 34(4) of the Labour Relations Act. The Petition should be entitled* ***“Election Petition No.... of a given year****.****”*** *Noting that the Petition herein has not been framed as an election petition and did not include clear pleading of the date of declaration of results, the specific results declared, the structured statutory grounds of challenge and the structured framework for relief sought, the finding of the Court is that this Petition is incompetent, misplaced and incapable of achieving the revocation of the election results.* [Emphasis mine] 1. The Court reiterates that trade union election disputes are in a class of their own. Being *sui generis* in nature, the Petition to challenge the outcome of the trade union election must be in accord with the law. There was a contest as to whether there is remit for a trade union election petition to be filed before the declaration of results. The Court holds that this is a matter for determination in a Petition that is properly framed to determine that question as indeed there will be need to clear this up before the next election cycle of trade union elections in 2031. 2. The finding of this Court is that the Petition filed herein by the Petitioner does not accord with the law on trade union elections. There is no proof of payment of the security deposit required. Having failed to move the Court as required in law, can the present petition be said to be a Petition as contemplated in the Employment and Labour Relations Court (Trade Unions Election Disputes) Procedure and Practice Directions, 2025 or section 34 of the Labour Relations Act? Having failed to articulate an election dispute in terms of the law, the Petitioner’s petition is dismissed albeit with no order as to costs. It is so ordered. **Dated and delivered at Nairobi this 28th day of May 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**