https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1927

Awange & 5 others v County Labour Officer, Kisumu & 16 others (Petition E004 of 2026) [2026] KEELRC 1927 (KLR) (7 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1927 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Petition E004 of 2026 Nzioki wa Makau, J July 7, 2026 IN THE MATTER OF THE ALLEDGED CONTRAVENTION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 10, 35, 38, 81, 86 & 47 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF SECTION 34 OF THE LABOUR RELATIONS ACT, 2017 AND SECTION 12 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACТ AND IN THE MATTER OF RULE 7(1) OF THE EMPLOYMENT AND LABOUR RELATIONS COURT (PROCEDURE) RULES 2024 AND IN THE MATTER OF KISUMU KUPPET BRANCH ELECTION HELD ON THE 11TH JANUARY 2026 Between Zablon Awange 1st Petitioner Pancras Owido Gundo 2nd Petitioner Felix Oloo 3rd Petitioner Wycliffe Okumu 4th Petitioner Jackline Agoch 5th Petitioner Sarah Opere. 6th Petitioner and County Labour Officer, Kisumu 1st Respondent Kenya Union Of Post Primary Education Teachers (kuppet) 2nd Respondent Registrar Of Trade Unions 3rd Respondent George Osura 4th Respondent James Odiwuor Angara 5th Respondent Robert Onyando Ogaja 6th Respondent Onyango John Mark Apondi 7th Respondent Dorris Adhiambo 8th Respondent Simon Atito Odhiambo 9th Respondent Cavin Obuoyu Mkuwa 10th Respondent George Otieno Okeyo 11th Respondent India Jacqueline 12th Respondent Nancy Andesia 13th Respondent Irine Auma Hawi 14th Respondent Winnie Akoth Awuor 15th Respondent Akoo Elizabeth Adhiambo 16th Respondent Chrispine Okode 17th Respondent Judgment 1.The Petitioners instituted this suit via an Amended Petition dated 5th March 2026, averring that they are members of the 2nd Respondent, the Kenya Union of Post Primary Education Teachers (KUPPET), Kisumu Branch, who offered themselves as candidates for various union leadership positions during the branch elections held on 11th January 2026. They state that they contested for the positions of Executive Secretary, Secretary Secondary, Vice Chairman, Organizing Secretary, Branch Gender Secretary and Assistant Secretary for Junior Secondary Schools. 2.Their case is that following the elections the 1st Respondent announced only the successful candidates without disclosing the votes garnered by the unsuccessful contestants or the detailed election results. The Petitioners contend that despite making several requests to the 1st Respondent, including through a letter dated 13th January 2026, seeking disclosure of the election results and furnishing of related electoral materials, the requested information was not furnished. 3.According to the Petitioners, the elections were required to be conducted in accordance with the Constitution and Rules of the 2nd Respondent but were instead marred by irregularities and electoral malpractices. They contend that the 1st Respondent's refusal to disclose the election results and electoral records rendered the entire process opaque, unverifiable, unaccountable and unconstitutional. They further assert that the withheld information constituted the only basis upon which they could assess and, if necessary, challenge the conduct and outcome of the elections. Consequently, they maintain that the non-disclosure denied them an opportunity to invoke the available grievance mechanisms and meaningfully contest the election results. 4.The Petitioners further assert that the Respondents' actions infringed their constitutional and statutory rights. They allege violations of Articles 10, 35, 38, 47, 81 and 86 of the Constitution by failing to uphold the national values of transparency and accountability, denying them access to information necessary to protect their rights, limiting their political rights within the trade union, denying them fair administrative action, and conducting an electoral process that was neither transparent nor verifiable. They also rely on the provisions of the Fair Administrative Action Act, the Access to Information Act, the Labour Relations Act, the Labour Institutions Act, and the Constitution and Rules of the 2nd Respondent, which they contend require transparency, compliance with union rules, and disclosure of information necessary to facilitate the exercise of members' rights. 5.Consequently, the Petitioners seek the following reliefs:i.A declaration that the Respondents' actions are in violation of the Petitioner's right to free and fair elections as envisaged under Article 81 of the Constitution of Kenya;ii.A declaration that the elections conducted by the 1st Respondent on the 11th January 2026 are null and void;iii.An order directing the 1st Respondent to conduct a fresh election in accordance with the rules and Constitution of the 2nd Respondent;iv.Costs of the Petition; andv.Any other orders that the Honourable Court may deem just and fit to grant. 6.In reply and response to the Petition, the 1st and 3rd Respondents filed a replying affidavit sworn by Ms. Edna Isendi, a Labour Inspector II at the Ministry of Labour and Social Protection and the Deputy Presiding Officer during the elections held on 11th January 2026. From the outset she emphasizes that the elections were free and fair. Particularly, she depones that on the election day the process began by the dissolution of the outgoing officers’ official tenure. This was followed by the respective camps “Team Teachers” “Team Oxygen” and “Team Independent” nominating 3 agents to oversee the verification in addition to the pre-existing 4 agents. She depones that thereafter the candidates were allowed to enter the polling venue accompanied by their proposers and seconders, who also served as their agents. She further states that all voters were subjected to a verification exercise to confirm their membership of the union before being permitted to vote. Thereafter, she avers that voting started with the agents going first, then the candidates followed by the general KUPPET membership. At the end of the voting exercise at 6.00pm she avers that the Presiding Officer declared the election closed, sealed the apertures of the ballot boxes and invited all agents to verify the used and unused ballot papers, before counting could begin. After this counting ensued in the presence of all aspirants with each agent per candidate helping in the counting while the others observed. At the conclusion of counting, she depones that each candidate’s votes were noted down with their respective agents appending their signatures acknowledging the votes garnered. According to the deponent, the votes from the two polling streams were then consolidated into the final declaration form, although most agents declined to sign it after realizing that their respective candidates had lost. She further states that the Presiding Officer publicly declared the results for every elective position by announcing the candidates' names, the number of spoiled ballots, the total votes cast and the votes received by each candidate before declaring the winners. She adds that by that stage, most unsuccessful candidates had already left the venue after learning of the results through their agents. 7.In light of the foregoing, the deponent denies the allegations that the elections were unverifiable or unaccountable. She further avers that the 1st Petitioner visited the Labour Office and was furnished with a copy of the report submitted to the Registrar of Trade Unions. She also states that upon receipt of the Petitioners' letter dated 13th January 2026 requesting election information, the County Labour Officer transmitted the election results, including the votes garnered by each candidate, to the Registrar of Trade Unions via WhatsApp. It is therefore the position of the 1st and 3rd Respondents that no election information was withheld from the Petitioners, and they urge the Court to dismiss the Petition. 8.The 2nd Respondent opposed the Petition through a replying affidavit sworn by its Secretary General, Mr. Akello M.T. Misori. He maintains that the KUPPET Kisumu Branch elections were conducted in accordance with the Union's constitution, rules and regulations and that the successful candidates were duly declared. He further depones that the elected officials, being the 4th to 17th Respondents, have since been registered as officials of the Kisumu Branch. According to him, the Petitioners have not adduced any evidence of electoral malpractice or irregularities but have instead relied on unsubstantiated allegations. In particular, he notes that they have not produced any results or reports from their agents disputing the declared outcome or supporting the allegations of electoral impropriety. He therefore contends that, since the elected officials have already assumed office, they should be allowed to continue discharging their mandate so as to avoid a leadership vacuum. Consequently, he urges the Court to dismiss the Petition with costs. 9.Similarly, the 4th to 17th Respondents filed a replying affidavit sworn by the Mr. Wyclife Okumu the 4th Respondent. They reiterate that the elections were lawfully conducted and substantially adopt the position taken by the 2nd Respondent. They further contend that the Petition was only instituted because the Petitioners were dissatisfied with the outcome after losing the elections. They accordingly pray that the Petition be dismissed with costs. 10.The Petition was thereafter canvassed by way of written submissions. Petitioners’ Submissions 11.The Petitioners submit that the Petition meets the threshold of a constitutional petition as it specifically identifies the constitutional provisions violated, namely Articles 38, 81 and 86 of the Constitution, and sets out the manner in which those rights were infringed. They contend that the elections failed to meet the constitutional standards of being free, fair, transparent and administered in an impartial, neutral, efficient, accurate and accountable manner as required under Article 81. They further argue that the voting and counting processes were neither verifiable nor free from electoral malpractice as contemplated under Article 86. Specifically, they point to the fact that the 1st Respondent announced only the successful candidates and the votes they garnered while withholding the votes cast in favour of the unsuccessful candidates, despite a formal request made through the letter dated 13th January 2026. They contend that the information was only disclosed upon the filing of the replying affidavits, thereby denying them an opportunity to verify the integrity of the electoral process and pursue the available dispute resolution mechanisms in a timely manner. The above notwithstanding, they assert that the documents attached to the replying affidavits also disclose irregularities. They draw attention to the election’s summary report annexed as “E-12” to the 1st Respondent’s replying affidavit in which there is a variation in the number of booklets printed for the different elective positions without any explanation as to the variances, asserting that such discrepancies open the door to electoral malpractice. Furthermore, they point out that the office of the treasurer recorded the highest votes cast but used the same booklets as other positions with lower voter turnout. Conversely, they contend that the office of Third Assistant Secretary recorded fewer votes despite utilising more ballot booklets. They assert that these discrepancies raise legitimate concerns regarding the integrity of the electoral process. In support of their argument, the Petitioners rely on the decision in Anarita Karimi Njeru v Republic [1979] eKLR, where the Court held that a party seeking constitutional relief must plead with reasonable precision the constitutional provisions infringed and the manner of their infringement. 12.They further submit that the Petition complies with Rules 4 and 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules), which prescribe the form and contents of a constitutional petition. Accordingly, they urge the Court to find that the Petition meets the requisite constitutional threshold. 13.On locus standi, the Petitioners submit that they have the requisite standing because they were candidates in the impugned branch elections and therefore have a direct interest in the outcome. They further assert that Articles 22 and 258 of the Constitution have considerably broadened the doctrine of standing by allowing any person acting in their own interest, in the interest of others, or in the public interest to institute constitutional proceedings. To reinforce this position, the Petitioners rely on the case of Michael Osundwa Sakwa v the Chief Justice and President of the Supreme Court of Kenya [2016] eKLR, where the Court observed that the Constitution has greatly relaxed the rules on standing and opened the doors of the courts to any person with bona fide grounds for alleging a violation or threatened violation of the Constitution. In view of the foregoing, they urge the court to declare the elections null and void and to order the 1st Respondent to conduct fresh elections. 1st and 3rd Respondents’ Submissions 14.On their part the 1st and 3rd Respondents for submit that the elections were free, fair and conducted in accordance with the KUPPET Constitution, its regulations, the Labour Relations Act and the Constitution of Kenya. They assert that the Petitioners’ agents voluntarily left the polling venue before the tallying process was completed and cannot therefore complain that they were not informed of the election results. They further submit that the alleged failure to announce the results in the Petitioners' presence is not, of itself, sufficient to invalidate the elections in the absence of proof that the it affected the outcome. In support of this proposition, they rely on Industrial Court at Nairobi, Cause No. 1650 of 2011 between Aloise A. Otiende v Boniface M. Munyao & another (unreported), where the Court held that elections should not be invalidated on account of minor procedural breaches that do not affect the results. 15.The 1st and 3rd Respondents also deny withholding the election results. They submit that following the 1st Petitioner's request contained in the letter dated 13th January 2026, the results showing the votes garnered by each candidate were transmitted to him via WhatsApp and that he was subsequently invited to collect hard copies. They therefore contend that the Petitioners deliberately failed to disclose this fact to the Court in an attempt to invalidate an otherwise lawful election. Finally, they submit that no constitutional violation has been established, relying on the decision in the case of Ole Lempaka v Komen & others [2008] eKLR for the proposition that allegations of breaches of electoral law or malpractice must be proved by evidence. On costs, the 1st and 3rd Respondents submit that costs should follow the event and accordingly pray that the Petition be dismissed with costs. 2nd and 4th-17th Respondents’ Submissions 16.The 2nd and 4th-17th Respondents submit that the Petitioners have failed to demonstrate any violation of their constitutional rights. They assert that the Petition is speculative, unsupported by evidence and does not establish any nexus between the constitutional provisions relied upon and the alleged infringements. They contend that under sections 107 and 109 of the Evidence Act, the burden of proof rests upon the party asserting a fact. In support of this proposition, they rely on the case of Leonard Otieno v Airtel Kenya Limited [2018] eKLR, where the Court held that constitutional violations must be supported by clear evidence and cannot be determined in a factual vacuum. The Respondents further rely on Anarita Karimi Njeru v R [1979] KLR 154, for the principle that a constitutional petition must identify with precision the constitutional provisions alleged to have been violated and the manner of their infringement. They also cite the case of the Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, where the Supreme Court stated:“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance.’’ 17.Concerning the elections being free and fair, the 2nd and 4th-17th Respondents submit that the elections were conducted in accordance with Articles 13 and 14 of the KUPPET Constitution, as well as sections 4(2) and 34 of the Labour Relations Act, which require trade union elections to be conducted in accordance with the union's registered constitution. Just like the other Respondents, they submit that the elections met the constitutional standards of being free and fair under Article 81 of the Constitution. In this regard they rely on the case of Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) (Presidential Election Petition 1 of 2017) [2017] KESC 42 (KLR), where the Supreme Court held that elections must among others be: transparent and administered in an impartial, neutral, efficient, accurate and accountable manner. They contend that the elections were conducted in an orderly and transparent manner, with candidates and their agents participating throughout the verification, voting and tallying processes. They maintain that there was no ballot stuffing or other irregularity, as the entire exercise was conducted under the supervision of candidates' agents and security personnel. 18.They further submit that the Petitioners have not proven electoral malpractice as was held in Raila Odinga v IEBC & 3 others [2013] eKLR and Raila Odinga, Martha Karua & 5 others v William Ruto, Rigathi Gachagua & 9 others, Presidential Election Petition No. E005 of 2022 (Consolidated) [2022] KESC 56 (KLR), where the Supreme Court held that allegations such as ballot stuffing and fraud require strict proof and cannot be founded on speculation or hearsay. 19.The 2nd and 4th to 17th Respondents therefor urge the court not to interfere with the union’s elections absent breach of the law or the union constitution. They rely on the cases of Francis Wanderi & others v Albert Njeru & Registrar of Trade Unions [2017] eKLR, Jophinus Musundi & others v Kenya National Union of Nurses & another [2016] eKLR and George Ondiege & others v Albert Obed Njeru/KUDHEIHA Workers & others [2017] eKLR, where the courts declined to interfere with trade union elections absent proof of illegality. They also rely on Wavinya Ndeti v Independent Electoral Boundaries Commission & 4 others [2013] eKLR, for the proposition that minor irregularities do not invalidate an election unless they substantially affect the result. Further reliance is placed on Cheruiyot v Independent Electoral Committee (IEC) Kenya Medical Practitioners, Pharmacists and Dentists' Union (KMPDU) & another (Employment and Labour Relations Cause E070 of 2025) [2026] KEELRC 389 (KLR), where the Court reiterated that judicial intervention in the affairs of trade unions is only warranted where there is a demonstrated breach of the law or the union constitution. 20.As to whether the Petitioners are entitled to the reliefs sought the 2nd and 4th-17th Respondents submit that the Petition lacks specificity and precision. In support, they cite the decision in the case of Meru Cultural Center & 17 others v Kisima Farm Limited & 24 others [2023] KEELC 19863 (KLR), where the Court struck out a constitutional petition for failure to plead constitutional violations with the precision required under Anarita Karimi Njeru (supra). They also rely on the case of Matendechele v Sunstar Hotel Nairobi [2023] KEHC 1921 (KLR) for the proposition that constitutional petitions are determined on a balance of probabilities and that the petitioner bears both the legal and evidential burden of proof. Finally, they rely on Ben Njoroge & another v Independent Electoral and Boundaries Commission & 2 others [2013] eKLR, for the principle that he who alleges must prove. They submit that the Petitioners have failed to discharge that burden and consequently urge the Court to dismiss the Petition with costs. Disposition 21.The Petition herein is stated to be in challenge to the trade union elections held in respect of the 2nd Respondent. The Petitioners vied for the positions of Executive Secretary, Secretary Secondary, Vice Chairman, Organizing Secretary, Branch Gender Secretary and Assistant Secretary for Junior Secondary Schools. They were unsuccessful hence this Petition. 22.The Petitioners moved the Court under the Constitution of Kenya 2010, the Labour Relations Act, the Employment and Labour Relations Court Act as well as the Employment and Labour Relations Court (Procedure) Rules 2024. The impacted provisions of the law as far as trade union elections go generally will be the Constitution of Kenya 2010 but must specifically include the Labour Relation Act section 34, the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure & Practice Directions 2025, the Trade Unions Elections (Election Petition) Rules 2014 and any other relevant provision in the Union constitution. 23.This Petition is presented in the wrong format, without particulars of the elections, its outcome and the date of declaration contrary to paragraph 6 of the Employment and Labour Relations Court (Trade Union Election Dispute) Procedure & Practice Directions that prescribe the format of an election petition to include; (a) the name, physical and postal address, email address, telephone number and any other necessary particulars of the petitioner, respondent or the union official whose election is challenged; (b) the venue and date when the election in dispute was conducted; (c) the results of the election, if any, and however declared; (d) the date of the declaration of the results of the election. 24.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 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 in 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.''[Emphasis supplied] 25.It is trite that trade union election petitions are special proceedings governed by detailed procedures that must be strictly complied with to ensure they are presented to Court in the manner prescribed in law to allow for the determination of the petitions expeditiously. That is why the Trade Unions Elections (Election Petition) Rules 2014 and the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure & Practice Directions 2025 were promulgated. 26.In the Supreme Court decision in the case of Raila Odinga v Independent Electoral and Boundaries Commission & 3 others [2013] KESC 2 (KLR) (26 March 2013) (Ruling), it was held that Article 159(2)(d) of the Constitution was not intended to excuse litigants from complying with mandatory procedural requirements. The Supreme Court held:Our attention has repeatedly been drawn to the provisions of article 159(2)(d) of the Constitution which obliges a court of law to administer justice without undue regard to procedural technicalities. The operative words are the ones we have rendered in bold. The article simply means that a court of law should not pay undue attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from courts of law. In the instant matter before us, we do not think that our insistence that parties adhere to the constitutionally decreed timelines amounts to paying undue regard to procedural technicalities. As a matter of fact, if the timelines amount to a procedural technicality; it is a constitutionally mandated technicality.[Underlined for emphasis] 27.The finding of the Supreme Court is one that resonates well with this Court because rules exist just like statutory and constitutional provisions do, to guide parties when approaching court. They are not mere suggestions especially where they provide for the precision with which a party is to move the Court, the time lines, what information must be contained etc. The Petition before this Court does not even attempt to meet the criteria in the foregoing formats of presenting a trade union election dispute. In my considered view, the Petition is fatally defective and incompetent for contravening section 34(4) of the Labour Relations Act as well Rule 3, 5 and 6 of the Trade Unions Elections (Election Petition) Rules 2014, the provisions of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure & Practice Directions 2025. The Petition does not expressly indicate that the Petitioners are entitled to petition under section 34(4) of the Labour Relations Act as required by Rule 5(1) of Trade Unions Elections (Election Petition) Rules 2014; it does not bear the prescribed election petition number and year as obligated by Rule 5(2) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure & Practice Directions. It is my finding that the Petition offends Rule 6(i), (b), (c), and (d) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure & Practice Directions for failure to disclose the venue of the election, the election results, the date on which the results were declared, or the manner in which they were declared. The Petition is required to conclude with a prayer that a specified person should be declared duly elected or that the election should be declared void. The Petition must be signed by all the petitioners. This one was not. Other than the authority to depone, the Petition was not in keeping with the Rules relating to Trade Union Election Petitions. 28.Finally, what compounds and clearly demonstrates the Petition is incompetent and thereby seals the fate of the Petition is that the Petition does not set out the legal grounds upon which it is premised as prescribed by Rule 6(e) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure & Practice Directions 2025 and is not accompanied by a list of witnesses or documentary evidence as required under Rule 6(4) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure & Practice Directions. Consequently, the Court has no other recourse than to strike out the Petition with costs to the Respondents.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 7TH DAY OF JULY 2026NZIOKI WA MAKAU, MCIARB.JUDGE