https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2428

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION PETITION NO. ELRCPET/E013/2026 IN THE MATTER OF: ARTICLES 2(5), 2(6), 10, 19, 20, 21, 22, 23, 24, 27, 32, 36, 41, 47, 50, 258, AND 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: THE ALLEGED VIOLATION AND THREATENED VIOLATION OF THE PETITIONER’S FUNDAMENTAL RIGHTS AND FREEDOMS UNDER THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: THE NAIROBI COUNTY BRANCH ELECTIONS OF THE KENYA UNION OF POST PRIMARY EDUCATION TEACHERS (KUPPET) SCHEDULED FOR 31ST JANUARY 2026, WHICH ARE ALLEGED TO INFRINGE THE PETITIONER’S CONSTITUTIONAL RIGHTS. BETWEEN KEVIN OGARO BOSIRE….......................................................................................................... PETITIONER VERSUS KENYA UNION OF POST PRIMARY EDUCATION TEACHERS (KUPPET)……………………….…………………………………1ST RESPONDENT THE SECRETARY GENERAL, KUPPET………..……………………………………….……2ND RESPONDENT THE EXECUTIVE SECRETARY, KUPPET, NAIROBI COUNTY BRANCH………...................................................………………….3RD RESPONDENT THE COUNTY LABOUR OFFICER, NAIROBI COUNTY……..................................................................................................4TH RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. Following the ruling of this court delivered on the 30th January 2026 in this case, the 1st,2nd 3rd respondent filed application by way of notice of motion dated 16th March 2026 brought under Article 50 of the Constitution of Kenya, Section 16 and Rule 74 of the ELRC Rules 2024, Order 1 Rule 10 (2) and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B & 3A and 63 (e) of the Civil Procedure Act, and all other enabling provisions of law) seeking for the following orders- 2. spent 3. THAT this Honourable Court be pleased to vacate, discharge, review, vary and/or set aside its ruling of 30th January, 2026 in this matter as the same is grossly prejudicial to the Respondents. 4. THAT this Honourable Court be pleased to grant any other orders as it deems fit and just for the ends of justice to be met. 5. THAT the costs of this Application be in the cause. Grounds of the application 1. THAT the dispute before the Court concerns payroll third party check-off processes affecting teachers employed by the Teachers Service Commission and the alleged alteration of Union membership categories. 2. THAT the impugned Ruling requires the Union to reinstate membership status which is beyond the union's powers but lies squarely within the province of the individual teacher/trainer. 3. THAT the Petitioner concealed material facts which were crucial to the just determination of the issues. 4. THAT the Petitioner knowingly misled Court that KUPPET has initiator and/or administrator access on the TPay portal. 5. THAT the Petitioner failed to disclose that the TSC Guidelines on Management of Check-off Facility (2021) (here referred to as the TPay guidelines 2021) which states that it's the employees' obligation to initiate all transactions with its preferred third party by uploading his/her payslip online through the TPay Portal. 6. THAT the Petitioner misled this Honourable Court that the trade union has powers to remove member from a third party (a trade union) or make any changes to a member's status well in fact guideline 9.4.6 and 9.4.7 provide that legitimate authority from the employee must be obtained. This is done by a prescribed Form of Notice to the Employer Authorising Deductions (hereinafter "Notice"). 7. THAT the Petitioner misled the court to conclude that the Trade Union (third party) has power to change membership status of the teachers on the TPay Portal which remains the sole discretion of the individual users of the portal and not the trade union. 8. THAT the Petitioner in his Replying Affidavit dated 29th January 2026 under paragraph 10 states that KUPPET manipulated the accounts to alter the Petitioner's contribution. The aversion is completely fictitious as at no point does the TPay Guidelines allow the third party to propose any new deductions without the consent and authority of the individual teacher. 9. THAT the Petitioner further alleges in his affidavit that there was a difference in his deductions including the BBF contributions occasioned by the trade union. The Union wishes to bring to the Honourable Courts attention Guideline 9.4.2 of the TPay Guidelines (2021) which provides that it is the employee's obligation to complete the process by approving the captured transactions to be deducted against his or her salary before they are loaded on the payroll. 10. THAT the Petitioner confirms in his affidavit that the Union herein sent a circular reminding all members who were classified as agency members to make their payment of fees to their employer. This shows prior communication to the members to confirm that their affairs with the employer and the statutory deductions are in order. 11. THAT the Petitioner filed this suit two weeks later on 15th January 2026. The Petitioner did not produce any correspondence between him and the Trade Union or the employer to follow up on the issue with his membership status. Similarly, the Petitioner did not demonstrate that upon noticing any irregularity he raised the same with the TSC for resolution. Nevertheless, he proceeded to file this suit prematurely with the intent to obstruct the union's elections. 12. THAT the Petitioner further alleges in the affidavit that the union dues are not a stoppable transaction on the portal. However, the annexure shows clearly an icon that portrays a delete button under the status column for any deduction that the user/teacher intends to stop. 13. THAT the Petitioner has not brought any evidence before court to show that he followed up with the employer to make complaints on the difference in the check-off amounts. 14. . THAT the Petitioner voluntarily executed the application form for provision of check off services within the second schedule of the TSC Guidelines on Management of Check-off Facility (2021) and is therefore aware on the systematic procedure of any change in a member's deductions. 15. THAT the Petitioner now wishes to disrupt the Trade union's National Elections on allegations that are unfounded without following the correct procedure to exhaust existing remedies. 16. THAT this Honourable Court failed to consider that the Trade union has no wherewithal to interfere in any way with the portal at any point. 17. THAT the impugned Ruling has given leeway to frivolous litigants to exercise forum shopping and callously demand recusal of all other judges who might be more fair in decision making. 18. THAT it is in the interest of justice that this Court do forthwith vacate/ set aside or review it's Ruling of 30th January, 2026 to prevent further miscarriage of justice. 19. THAT this Application has been brought without unreasonable delay. 20. The 2nd respondent, Akelo M.T Misori, swore an affidavit on 16th March 2026 in support of the application and annexed the following documents. 'AM-1' is a copy of the said Ruling; 'AM-2' is a copy of the TSC Guidelines on Management of Check-off Facility 2021; 'AM-3' is a screenshot of the TPAY platform user interface; and 'AM-4' is a copy of the Circular dated 2nd January 2026 by the Secretary General for members to confirm eligibility. The deponent averred that union dues payable through the check-off system operate on a voluntary basis, and members interacting with the system are at liberty to approve or stop any deductions before they are submitted to the employer (Please refer to para 4 of the Petitioner's Reply to the Further Replying Affidavit of the 1st, 2nd and 3rd Respondent, dated 29-01-2026 and sworn by the Petitioner). The deponent further annexed clause 9.6.2 of the TPAY Guidelines, showing the Commission's mandate in addressing complaints, which has been extracted for ease; annexed hereto and marked 'AM-5'. (Annexed hereto and marked as 'AM-6' is the Contempt Application dated 7th March, 2026.) The deponent alleged that the impugned Ruling has emboldened opportunistic, frivolous litigants to harass and demand the recusal of any Judge who does not issue decisions in their favour. (Annexed hereto and marked as 'AM-7' is the Recusal Application in Meru ELRC.JR.E001/2026 (formerly Nairobi ELRC.JR.E049/2025) by Yvonne Mutindi Musyoka.)That the impugned Ruling has led to a raft of frivolous and opportunistic subsequent fresh matters filed before different stations of the Employment and Labour Relations Court relying directly on the misconceived reasoning and findings of the impugned Ruling. The mushrooming cases are as follows as at this date:- 21. Nakuru ELRC.PET/E009/2026: Murgor Kipkirui & Anne Chepkemoi Langat -v- Kenya Union of Post Primary Education Teachers (KUPPET), The Secretary General KUPPET, the National Elections Board KUPPET, The County Labour Office, Nakuru and The Registrar of Trade Unions. (Annexed and marked 'AM-8' is a copy of the Petition). 22. The Honourable Justice Rika issued ex-parte orders that the Respondents be restrained from gazetting, swearing in, or allowing any persons elected at the KUPPEТ Nakuru Branch Elections on 7th February, 2026. Judge Rika's Ruling is premised upon this Court's impugned Ruling this court in paragraph 3 in absentia of the material facts. (Annexed and marked 'AM-9' is the Ruling). 23. Narok ELRC.PET/E001/2026: Kipkoech Evans & Ngetich Geoffrey Cheruiyot -v- Kenya Union Of Post Primary Education Teachers, The Secretary General - KUPPET, The National Elections Board - KUPPET, The County Labour Officer - Narok County and The Registrar of Trade Unions (Annexed and marked 'AM-10' is a copy of the said Petition). 24. That the Petitioners in the matter have referenced the impugned Ruling as the basis of their Petition which is further intended to mislead other judicial officers and subvert the course of justice. That Hon. Lady Justice Anna Mwaure issued Orders to the effect that there was no evidence as to this alleged reclassification and further invited the Petitioners to return after the election to report on the issue. After the elections the Petitioners withdrew the Petition altogether. This is testament to our position all along that the Union has not interfered with any classification of members. (Annexed and marked 'AM11' is the Court's Ruling of 13th March, 2025). 25. Nyeri ELRC.PET.E004/2026: (Formerly Nairobi PET.E068/2026) between David Ngugi, Peter Wathitu Wambugu and Paul Maina -v- Kenya Union of Post Primary Education Teachers (KUPPET) The Secretary General - KUPPET The National Elections Board -– KUPPET, The County Labour Officer Laikipia County, the Registrar of Trade Unions and David Gichuki. (Annexed and marked as 'AM-12' is the said Petition). 26. Nakuru ELRC.JR/E001/2026: Republic -v- the Secretary-General KUPPET, Nakuru KUPPET Branch Executive Secretary, Nakuru County Labour Office, The Registrar of Trade Unions, Kenya Union of Post Primary Education Teachers, Jeremiah Omboko Milemba and The Teachers Service Commission exparte Vivian Chepkemoi Towett (Annexed and marked as 'AM-13' is a copy of the JR Motion). In this matter, Justice Rika observed that there are numerous other similar claims lodged in different ELRC Stations, emanating from the same grievance. This poses a danger to the consistency of judicial orders and proceeded to transfer the Petition to this Court. (Annexed and marked as 'AM-14' is a copy of the said Ruling of Judge Rika). 27. Nairobi ELRC.PET/E025/2026: John Thiuru Mbugua and Teresia Wanjiru Kiguru -v- Kenya Union Of Post Primary Education Teachers (KUPPET), The County Labour Officer Kiambu County, The Registrar of Trade Unions and 15 Others (Annexed and marked 'AM-15' is a copy of the Petition alleging, inter alia, that those under 'Agency' were allowed to vote - obviously a claim stemming not from facts but from the impugned Ruling and 'AM-16' is an extract of the conservatory orders). 28. Nakuru ELRC.JR/E002/2026: (Formerly Nairobi ELRC.JR E017/2026) Republic -v- Secretary General KUPPET, Branch Executive Secretary-Nakuru KUPPET Branch, Nakuru County Labour Officer, Registrar of Trade Unions, KUPPET, Hon. Omboko Milemba, TSC & Nakuru KUPPET Branch Executive Committee (Interested Party) Ex-Parte Daniel Rono (Annexed and marked 'AM-17' is a screengrab of the Judiciary CTS showing the court directions dated 11th March 2026). 29. Nyeri ELRC.PET.E002/2026: Laban Mwenda; Bernard Ereneo; Lydia Gitehi; Kariuki Mary; Meroy Chege; Victor Seretta; Saraphina Micheni; James Murerwa; Brian Mobisa; Eric Gichuri -v- The Registrar of Trade Unions; Labour Union Officer; and Kenya Union Of Post Primary Education Teachers (KUPPET) (Annexed and marked 'AM-18' is a copy of the Court's Orders dated 27th February 2026). 30. Meru ELRC.JR/E002/2026: Republic -v- Registrar of Trade Unions, the Secretary General, KUPРЕТ Kenya Union of Post Primary Education Teachers Samburu KUPPET Branch Executive Committee Samburu Labour Officer Peter Ltantiran Letipila Samburu Acting Executive Secretary CEO/Secretary TRIPLE A ADVOCATES Teachers Service Commission ex-parte William Lengoyiap (Annexed and marked 'AM-19' is a copy of the said Supporting Affidavit sworn by William Lengoiyap on 5th March 2026). 31. The deponent contended that the common denominator in ALL the above cases is this Court's impugned Ruling of 30th January, 2026. We can only guess that they are just getting started. Nobody knows the kind of proliferation of lawsuits that is about to pour into the in-tray of the Hon. Jemimah Wanza Keli as regards this matter of 'reclassification’. Response 1. The application was opposed by the petitioner vide grounds of opposition dated 23rd March 2026 as follows- 2. THAT the Application is incompetent, misconceived, bad in law, and an abuse of the process of the Court. 3. THAT the Respondents have not satisfied the legal threshold for review. They have neither demonstrated discovery of new and important matter which, despite due diligence, was not within their knowledge at the time the impugned ruling was delivered, nor have they identified any error apparent on the face of the record. 4. THAT the Applicant’s complaint is plainly directed at the merits of the Court’s reasoning, evaluation of evidence, and conclusions of law and fact. Such grievances fall within the province of an appeal and not review. The present application is therefore a disguised appeal, improperly inviting this Honourable Court to sit on appeal over its own decision. 5. THAT the Application is spent, moot, and overtaken by events, the orders complained of having related to an electoral process and timelines that have since been overtaken by subsequent events. 6. . THAT the Application seeks to reopen and reargue the merits of the ruling delivered on 30th January 2026 under the guise of review, variation, discharge and/or setting aside. 7. THAT the Respondents have not established any lawful ground for review of the ruling of this Honourable Court. 8. THAT the matters raised in the Application were within the Respondents’ knowledge at all material times and do not constitute discovery of new and important evidence. 9. THAT the issues raised by the Respondents, if at all, fall within the province of an appeal and not review, and the present Application is therefore an impermissible attempt to substitute review for appeal. 10. THAT the Respondents did not file any appeal against the ruling of 30th January 2026 and cannot now invite this Honourable Court to sit on appeal over its own decision. 11. THAT the Application has been brought by parties who have not approached the Court with clean hands, there being a pending application for contempt against the Respondents for disobedience of the orders of this Honourable Court. 12. THAT the Application is vexatious, malicious, frivolous and intended to frustrate, delay and obstruct the just determination of the Petition and related proceedings. 13. THAT the intended joinder of the Teachers Service Commission at this stage is a belated afterthought designed to fill evidentiary and procedural gaps in the Respondents’ case after delivery of the ruling complained of. 14. THAT the Application does not disclose any sufficient cause or merit to warrant the exercise of this Court’s discretion in favour of the Respondents. 15. THAT the Application ought to be dismissed with costs to the Petitioner. 16. The application was canvassed by way of written submissions. The applicants’ submissions 1. These are the humble Submissions of the 1st 2nd and 3rd Respondents who are the Applicants herein; in support of the Notice of Motion dated 16th March, 2026 seeking a review, variation and/or setting aside of this Honourable Court's Ruling delivered on 30th January 2026. The Application is brought pursuant to Article 50 and 159 of the Constitution, Section 16 of the Employment and Labour Relations Court Act, Rule 74 of the ELRC Rules 2024, Order 45 Rule 1 and Order 1 Rule 10(2) of the Civil Procedure Rules. The Applicants respectfully submit that the only issue that presents for determination is Whether the Applicants have satisfied the legal threshold for review, variation and/or setting aside of the Ruling delivered on 30th January 2026. 2. Whether the Applicants have satisfied the legal threshold for review, variation and/or setting aside of the Ruling delivered on 30th January 2026. The court has jurisdiction to review its orders. Section 16 of the Employment and Labour Relations Court Act and Rule 74 of the ELRC Rules confer jurisdiction on this Honourable Court to review its decisions where sufficient cause has been demonstrated. The Supreme Court in Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited affirmed that courts possess inherent jurisdiction to revisit decisions rendered in error or under misapprehension so as to prevent miscarriage of justice. Similarly, the Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau held that review is available where the Court acted on a mistaken view of the law or facts. 3. The impugned ruling was issued under misapprehension of material facts - The Applicants submit that the impugned Ruling proceeded on the mistaken assumption that KUPPET possesses administrative and initiator control over the TPay payroll portal and can therefore alter members' status from bona fide membership to agency fee status. However, the uncontested evidence before Court demonstrates that: a. The TPay system is administered exclusively by the Teachers Service Commission (TSC); b. Transactions are initiated and authenticated by individual teachers through their own portal access; c. The Union has neither backend nor frontend control over the TPay infrastructure; d. The applicable TSC Guidelines require employee authorization before any deductions can be effected, amended or stopped. 1. The Applicants therefore submit that the Court's finding requiring the Union to "reinstate" membership status imposed obligations incapable of performance because such powers lie with the individual employee within the TPay system and not the Union. 2. The petitioner failed to disclose material facts - The Applicants further submit that the Petitioner failed to disclose to Court the operational framework governing the TPay system, including the mandatory role played by individual teachers in initiating and approving payroll deductions. 11. The Court of Appeal in Uhuru Highway Development Ltd v Central Bank of Kenya & 2 Others held that orders obtained through material non-disclosure or concealment of facts cannot stand. 12. The Supreme Court in Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others equally emphasized that litigants approaching Court must make full and frank disclosure of all material facts. 3. The Impugned Ruling Has Occasioned Serious Prejudice - The Supporting Affidavit demonstrates that the impugned Ruling has triggered multiple suits in different ELRC stations, all founded on the mistaken premise that KUPPET unlawfully reclassified members. 14. The Applicants have further demonstrated that the continued existence of the impugned orders threatens nullification of KUPPET National Elections in which the Branch representatives participated pursuant to the Labour Relations Act and the Union Constitution. This has resulted in substantial prejudice not only to the Union but also to thousands of members whose democratic participation in union affairs risks paralysis through multiplicity of suits and conflicting court orders. 16. The Court of Appeal in Board of Governors Moi High School Kabarak & Another v Malcolm Bell observed that courts must exercise judicial authority in a manner that avoids absurdity, institutional paralysis and injustice. 4. In light of the foregoing we do humbly submit that we have clearly demonstrated sufficient cause warranting review and/or setting aside of the Ruling of 30th January 2026 on account of: a. Misapprehension of the operational structure of the TPay system; b. Material non-disclosure by the Petitioner; c. Imposition of obligations incapable of performance upon the Union; and d. Serious prejudice occasioned by proliferation of satellite litigation and disruption of trade union elections. This Honourable Court is therefore urged to exercise its review jurisdiction in the interests of justice, autonomy of trade unions and orderly administration of labour relations. We do urge this Honourable Court to allow the instant Application and thereby review, vary, vacate and/or set aside the Ruling delivered on 30th January 2026; and to grant costs in the cause. The petitioner’s submissions 1. The Application seeks the review, vacation, discharge, variation and/or setting aside of the Ruling of this Honourable Court delivered on 30 th January 2026. The Petitioner submits that the Application is incompetent, misconceived, bad in law, frivolous, vexatious, malicious, and an egregious abuse of the process of this Honourable Court. Contrary to the Applicants' suggestion that this Honourable Court stands alone or erred in its Ruling, the Applicants themselves have annexed to their Supporting Affidavit evidence of at least fifteen (15) separate proceedings filed in various Employment and Labour Relations Court stations, including Nakuru, Nyeri, Narok, Meru, and Nairobi. In Nakuru ELRC.PET/E009/2026, Hon. Justice Rika issued ex-parte orders restraining KUPPET from gazetting election results. In Nyeri ELRC.PET/E006/2026, the Court nullified the Laikipia branch elections on grounds similar to those raised by the Petitioner. In Narok ELRC.PET/E001/2026 and Meru ELRC.JR/E002/2026, injunctive orders were issued against the Respondents. The common denominator in all these cases is not this Court's Ruling, as the Applicants disingenuously claim, but rather KUPPET's own misconduct – the arbitrary reclassification of members, unexplained reduction of cumulative contribution records, and disenfranchisement of members from union elections. That multiple judges of concurrent jurisdiction have independently reached similar conclusions on similar facts is powerful corroboration that this Court's Ruling was neither isolated nor erroneous, but correctly identified a nationwide pattern of misconduct by the Respondents. What is equally telling is the Applicant’s continued misconduct after these pronouncements by various court against their conduct. The Application is nothing more than a disguised appeal, dressed in the language of review, inviting this Honourable Court to sit on appeal over its own decision. This is a path that is firmly closed by binding precedent. The Applicants, having failed to file an appeal against the Ruling of 30th January 2026, cannot now be permitted to circumvent the appellate process through the backdoor of review. The Ruling of 30th January 2026 was delivered in the specific context of an impending electoral process. The Nairobi County Branch elections, which formed the substratum of the urgency, have since been conducted. The National Elections have also since taken place. The relief now sought by the Applicants; to vacate, discharge, review, vary and/or set aside the Ruling would serve no practical purpose whatsoever. The electoral processes that the Ruling was intended to protect have already concluded. This Court cannot turn back the clock. The doctrine of mootness is now well settled in Kenyan jurisprudence. In National Assembly of Kenya & Another v Institute of Social Accountability & 6 Others [2017] eKLR, the Court emphasized that a matter becomes moot where it no longer presents a live controversy capable of resolution by the court and where any determination would have no practical effect on the rights of the parties. The Court further observed that courts should not expend judicial resources on abstract, academic or hypothetical disputes. Similarly, in Daniel Kaminja & 3 Others (suing as Westlands Environmental Caretaker Group) v County Government of Nairobi [2019] eKLR, the Court held that a case becomes moot when supervening events deprive it of practical significance, such that any orders issued would be of no practical value. The Court reiterated that no court of law will knowingly act in vain and that courts are generally reluctant to make pronouncements on academic questions that serve no useful purpose. The same position was reaffirmed by the Court of Appeal in National Assembly & Another v Okiya Omtatah Okoiti & 55 Others [2024] KECA876 (KLR), where the Court stated that where subsequent events have deprived the parties of the relief sought or rendered the dispute incapable of effective adjudication, the matter becomes moot and ought not to occupy the court’s time, since courts do not issue orders in vain. The Application is therefore not only without merit on the law, but it is also futile. Dismissal on grounds of mootness is fully justified. The Petitioner humbly invites this Honourable Court to dismiss the Application with costs and to affirm its Ruling of 30th January, 2026. 2. The Petitioner filed this Petition challenging the unlawful, arbitrary, and unexplained reclassification of long-standing bona fide members of the Kenya Union of Post Primary Teachers (KUPPET), including the Petitioner himself, from full membership status to “agency fee” status. The Petitioner adduced before this Honourable Court compelling evidence demonstrating:- a. That the Petitioner had cumulative union contributions in excess of Kshs. 51,552 reflected in earlier records, which were later drastically reduced to a meagre and unexplained figure. b. That similarly, other affected members such as Atuti Jones Maroko (TSC No. 787980) had cumulative deductions exceeding Kshs. 54,114 which later fell inexplicably to Kshs. 1,039.95. c. That the Petitioner and other affected members were simultaneously and without warning reclassified as “agency” members. d. That despite being classified as “agency” members, BBF contributions continued to be deducted from their earnings – a glaring internal inconsistency that exposes the bad faith of the Applicants’ conduct. e. That the Applicants issued a circular dated 3rd January 2026 requiring persons placed under agency status to pay fees equivalent to thirteen weeks’ contributions and to obtain a collector’s receipt from the National Treasurer as a precondition to participating in Union elections. 1. This Honourable Court, after considering the pleadings and affidavits, delivered a Ruling on 30 th January 2026 granting conservatory and interim orders to protect the Petitioner’s constitutional and labour rights pending the hearing and determination of the Petition. 8. The Applicant has attempted to scandalize the court by making statements aimed at demeaning the stature of the Honourable court. is well settled. The contents of the Affidavit sworn by One Akelo M.T Misori are contemptuous, devoid of any merit and solely aim to blackmail and scandalize this court. 2. A party who makes allegations that a court has been misled or has acted on falsehoods without any evidentiary basis, like the Applicant herein, is engaging in conduct that tends to bring the court into disrepute. Such conduct should not be tolerated and is sufficient grounds to dismiss the Application. 3. Instead of complying with orders issued by the court, and instead of filing an appeal as is their right if aggrieved, the Applicants filed the instant Application on 16th March 2026, forty-five (45) days after the impugned Ruling. The Application is a collateral attack on the Ruling and an abuse of the Court’s process. The Application was filed out of the Appeal and Review timelines, and has no basis in law. The Applicants have raised numerous extraneous issues, including references to proceedings in other courts. These are irrelevant to the narrow question before this Court: whether the Applicants have met the threshold for review under Section 16 of the ELRC Act. This Court should decline the invitation to delve into collateral matters and instead focus on the Applicants' failure to establish any ground for review. 4. Legal framework governing review -The jurisdiction of this Honourable Court to review its own decisions is well-established but is, by design, circumscribed and limited. It is not an open-ended invitation for disappointed litigants to re-argue their cases. Section 16 of the Employment and Labour Relations Court Act provides verbatim: “The Court shall have the power to review its judgments, awards, orders or decrees in accordance with the Rules made under section 29.” Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024, and by extension Order 45 Rule 1 of the Civil Procedure Rules (which the Applicants themselves have invoked), provide the specific, exhaustive grounds upon which review may be granted. These are: a. Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced at the time the decree or order was made; b. Some mistake or error apparent on the face of the record; or c. Any other sufficient reason. 5. The Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR (also cited by the Applicants) rendered the definitive pronouncement on this subject, holding with unmistakable clarity: “A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. A party who is dissatisfied with a judgment on the merits has no recourse but to appeal.” (Emphasis added) The Supreme Court of Kenya in Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2020] eKLR affirmed that while courts possess inherent jurisdiction to revisit decisions to prevent a miscarriage of justice, this power must be exercised cautiously and only where a clear case for review has been made out. The Petitioner submits that the Applicants have failed to satisfy any of the foregoing grounds. Their Application is, in substance and in form, an impermissible attempt to challenge the merits of the Court’s reasoning, findings, and exercise of discretion. 6. Whether the Applicants have satisfied the strict legal threshold for the grant of an order of review under Section 16 of the Employment and Labour Relations Court Act, Rule 74 of the ELRC Rules 2024, and Order 45 Rule 1 of the Civil Procedure Rules. The Applicants Have Not Discovered Any New and Important evidence/Matte. The Applicants allege that the Petitioner concealed material facts, namely the operational framework of the TPay portal and the TSC Guidelines on Management of Check-off Facility (2021). They further allege that the Court misunderstood the Union’s lack of control over the portal. The Petitioner’s presented copies of payslips from Tpay system which formed basis for the ruling the Applicants seek to review. The court therefore in making its determinations was well informed of the Tpay system and the position of all parties involved. With the greatest respect, these allegations are demonstrably false. The TSC Guidelines relied upon by the Applicants are public documents. They existed long before the Petition was filed, long before the Ruling was delivered, and were within the Applicants’ knowledge at all material times. The Applicants were and remain the primary actors operating within the TSC framework. They cannot now be heard to claim that these Guidelines constitute “new” or “discovered” evidence. The Court of Appeal in Pancras T. Swai v Kenya Breweries Limited [2014] eKLR held that for a review to succeed on the ground of discovery of new and important evidence, the applicant must demonstrate that such evidence was not within his knowledge and could not, even after the exercise of due diligence, have been produced at the time the decree or order was made. The Court emphasized that review is not available to a party who merely failed to present available evidence during the hearing. Similarly, in Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR, the Court reiterated that review jurisdiction is not intended to afford a litigant a second opportunity to patch up weak points in his case or to introduce evidence that was available but was not tendered during the proceedings. The Court observed that litigation must come to an end and parties are expected to place all material evidence before the court at the appropriate time. The principle was also affirmed in Republic v Public Procurement Administrative Review Board & 2 Others Ex Parte Pelt Security Services Limited [2018] eKLR where the Court held that evidence which was within the knowledge of an applicant, or which could have been obtained through reasonable diligence before the impugned decision was made, cannot properly constitute “new and important matter” for purposes of review. Furthermore, the Applicants have not identified any single document, fact, guideline, record, or piece of evidence that was discovered after the delivery of the Ruling on 30 th January 2026. They merely seek to place greater emphasis on arguments that were available to them from the outset but which they failed to adequately advance. This is not a ground for review; it is an admission of a tactical error, which this Court should not remedy. As the Court of Appeal held in Pancras the jurisdiction of review is strictly circumscribed and is only available where there is discovery of new and important matter which, despite the exercise of due diligence, was not within the applicant's knowledge and could not have been produced at the time the order was made. The Court emphasized that review is not intended to enable a party to fill gaps in its case or to introduce evidence that was available but was not tendered during the original proceedings. A litigant who had the opportunity to present evidence but failed to do so cannot subsequently invoke the review jurisdiction to remedy that omission. b. No Error Apparent on the Face of the Record has been Shown. The Applicants argue that the Court proceeded on a “misapprehension of material facts” regarding the TPay portal and that this constitutes an error apparent on the face of the record. This submission is fundamentally misguided. An error apparent on the face of the record must be self-evident. It must be an error that strikes the judicial officer upon a mere perusal of the record, without the need for lengthy argument, external evidence, or re-evaluation of contested facts. In National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, the Court of Appeal held that a review may only be granted where there is a clear and self-evident error apparent on the face of the record. The Court emphasized that a review is not available merely because the court may have reached an incorrect conclusion of law or fact. Such alleged errors are matters for appeal and not review. The Court stated that an error apparent on the face of the record must be obvious and patent, and should not require an elaborate process of reasoning or extensive argument to establish. Similarly, in Nyamogo & Nyamogo Advocates v Kogo [2001] eKLR, the Court of Appeal observed that an error apparent on the face of the record is one that is self-evident and does not require a detailed examination of the record or lengthy legal arguments to discern. Where two opinions are reasonably possible on a point, the matter ceases to be an error apparent on the face of the record and instead becomes a proper subject for appeal. The Applicants’ complaints are not self-evident errors. They are fundamental disagreements with the Court’s: i. Evaluation of the evidence presented; ii. Interpretation of the facts; iii. Understanding of the relationship between the Union, the TPay portal, and individual members; iv. Exercise of judicial discretion in granting conservatory orders. Each of these complaints belongs squarely and exclusively to the appellate jurisdiction. The Court of Appeal in Pancras T. Swai v Kenya Breweries Limited [2014] eKLR stated with precision: “Where a party is dissatisfied with the findings of fact or law by a trial court, the proper recourse is to lodge an appeal. An application for review cannot be used as a substitute for an appeal. To permit otherwise would render the appellate process nugatory and encourage endless re-litigation.” The Applicants have not pointed to any mathematical error, clerical mistake, accidental slip, or patent omission on the face of the Ruling. They simply disagree with the outcome. That is not, and has never been, a ground for review. 7. No Other Sufficient Reason has been Disclosed. The Applicants argue that the impugned Ruling has occasioned “serious prejudice” by triggering multiple suits across different ELRC stations and by threatening the Union’s National Elections. This argument is not a “sufficient reason” for review. The phrase “any other sufficient reason” in Order 45 Rule 1 has been judicially interpreted to mean reasons that are analogous to or of the same nature as the discovery of new evidence or an error apparent on the face of the record. The alleged inconvenience to the Applicants, or the multiplicity of suits arising from their own conduct, does not constitute a miscarriage of justice. To the contrary, vacating a lawful court order merely because it has led to other litigants asserting similar rights would itself be a gross miscarriage of justice. The Supreme Court in Benjoh Amalgamated (supra) made it clear that the review power is to prevent a miscarriage of justice, not to alleviate the administrative, political, or logistical inconvenience of a party who has failed to comply with court orders. 8. Whether the Application is competent, meritorious, and brought in good faith, or whether it is a disguised appeal, an abuse of court process, and otherwise incurably defective. The Petitioner submits that the Application is, in its essential character, an appeal masquerading as a review. The Applicants are inviting this Honourable Court to reconsider its factual findings, re-evaluate the evidence, and arrive at a different conclusion. This is precisely what an appellate court does, not a review court. The Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR emphatically held that a review is not an avenue for a dissatisfied litigant to reargue the merits of a case. The Court stated: “A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter, nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.” In Njau above the Court thereby underscored that review jurisdiction is narrow and exceptional, and cannot be invoked as a substitute for an appeal. A party dissatisfied with the merits of a judgment must pursue the appellate process rather than seek to reopen the matter through a review application. The Applicants have not filed any appeal against the Ruling of 30 th January 2026. Whether this failure was due to expiry of the limitation period or a tactical decision, the consequence is the same; they cannot use the review jurisdiction to achieve what an appeal would have achieved. The Application is therefore an abuse of court process. The Court of Appeal in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR held that an abuse of process occurs where a party attempts to relitigate issues already determined or uses procedural mechanisms for an improper purpose. That is precisely what has occurred here. iii. What orders this Honourable Court should make as to costs. The Petitioner prays for an award of costs in his favour. The law and practice regarding costs is settled. Section 12(4) of the Employment and Labour Relations Court Act provides that this Court shall have discretion to award costs. The general rule, as articulated in Jasbir Singh Rai & Co. Advocates v Tarlochan Singh Rai [2014] eKLR, is that costs follow the event. The Petitioner submits that the Application is not only unsuccessful but is also frivolous, vexatious, and an abuse of court process. It was filed without any reasonable legal basis, long after the events complained of, and with the clear intention of delaying the hearing and determination of the main Petition and the pending contempt proceedings. The Court of Appeal has reiterated that costs are awarded to compensate the successful party for the expense of litigating an unnecessary or unmeritorious claim. The Court also affirmed that where a party acts vexatiously or abusively, a higher costs order may be justified. The Petitioner has been forced to incur substantial legal costs to oppose this baseless Application. He should not be left out of pocket. An award of costs in his favour is not only just but necessary to deter future litigants from filing disguised appeals under the guise of review. 9. The Respondents Approach This Honourable Court with unclean Hands - It is a foundational principle of equity that he who comes to equity must come with clean hands. A party seeking the discretionary relief of review must demonstrate respect for the authority of the Court and compliance with its orders. The Petitioner has already filed a pending application for contempt of court against the Applicants, arising from their alleged disobedience and/or non-compliance with the orders of this Honourable Court issued on 30th January 2026. 45 days after the ruling, without filing an appeal the Respondents had not complied with the ruling, this is contempt of court, and instead of remedying this default the Respondents have sought an appeal through the backdoor. The Applicants have neither complied with the said orders nor purged the alleged contempt. They have not even addressed the contempt proceedings in their Application or Supporting Affidavit. The principle in Hadkinson v Hadkinson [1952] 2 All ER 567 has been consistently applied in Kenya. In Mutitika v Baharini Farm Ltd [1985] KLR 227, the Court of Appeal held that while courts retain discretion to hear a contemnor, such discretion is to be exercised sparingly, and a party who is in contempt of court orders should not ordinarily be heard unless and until they have purged the contempt. The Court emphasized that obedience to court orders is fundamental to the administration of justice, and a litigant who wilfully disobeys such orders cannot expect the court to assist them as of right. Similarly, in Teachers Service Commission v Kenya National Union of Teachers & 2 Others [2013] eKLR, the High Court reiterated that court orders are not made in vain and must be obeyed, and that a party in contempt risks being denied audience until they comply with the orders of the court. The underlying rationale is to uphold the authority of the court and ensure the integrity of the judicial process. The Applicants cannot be permitted to seek the favourable discretion of this Court to review its orders while simultaneously flouting those very orders. To grant the Application in these circumstances would be to reward disobedience and undermine the rule of law. 10. The substantive grievance remains unanswered -Before concluding, the Petitioner invites Your Ladyship to note what the Applicants have conspicuously and tellingly failed to address in their voluminous Motion, Supporting Affidavit, and Submissions: i. Why were long-standing bona fide members, including the Petitioner with over Kshs. 51,552 in cumulative contributions, suddenly and without notice reclassified as “agency” members? ii. Where did the deducted union dues, representing the cumulative contributions of the Petitioner and other affected members, disappear to? iii. Why were members classified as “agency” members still subjected to BBF deductions, thereby benefiting the Union while being denied full membership rights? iv. Why was a circular dated 3rd January 2026 issued, requiring “agency” members to pay thirteen weeks’ dues as a precondition to participating in elections – a classic and well-recognized tool of electoral disenfranchisement? 11. Why were the impugned changes made in such close temporal proximity to the Union’s National Elections? -The Applicants’ elaborate arguments about the TPay portal, the TSC Guidelines, and their alleged lack of control are a smokescreen. They are designed to deflect attention from the central injustice: the unexplained reclassification, the missing contributions, and the disenfranchisement of members. The duty to maintain membership records remains the responsibility of the union and cannot be delegated to TSC or any other party. It is the union that has a duty to supply the voter’s register prior to elections. The Ruling of 30th January 2026 correctly identified the effects of the Applicants’ conduct. Decision 1. The applicant seeks to vacate, discharge, review, vary and set aside the court's ruling dated 30th January 2026. The court finds that there are only two ways to challenge a court decision: review or appeal. The court finds that the only legitimate route to revisit its decision on the merits is by review. The relevant rules of the court are: The Employment and Labour Relations Court (Procedure) Rules, Legal Notice 133 of 2024. On review, the relevant rule is no 74 to wit- ‘ **74. Review** (1)A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling— (a)if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made; (b)on account of some mistake or error apparent on the face of the record; (c)if the judgment or ruling requires clarification; or (d)for any other sufficient reason. (2)An application for review of a decree or order of the Court under subrule – (1) shall be made to the judge who passed the decree or made the order sought to be reviewed or to any other judge if that judge is not attached to the Court station. (3)A party seeking review of a decree or order of the Court shall apply to the Court by way of notice of motion supported by an affidavit and shall file a copy of the Judgment or decree or ruling or order to be reviewed.’’ 1. The court carefully considered the reasons advanced to justify the orders sought. In the court's opinion, the applicants challenged the merits of the decision, particularly the facts relating to the KUPPET's role in handling membership status. The applicants contend that deductions of union dues are not under the union's control but are made by members through the TSC's TPAY System. These facts were canvassed before the court and considered in the impugned ruling. They are captured in paragraph 7 of the ruling as follows - ‘The Secretary General Misori filed a further replying affidavit dated 29th January 2026 to effect that only a teacher can choose whether to be a member or relinquish membership of the union by a click of a button on the confidential platform private to each teacher, the TPAY online portal of TSC. Misori relied on section 49 of the Employment Act on agency fee.’ The court then made the following findings - ‘Misori also annexed as AM9 the deduction of agency fees. The question which the Secretary General did not answer is when the full membership of the Applicant ceased. There was evidence of membership deduction all through and the changes happened within the 13 weeks of election.’ The Applicant produced payslips of Teacher Nyamache Douglas Ochako. The 13-week cutoff is November 2025. Before the court are payslips of Ochako for August 2025 to January 2026. In November 2025 teacher Ochako was deducted union dues of KShs.703.25 making total deduction reflected in payslip of November for sum of KShs. 4205.45. The payslip of December 2025 indicated KShs. 703.26 as total deduction which in January reduced total was now 1,440.43.11.The Respondent relied on the payslip to declassify the teacher as agency. There was no evidence before the court of resignation of the teacher as a member of the union. The [*Labour Relations Act*](https://new.kenyalaw.org/akn/ke/act/2007/14) Section 33 states that no person shall be a voting member of a registered trade union on employers’ organization if that person’s subscriptions are more than thirteen weeks in arrears. The Applicant placed before court union deductions in compliance with the 13 weeks period.12.Section 48 of [*Labour Relations Act*](https://new.kenyalaw.org/akn/ke/act/2007/14) is on trade union dues where trade union dues is defined to mean “a regular subscription required to be paid to a trade union by a member of the trade union as a condition of membership”. For the deduction to be effected by employer the union issues instruction for deduction to employer which takes effect the following month.13.Section 48(8) of the [*Labour Relations Act*](https://new.kenyalaw.org/akn/ke/act/2007/14) provides for employer to issue resignation notice of member to union as a pre-condition to stop deduction. There is no evidence placed by Respondent before court of the Applicant have resigned under section 48 (8).14.The payslip is a document by the employer as per section 20 of the [*Employment Act*](https://new.kenyalaw.org/akn/ke/act/2007/11). The employee does not generate the payslip and has no input. Section 20 (1) states “an employer shall give a written statement to an employee at or before the time at which any payment of wages or salary is made by employee.”15.The respondent indeed produced the check off form envisaged under section 48 as “AM7”. Consequently, the court finds that the Applicant have proved on prima facie basis that they had been continuous members of the KUPPET having been deducted union dues and were thus arbitrarily deprived of the right to vote vide unjustified changes in payslip within the material time of 13 weeks of qualification to vote.16.The employees having paid trade union and in compliance with section 33 have unqualified right to vote in the election scheduled on 31st January 2025 in exercise of their democratic rights protected under Article 41 of the [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution).’ 2. The above is verbatim from the impugned ruling. I find no mistake or error or even new evidence to justify review of the decision. The applicant relied on the decision of the Court of Appeal in National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR).The Court held as follows- ‘A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.’’ The Court of Appeal in Benjoh Amalgamated Limited v Bidii Kenya Limited & another [2024] KECA 593 (KLR) held-‘This Court’s residual jurisdiction, as was recently held in [*AVH Legal LLP vs Raballa & 8 Others Civil Appeal (Application) 117 of 2018*](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/232) (un reported) delivered on 3rd March, 2023 is to re- open a decided case in appropriate and exceptional cases, such as when judgment- (a) was obtained by fraud or deceit; (b) was a nullity; (c) was given under a mistaken belief that the parties consented to it; (d) was given in the absence of jurisdiction; (e) the proceedings adopted were such as to deprive the decision or judgment of the character of a legitimate adjudication; or (f) that it was rendered with fundamental irregularity. 44.It is clear from decided cases that a party is not entitled to seek a review of a judgment delivered by a Court of Appeal merely for the purpose of a rehearing and obtaining a fresh decision in the case. Departure from the general principle of finality of court decisions is justified only when circumstances of a substantial and compelling character make it necessary to do so.’ 3. I found no error or omission in the ruling to be corrected. The applicants are inviting the court to sit on appeal on its own decision. There is no new evidence as relates to the merit of the ruling. There is no error demonstrated on the face of the record. The court did not find any sufficient reason to interfere with its ruling. (Rule 74 applied) The court does not bind any judge of the court, and the said judges, as alleged, must have made their own independent decisions faced with the same facts. Indeed this was the case in ELRC NYERI Constitutional Petition NO. E004 OF 2026 David Ngugi and 3 others Versus Kenya Union Of Post-Primary Education Teachers (KUPPET) and others Justice Stella Rutto on the issue of membership held as follows- ‘**Classification of Members as agency members** The Petitioners allege that the 1st and 2nd Respondents arbitrarily reclassified certain union members as “agency” members, notwithstanding their continued payment of full union dues and their longstanding participation in union affairs. In support of this assertion, the 3rd Petitioner produced his pay slips for the months of November 2025, December 2025, and January 2026, which indicate that he remitted trade union dues to the 1st Respondent. Despite this, his name appears as number 138 on a list of teachers designated as paying agency fees, thereby suggesting that, in terms of **Section 49(1) of the Labour Relations Act,** he is not recognized as a member of the 1st Respondent. Notably, **Section 49(5) of the Labour Relations Act** provides that a member of a trade union covered by a collective agreement who resigns from the union becomes immediately liable to the deduction of an agency fee from his or her wages. The Respondents have denied the Petitioners’ allegations on this issue and contend that any change in membership status is effected by individual members themselves through the TPay portal managed by the TSC. Under **Section 48(6) of the Labour Relations Act**, an employer is required to forward to the trade union a copy of any notice of resignation received from an employee. In the present case, the 1st and 2nd Respondents did not produce any resignation notice from the 3rd Petitioner’s employer evidencing his intention to cease membership in the 1st Respondent union. Consequently, notwithstanding the entries reflected in the TPay portal as stated by the Respondents, and in the absence of a resignation notice as contemplated under **Sections 48(6), (7), and (8) of the Labour Relations Act**, the 3rd Petitioner and by extension any similarly situated individual remains a member of the 1st Respondent union. Such membership entitles the 3rd Petitioner and any such member to participate in union activities, including the right to vote in branch elections.’’ It is thus not true that this is the only court which has reached the conclusion on the illegal classification of members under agency. The application is thus based on untrue facts. 1. I find it is an act of intimidating the court in the exercise of its jurisdiction in asking it to vacate its decision on the basis of difficult or the inconvenience suffered by the applicants in compliance with the decision. The applicants, if not satisfied with the ruling's merit, ought to have filed an appeal to the Court of Appeal. The court is functus officio on the merits of the application and finds no justified basis to interfere with the finality of the decision. The application dated 16th May 2026 is held to be an abuse of court process and without merit and is dismissed with costs to the petitioner. Ruling to apply in Petition No. E053 of 2026. 2. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner: Munyalo /b Okundu Respondents: Ms Okello Interested Party: Chepkoit h/b Anyul