https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1727

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROВІ ELRC PETITION NO. E013 OF 2026 KEVIN OGARO BOSIRE --------------------------------------------------------------------PETITIONER -VERSUS- KENYA UNION OF POST PRIMARY TEACHERS (KUPPET) ----------------1ST RESPONDENT THE SECRETARY GENERAL KUPPET ------------------------------------------2ND RESPONDENT THE EXECUTIVE SECRETARY KUPPET NAIROBI BRANCH--------------3RD RESPONDENT THE COUNTY LABOUR OFFICER, NAIROBI COUNTY --------------------4TH RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. The 1st, 2nd and 3rd respondent filed an application vide Notice of Motion dated 10th March, 2026, seeking the joinder of the Teachers Service Commission (TSC) as an Interested Party in these proceedings. The Application was premised on Rule 55 of the Employment and Labour Relations Court (Procedure) Rules, 2024, Order 1 Rule 10(2) of the Civil Procedure Rules and the inherent jurisdiction of this Honourable Court under Section 12 of the Act and sought for the following orders- 2. THAT the Teachers Service Commission be and is hereby joined to these proceedings as an Interested Party. 3. THAT upon joinder, the Interested Party be granted leave to file and serve its response and any relevant documentation within such period as the Court may direct. 4. THAT the costs be in the cause. Grounds of the application 1. THAT the dispute before the Court concerns payroll deduction processes affecting teachers employed by the Teachers Service Commission and the alleged alteration of Union membership deduction categories. 2. THAT the Teachers Service Commission is established under Article 237 of the Constitution of Kenya and is the employer of all post-primary teachers in Kenya. 3. THAT KUPPET is the largest registered Trade Union in the Education sector, enjoying recognition by the Teachers Service Commission to represent post primary teachers and trainers in Kenya. 4. THAT the Teachers Service Commission administers the TPay payroll platform, the digital system through which teachers initiate, approve and manage third-party deductions from their salaries. 5. THAT the 1st Respondent Union participates in the TPay system strictly as a third-party deduction code holder and does not control or administer the platform. 6. THAT the central question raised in the Petition concerns whether Union members were reclassified from bona fide membership status to agency fee status, an issue that directly concerns the operation of the TPay payroll system. 7. THAT the Teachers Service Commission possesses unique technical and administrative knowledge regarding the TPay system, including: (a). how payroll deduction transactions are initiated; (b). how approval and authentication are carried out by teachers; and (c). the entity capable of effecting any changes in deduction status. 8. THAT without the participation of the Teachers Service Commission, this Honourable Court may not have the benefit of the primary evidence necessary to determine the factual and technical issues raised in the Petition. 9. THAT the joinder of the Teachers Service Commission is therefore necessary to enable the Court to effectually and completely adjudicate upon the issues in dispute, as contemplated under Order 1 Rule 10(2) of the Civil Procedure Rules and Rule 55 of the ELRC Rules. 10. THAT the Supreme Court in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others established that an interested party is one who has an identifiable stake in the proceedings and whose participation will assist the court in the determination of the issues in dispute. 11. THAT the Supreme Court further clarified in Francis Karioki Muruatetu & Another v Republic & 5 Others that joinder is appropriate where a party demonstrates a direct stake in the proceedings, and that its participation will assist the court in resolving the issues before it. 12. THAT the Teachers Service Commission meets this threshold since it administers the payroll system forming the foundation of the dispute; and its evidence is necessary to explain the technical and administrative workings of the TPay platform. 13. THAT no prejudice will be suffered by any party if the Teachers Service Commission is joined, whereas failure to join it risks the Court determining issues without the benefit of critical evidence. 14. THAT it is therefore in the interests of justice, fairness and the overriding objective of the Court that the Teachers Service Commission be joined to these proceedings. 15. The application was supported by the affidavit sworn on the 10th March 2026 by AKELO M.T MISORI Response by the proposed interested party 1. The proposed interested party opposed the application for joinder as interested party in the election petition vide replying affidavit sworn by Chrisantose Ogony on the 13th April 2026 who stated as follows- 2. THAT from the outset, I wish to state on the advice of the Commission's Counsel on record that:- a) The Application before Court does not meet the threshold for joinder Applications set out by the Supreme Court of Kenya in the case of Francis Karioki Muruatetu & Another -vs- Republic & 5 Others, Petition No.15 as consolidated with No.16 of 2013 [2016] EKLR, hence ought to be dismissed. b) The purpose, object and scope of the instant Application violates the duty and role of an Interested Party as set out by the Supreme Court of Kenya in the case of Methodist Church in Kenya v Fugicha & 3 others (Petition 16 of 2016) [2019] KESC 59 (KLR) (23 January 2019) (Judgment) 1. THAT the Applicant has not placed before Court any material or evidence to demonstrate that the Commission's participation in the matter as an Interested Party will add novel, critical and weighty issues to facilitate complete adjudication of the matter before Court. 2. THAT the Substratum of the Petition relates to a disputed Branch election conducted by the Respondents in Nairobi County which matter is exclusively within the mandate of the Respondents. 3. THAT as the Court may discern from the Petition, the branch election was impugned on two grounds namely, the date of the election being on a Saturday and the propriety of the Register of members. 4. THAT as an employer, the Commission has no role to play in union elections. Further, the Commission has no legal mandate in either fixing the election date or maintaining the register of members of a specific branch of the union. 5. THAT in the event of non-joinder, the Applicant has not demonstrated the prejudice they may suffer. Accordingly, the Applicant has not shown sufficient cause why the Commission should be enjoined in these proceedings. THAT the Applicant is guilty of unreasonable and inexcusable delay in filing the instant Application hence is not deserving of the discretionary orders of this Court. Decision 1. The application was canvassed by way of written submissions filed by the applicant and the proposed interested party. 2. Before the court is an election petition of a trade union. The petitions are to be decided under the gazetted The Employment And Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions. The applicant invoked Rule 55 of the Court Rules ,2024 which state as follows- ‘(1)The Court may, on its own motion where it considers it fit, or upon application by a party, serve or order service of a pleading on any person whom it is satisfied may be interested, affected or necessary for efficient and final determination of the dispute. (2)The Court may summon any person or expert for the purposes of examination of facts and full adjudication of a dispute. (3)A party may request the Court that a particular expert, if any, who took part in and is conversant with particulars of any matter in issue, makes representation in writing or be called upon to attend the hearing of the case and give evidence. (4)The Court may serve or order service of pleadings and documents on any party in a suit.’ 1. Under the The Employment And Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, a respondent is defined as follows- “respondent” in relation to a petition, means— (a) the person whose election is complained of; (b) the returning officer or any person responsible for management of a trade union election; and (c) any other person whose conduct is complained of in relation to an election.’ There is no definition of an interested party. 1. The threshold of joinder of interested party has been defined by the superior courts in authorities cited by the parties. The applicable legal principles on joinder were settled by the Supreme Court in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, where the Court held that an Interested Party is a party with an identifiable stake or legal interest in the proceedings whose participation will assist the Court in effectually and completely determining the dispute. The Supreme Court further reaffirmed this position in Francis Karioki Muruatetu & Another v Republic & 5 Others where it stated that an applicant for joinder must demonstrate: a. A proximate and identifiable stake in the proceedings; b. The prejudice likely to be suffered if joinder is denied; and c. The relevance and usefulness of the intended participation in assisting the Court determine the issues in dispute. 1. The court has the power to order a party to be joined as an interested party. 2. Before the court is an election petition for the KUPPET Nairobi branch, and a core issue is that petitioners have been placed irregularly on the agency list, thus disfranchised as voters in the election. The employer is the one who made the union deductions and remitted them pursuant to the provisions of the Labour Relations Act. The defence is that the intended interested party has in place a TPAY payroll platform, and it is the said Commission which discerns how deductions are initiated, authenticated, and processed in the TPAY system. 3. I find the foregoing established a solid basis to support a finding that the application met the threshold in The Supreme Court position in Francis Karioki Muruatetu & Another v Republic & 5 Others where it stated that an applicant for joinder must demonstrate: a. A proximate and identifiable stake in the proceedings; b. The prejudice likely to be suffered if joinder is denied; and c. The relevance and usefulness of the intended participation in assisting the Court determine the issues in dispute.’ 1. I further hold that the Teachers Service Commission is a necessary party in the proceedings. 2. The application dated 10th March 2026 is allowed, and the proposed interested party is joined in the petition as an interested party. The Commission is granted 14 days to file a response to the petition on the allegations related to its payroll system. The 1,2 and 3rd respondents to serve the pleadings on the interested party within 3 days of this order and responses be filed within 14 days. Pretrial to be held on the 14th July 2026. Ruling to apply in PET E053 OF 2026 Murgor and others v KUPPET. 3. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH JUNE, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Applicants – Ms Akello Petitioner- Theddeous Proposed Interested Party – Ochieng