https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7592

Centre For Public Policy and Research v Cabinet Secretary Ministry of Labour and Social Protection & 8 others (Judicial Review Miscellaneous Application E048 of 2026) [2026] KEHC 7592 (KLR) (Commercial and Tax) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7592 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Judicial Review Miscellaneous Application E048 of 2026 WM Musyoka, J June 4, 2026 Between Centre For Public Policy and Research Applicant and Cabinet Secretary Ministry of Labour and Social Protection 1st Respondent Registrar Of Trade Union 2nd Respondent Central Organisation Of Trade Unions (Kenya) 3rd Respondent Attorney General 4th Respondent and Francis Atwoli 1st Interested Party Trade Union Congress 2nd Interested Party Kenya National Union of Teachers 3rd Interested Party Kenya Medical Practitioners & Dentists Union 4th Interested Party Kenya Union of Post Primary Education Teachers (Kuppet) 5th Interested Party Ruling 1.These proceedings initially commenced at the High Court at Kerugoya, as Kerugoya HCJR No. E001 of 2026. The matter was placed before Muriithi J, on 24th March 2026, who directed that the matter be transferred to the Judicial Review Division, Nairobi, on the basis that it sought orders against parties who were based at Nairobi. The transfer order was effected and the matter was assigned the instant number, Milimani HCJR Misc. No. E048 of 2026. 2.The matter is at the ex parte stage, where leave is being sought to commence judicial review proceedings. It was directed that the application be served. It was served, and some of the respondents and interested parties have placed themselves on record, and filed responses. 3.The judicial review orders contemplated are for certiorari, prohibition and declaration. The certiorari is to quash an election that had been conducted on 14th March 2026. The prohibition is to bar registration of the persons elected at that election. The declaration sought is that the purported election was unconstitutional, invalid, null and void. 4.The allegation is that the 2nd respondent had, by circular, given a statutory timeline for the 2026 trade union election cycle, directing that all branch elections be conducted between 5th January 2026 and 31st March 2026, so that national elections begin on 1st April 2026 and end on 30th June 2026. The elections for the officials of the 3rd respondent and the 2nd interested party were to follow, to be conducted by 30th August 2026. The complaint is that the 3rd respondent went against that circular, and conducted its elections on 14th March 2026, before the branch and national elections of the union had been held. 5.A copy of the circular from the 2nd respondent is attached, dated 25th September 2026; and so is a copy of a letter from the 3rd respondent, dated 14th March 2026, announcing the outcome of the elections it had conducted, and declaring the 1st interested party as duly elected. 6.The 3rd respondent and the 1st, 3rd and 4th interested parties entered appearance on 26th March 2026. They contemporaneously filed an application, in which they sought to be heard during vacation, a stay of proceedings pending the hearing and disposal of their preliminary objection, the hearing of their preliminary objection to be prioritised, transfer of the instant matter to the Employment and Labour Relations Court for consolidation with another matter pending there, being ELRC Petition No. E088 of 2026, the striking out of this cause in the alternative, and costs. 7.The factual background is that the elections were conducted strictly in accordance with the law, and that, if there was an issue with it, the appropriate forum for redress was not the High Court, but the Employment and Labour Relations Court. There exists another suit, pending before the Employment and Labour Relations Court, challenging the same election, seeking similar reliefs, being ELRC Petition No. E088 of 2026. It is asserted that the Employment and Labour Relations Court was the court conditionally and statutorily conferred with jurisdiction to hear and determine disputes around employment and labour relations, including trade union elections, it was already seized of the dispute and the matter was sub judice. It is averred that the dispute is governed by the Trade Union Elections Disputes (Practices and Procedure) Rules, 2025, which provide the procedural and jurisdictional framework for adjudication of such disputes. 8.Exhibited are a number of documents. They include an order made in ELRC Petition No. E088 of 2026, on 25th March 2026, declining to grant temporary relief, and giving directions on filing of written submissions for a preliminary objection. There are also various filings, mainly of interlocutory applications. Curiously, no pleadings are exhibited. 9.The preliminary objection, filed contemporaneously with the application, dated 26th March 2026, raises the same jurisdiction issues, around Article 162(2) of the Constitution, the Trade Union Elections Disputes (Practices and Procedure) Rules, 2025 and the pendency of ELRC Petition No. E088 of 2026. 10.I directed, on 9th April 2026, that the jurisdiction issue be addressed first, hence written submissions be filed on it, and I required canvassing of the preliminary objection by way of written submissions. Both sides have filed written submissions. 11.The applicant argues that the jurisdiction of the Employment and Labour Relations Court stems from Article 162(2) of the Constitution and section 12(1)(2) of the Employment and Labour Relations Court Act, Cap 8E, Laws of Kenya. It is submitted that the dispute did not emanate from an employer-employee relationship, and that there was no nexus between the applicant and the respondents. It is argued that the jurisdiction of the Employment and Labour Relations Court is limited to disputes relating to employment and labour relations, by dint of Article 162(2) of the Constitution, and, because of that, the High Court was properly seized of the matter. 12.On the sub judice rule, it is submitted, based on Kenya National Commission on Human Rights vs. Attorney General; Independent Electoral Commission & 16 others (Interested Parties), that the suit was not filed by the same parties, and, therefore, the said rule had not been offended. 13.The respondent submit that there is no jurisdiction in the High Court to determine the suit, and cites Owners of Motor Vessel "Lillian S" vs. Caltex Oil (Kenya) Ltd [1989] eKLR. On sub judice, it is submitted that the other suit raises similar issues as the instant suit, and Kenya National Commission on Human Rights vs. Attorney General & another [2020] eKLR and Thiba Min Hydro Co. Ltd vs. Josphat Karu Ndwiga [2015] eKLR are cited. 14.The starting point should be with Article 162(2) of the Constitution, which envisages the Employment and Labour Relations Court, and delineates its jurisdiction to hearing and determining disputes on employment and labour relations. Article 165(5) of the Constitution then declares that the High Court shall not have jurisdiction over matters that fall within the jurisdiction of the courts contemplated by Article 162(2). 15.Article 162(2) provides:“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—(a)employment and labour relations; and(b)...” 16.Article 165(5) states:“The High Court shall not have jurisdiction in respect of matters—(a)…(b)falling within the jurisdiction of the courts contemplated in Article 162(2).” 17.Labour or trade unions are about organised labour, and any disputes, concerning organisation and management of trade unions, would be a matter of labour relations. The legislation that governs trade or labour unions in Kenya is the Labour Relations Act, Cap 233, Laws of Kenya. Elections of officials of a trade union is a matter of labour relations. The High Court would have no jurisdiction over a dispute relating to such matters. 18.The Employment and Labour Relations Court is established by the Employment and Labour Relations Court Act. The scope of the jurisdiction of the court is outlined in section 12 of that law, which identifies some of the incidences of employment and labour relations, in respect of which the Employment and Labour Relations Court has jurisdiction, which include disputes concerning the registration and election of trade union officials. Of course, section 12 of the Employment and Labour Relations Court Act is to be read together with Article 162(2) of the Constitution, for the Employment and Labour Relations Court Act draws is legitimacy from that constitutional provision. 19.The relevant parts of section 12 of the Employment and Labour Relations Court Act provide as follows:“12.Jurisdiction of the Court(1)The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including —(a)disputes relating to or arising out of employment between an employer and an employee;(b)disputes between an employer and a trade union;(c)disputes between an employers' organisation and a trade unions organisation;(d)disputes between trade unions;(e)disputes between employer organizations;(f)disputes between an employers' organisation and a trade union;(g)disputes between a trade union and a member thereof;(h)disputes between an employer's organisation or a federation and a member thereof;(i)disputes concerning the registration and election of trade union officials; and(j)disputes relating to the registration and enforcement of collective agreements.(2)An application, claim or complaint may be lodged with the Court by or against an employee, an employer, a trade union, an employer's organisation, a federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose.” 20.Section 12(1)(i) of the Employment and Labour Relations Court Act identifies “disputes concerning the registration and election of trade union officials” as among the category of cases that are within the jurisdiction of the Employment and Labour Relations Court. Section 12(2) identifies the categories of individuals and entities that may commence action under the Employment and Labour Relations Court Act. It lists “an employee, an employer, a trade union, an employer's organisation, a federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose,” as the litigants before that court. I note that the provision is permissive, for it is couched in the language of “may.” That list is not exhaustive, and any other person may initiate the proceedings, so long as it relates to “employment and labour relations.” 21.Even if the language of section 12(2) of the Employment and Labour Relations Court Act were to be construed as mandatory rather than permissive, and the list of possible litigants before that court as closed rather than expandable, that would still not exclude persons and entities that are not listed in there totally. The Employment and Labour Relations Court Act is designed to provide for ordinary civil litigation, in the realm of “employment and labour relations.” The provisions of that Act do not cover public interest litigation, which largely depends on the Constitution and the Fair Administrative Action Act, Cap 7L, Laws of Kenya, and the Rules of procedure made under those two, which permit, under Article 22 of the Constitution, filing of causes by “every person.” 22.Labour relations are governed by the Labour Relations Act. Section 34 of that statute provides for elections of officials of a trade union. Section 34(4) provides that “Disputes arising from, or connected directly or indirectly to, elections held under this section may be referred to the Industrial Court.” The Employment and Labour Relations Court is the successor of the Industrial Court. 23.Recently, the Chief Justice issued practice directions, known as the Employment and Labour Relations Court (Trade Unions Elections Dispute) Procedure and Practice Directions, 2025, to provide a framework for resolution of trade union election disputes. These rules of procedure and practice were specifically made for the Employment and Labour Relations Court, and not the High Court, given that the Employment and Labour Relations Court is the court mandated to handle any trade union elections disputes. It would not matter who has initiated the election dispute cause, so long as it pertains to a trade union election dispute, it would be a labour relations issue, falling squarely within the purview of Article 162(2) of the Constitution. 24.I believe that what I have discussed above is adequate to demonstrate that anything to do with trade unions, inclusive of elections of their officials, would be a matter of labour relations, in respect of which the High Court would have no jurisdiction, and the appropriate court, to handle any disputes around organised labour or trade union affairs, would be the Employment and Labour Relations Court, regardless of the person or entity commencing the action. 25.I believe what I have discussed above would be adequate to dispose of the preliminary objection. However, I have perused the pleadings in ELRC Petition No. E008 of 2026. Except for the petitioners, all the other parties, that is the respondents and the interested parties, are the same individuals and entities as have been sued in these instant judicial review proceedings. The dispute in that petition is on the same election. The petition itself has not been exhibited, but from what I have seen, the petitioners seek to have the same election nullified. There would be no point of litigating about the validity of the same election, before 2 different courts. 26.I have said enough, to demonstrate that the preliminary objection herein is merited. I uphold it. I shall direct, as I hereby do, that the cause herein be placed before the Employment and Labour Relations Court, for consideration of the possibility of the matter being handled by that court, and its consolidation with ELRC Petition No. E008 of 2026. Orders accordingly. DELIVERED, VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 4TH DAY OF JUNE 2026.W MUSYOKAJUDGEMr. Brian, Court Assistant.AdvocatesMr. Okoth, instructed by Mohammed Muigai LLP, Advocates for the ex parte applicant.Ms. Kwamboka, instructed by Kwamboka Marie & Associates, Advocates for the 3rd respondent and the 1st, 3rd, 4th and 5th interested parties.