https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2363

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELECTION PETITION NO. E040 OF 2026 JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION IN THE MATTER OF: Articles 41, 47, 50 and 159 of the Constitution of Kenya, 2010 AND IN THE MATTER OF: The Labour Relations Act, No. 14 of 2007 AND IN THE MATTER OF: The Employment and Labour Relations Court Act, 2011 AND IN THE MATTER OF: The Constitution of the Railways Workers Union (Kenya) AND IN THE MATTER OF: The Purported National Elections of the Railways Workers Union (Kenya) allegedly conducted on 16th January 2026 BETWEEN JOHN CHUMO.............................................................................................................PETITIONER VERSUS RAILWAYS WORKERS UNION (KENYA).....................................…….…..1ST RESPONDENT ERIC KIPKOECH..............................................................................................2ND RESPONDENT JUDITH NAFULA.............................................................................................3RD RESPONDENT BERNARD KARIMI..........................................................................................4TH RESPONDENT THE REGISTRAR OF TRADE UNIONS........................................................5TH RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. The petitioner, John Chumo, aggrieved with the conduct of elections of the 2nd respondent on 16th January 2026, filed an election petition dated 3rd February, 2026 seeking for the following relief- 2. A declaration that the purported National Elections of the Railways Workers Union (Kenya) conducted on 16th January, 2026 were unconstitutional, unlawful, null and void ab initio; 3. An order quashing and setting aside the said elections and all resolutions emanating therefrom; 4. An order restraining the 2nd, 3rd and 4th Respondents from holding themselves out or acting as officials of the Union; 5. An order prohibiting the 5th Respondent from registering or gazetting the purported officials elected on 16th January, 2026; 6. A mandatory order directing that fresh Union elections be conducted strictly in accordance with the Union Constitution and the Labour Relations Act, following duly conducted Branch General Elections; 7. Costs of this Petition; and 8. Any other or further relief that this Honourable Court may deem just and fit. 9. The 2nd- 4th respondents in response to the petition filed a Notice of preliminary objection dated 4th March 2026 and sought for the petition to be struck off on the following grounds:- 10. Sub Judice – Multiplicity of Proceedings -THAT the present Petition is fatally incompetent and an abuse of the Court process as the Petitioner has already instituted Miscellaneous Application No. E027 of 2026 before this Honourable Court involving the same parties, the same subject matter, and substantially the same issues relating to the alleged Railways Workers Union elections purportedly conducted on 16th January 2026. THAT the institution of the present Petition while the earlier suit remains pending violates the mandatory provisions of Section 6 of the Civil Procedure Act, which bars a court from proceeding with a matter where the issues in dispute are directly and substantially in issue in a previously instituted suit between the same parties. THAT the Petitioner has deliberately engaged in parallel litigation and forum manipulation, thereby inviting this Honourable Court to determine identical issues in multiple proceedings, which conduct amounts to gross abuse of the court process and a misuse of judicial time and resources. THAT the present Petition is therefore sub judice, vexatious and legally untenable and ought to be struck out with costs. 11. Lack of Jurisdiction and Improper Invocation of Election Petition Procedure – THAT the Petition is premised on an improper, irregular and legally untenable invocation of the Court’s election petition jurisdiction. THAT disputes relating to trade union elections are strictly governed by Sections 34 and 35 of the Labour Relations Act, which provide the statutory framework within which such disputes may be lodged and determined. THAT the Petitioner has not invoked the jurisdiction of this Court in the manner contemplated by the Labour Relations Act, and has instead attempted to convert an internal trade union governance dispute into a constitutional election petition without any lawful basis. THAT jurisdiction is everything and without it the Court must immediately down its tools as pronounced in Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, and consequently this Honourable Court cannot entertain a Petition founded upon an improperly invoked jurisdictional framework. THAT the Petition is therefore procedurally defective, incompetent and incapable of sustaining the jurisdiction of this Honourable Court. 12. Absence of Locus Standi - THAT the Petitioner has not demonstrated the legal capacity or locus standi required to institute the present Election Petition in the manner presented. THAT disputes relating to trade union elections must be instituted within the framework provided under the Labour Relations Act and the internal dispute mechanisms under the Union Constitution, which procedures the Petitioner has deliberately bypassed. THAT the Petitioner has therefore failed to establish any recognizable legal standing capable of sustaining the present Petition before this Court. 13. Abuse of the Court Process -THAT the present Petition constitutes a classic abuse of the Court process in that: a. The Petitioner has instituted multiple proceedings over the same dispute. The Petitioner seeks to litigate identical issues simultaneously in separate proceedings. The Petition is designed to vex, harass and embarrass the Respondents through duplicative litigation. THAT the Court has an inherent jurisdiction to protect its process from abuse, and where proceedings are shown to be oppressive, duplicative or vexatious, the Court must summarily terminate them. 5. Petition is Incurably Defective in Law. 14. THAT the Petition as drawn is legally unsustainable, procedurally defective and incurably incompetent, and no amount of amendment can salvage a proceeding instituted in violation of: Section 6 of the Civil Procedure Act (Sub Judice). Sections 34 and 35 of the Labour Relations Act. The established principles governing trade union election disputes. THAT the Petition offends the settled principles set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, which establish that where a suit is founded upon a clear point of law rendering it incompetent, the Court ought to terminate the proceedings at the earliest opportunity. 15. The petitioner filed a replying affidavit dated 15th June 2026 in opposition to the Notice of preliminary objection and responded as follows- A.RESPONSE TO GROUND 1: SUB JUDICE AND MULTIPLICITY OF PROCEEDINGS - THAT I admit that I filed Miscellaneous Application No. E027 of 2026 in this Honourable Court. However, I deny that the said application renders the present Petition sub judice, an abuse of the court process, or constitutes multiplicity of proceedings. THAT the said Miscellaneous Application was filed strictly as a preservatory and interlocutory measure to maintain the status quo pending the filing and hearing of the substantive Election Petition. The said application sought interim orders to restrain the Respondents from acting as officials of the Union and to prohibit the 5th Respondent from registering the purported officials, pending the hearing and determination of the substantive Petition. THAT the purpose of the Miscellaneous Application was not to determine the validity of the elections or to litigate the merits of the dispute. It was a procedural step to ensure that the substratum of the Petition was not defeated before the Petitioner could be heard on the merits. THAT the instant Election Petition seeks substantive declaratory and final orders, including: A declaration that the purported National Elections of the Union conducted on 16th January 2026 were unconstitutional, unlawful, null and void ab initio; An order quashing and setting aside the said elections and all resolutions emanating therefrom; An order restraining the 2nd, 3rd, and 4th Respondents from holding themselves out or acting as officials of the Union; An order prohibiting the 5th Respondent from registering or gazetting the purported officials; and a mandatory order directing that fresh Union elections be conducted strictly in accordance with the Union Constitution and the Labour Relations Act. THAT the reliefs sought in the Miscellaneous Application and the substantive Petition are fundamentally different. The former seeks interim relief, while the latter seeks final and determinative relief. The issues in the two proceedings are therefore not directly and substantially the same as required for the doctrine of sub judice to apply. THAT I have not engaged in "parallel litigation" or "forum manipulation." Both the Miscellaneous Application and the Petition were filed before the same court, the Employment and Labour Relations Court, which has exclusive jurisdiction over this matter. Filing an application for interim relief is a standard and legitimate litigation practice. THAT the Respondents have not demonstrated any prejudice suffered as a result of the filing of the Miscellaneous Application. The Respondents are the Union officials who oversaw the impugned election and are the proper parties to defend this action. B. RESPONSE TO GROUND 2 - LACK OF JURISDICTION AND IMPROPER INVOCATION OF ELECTION PETITION PROCEDURE -THAT I deny the Respondents' allegations that the Petition is improperly invoked or that this Honourable Court lacks jurisdiction. THAT the Petitioner has correctly invoked the jurisdiction of this Honourable Court under Article 162(2)(a) of the Constitution, which establishes the Employment and Labour Relations Court to hear and determine disputes relating to employment and labour relations, including trade union governance. THAT further, Section 12 of the Employment and Labour Relations Court Act, 2011, grants this Court 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 the Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations. The jurisdiction of this Court extends to disputes concerning the registration and election of trade union officials. THAT the Petition is specifically anchored on Sections 34 and 35 of the Labour Relations Act, 2007, which govern the conduct of trade union elections and disputes arising therefrom. The Petition explicitly pleads these provisions. THAT Section 34 of the Labour Relations Act provides that the election of officials of a trade union shall be conducted in accordance with their registered constitutions. The Petitioner is challenging the validity of the Union elections for failing to comply with the Union Constitution and the Labour Relations Act. This is precisely the type of dispute that this Court is mandated to hear and determine. THAT the Respondents' reliance on Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1 is misplaced. That case stands for the proposition that a court cannot assume jurisdiction it does not have. In the present case, this Court clearly has jurisdiction under the Constitution and statute. The question is whether the Petition has merit, which is a matter for the substantive hearing, not a preliminary objection. C. RESPONSE TO GROUND 3: ABSENCE OF LOCUS STANDI -THAT I deny the allegation that I lack locus standi to institute this Petition. THAT I am the lawful and substantive Secretary General of the Railways Workers Union (Kenya). I annex hereto a copy of my appointment/ election certificate marked "JC-1". THAT I am also a registered member of the Union. As the Secretary General, I have a direct and substantial interest in the governance and proper functioning of the Union. THAT the Respondents themselves, in their Preliminary Objection, acknowledge that this dispute relates to the internal governance of the Union. It is contradictory for the Respondents to argue that the Secretary General lacks standing to challenge the conduct of union elections. THAT the impugned elections were conducted in blatant violation of the Union Constitution and the Labour Relations Act. Specifically: i. The elections were conducted without a lawfully constituted Delegates Congress, contrary to Rule 5(a) of the Union Constitution; ii. The purported elections were not convened by the Secretary General as mandatorily required under Rule 5(c) of the Union Constitution; iii. The Respondents purported to convene a Special Congress without compliance with Rule 7 of the Union Constitution, which requires a written requisition by not less than two-thirds of all paid-up members or Branch Officials, and the prior deposit of Kshs. 409,000/=. THAT as the Secretary General and a member of the Union, I have a constitutional and statutory right under Article 41 of the Constitution to ensure that the Union's elections are conducted in accordance with the law. THAT on the issue of exhaustion of internal dispute mechanisms, the Respondents' own actions made resort to internal mechanisms futile. The Respondents are the very persons who violated the Constitution. It would be illogical and an exercise in futility to force me to seek redress from the very persons who violated the Constitution. D. RESPONSE TO GROUND 4: ABUSE OF THE COURT PROCESS -THAT I deny that my actions constitute an abuse of the court process. THAT I have not instituted "multiple proceedings over the same dispute." I have filed one substantive Petition and one interlocutory application (Miscellaneous Application). This is a standard and legitimate litigation procedure. It is not only legitimate but often necessary to file a substantive claim and immediately seek interim orders to preserve the subject matter of the litigation. THAT the Respondents have provided no evidence of "vexation" or "harassment." The Respondents are the Union officials who oversaw the impugned election. They are the proper parties to defend this action. Defending a legitimate legal claim is not oppression. THAT the Respondents are using this Preliminary Objection as a tactical ploy to delay the hearing of the substantive Petition and to frustrate my legitimate claim. This is itself an abuse of the court process. E. RESPONSE TO GROUND 5: PETITION IS INCURABLY DEFECTIVE IN LAW -THAT I deny that the Petition is incurably defective or legally unsustainable. THAT the Petition is well pleaded and clearly sets out a cause of action, detailing the specific violations of the Union Constitution (Rules 5 and 7) and the Labour Relations Act (Sections 34 and 35). These are serious allegations that require a full hearing on the merits. THAT the Petition is compliant with the Labour Relations Act and the Constitution of the Railways Workers Union (Kenya). The Petition is not defective at any point. THAT an election conducted without jurisdiction, without a lawful organ, and in contravention of mandatory constitutional provisions is void ab initio and incapable of conferring legitimacy. These are serious issues that cannot be determined summarily on a Preliminary Objection. 33.THAT the alleged defects pointed out by the Respondents are matters that can be adequately addressed and ventilated during the hearing of the main Petition. The Respondents have not demonstrated why the entire suit should be struck out at the preliminary stage. Decision 1. The Notice of Preliminary Objection was canvassed by way of written submissions. Whether the notice of preliminary objection is merited 1. The respondent raised a Notice of Preliminary Objection dated 4th March 2026, (outlined above), seeking the court to strike out Election Petition No. E040 of 2026 in limine for being sub judice, incompetent and an abuse of the court process 2. The court, upon perusing the court record, found that the ELRC Misc. E027 OF 2026 was struck out by the ruling of Justice Wasilwa on 28th May 2026, thus there is no issue of sub judice. Before the court is an election petition. The issue of the petitioner's locus is disclosed in the petition as being the Secretary General of the union and a member. 3. On whether the petition is incompetent due to non-compliance with the Trade Union election petitions rules, the respondent submitted as follows:- On jurisdiction, the Respondents submit that the Petition has been brought under an improper. and legally untenable framework. The dispute before Court concerns trade union elections and governance, matters specifically regulated under the Labour Relations Act together with the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025. The Petitioner has however sought to convert what is essentially a trade union electoral dispute into a generalized election petition while bypassing the mandatory statutory framework specifically established for such disputes. The Gazette Notice establishing the Trade Union Election Disputes Procedure and Practice Directions expressly provides that disputes relating to trade union elections constitute disputes for enforcement of fair labour rights under Article 41 of the Constitution and must be instituted within the framework contemplated under the Constitution, the Labour Relations Act and the Employment and Labour Relations Court Rules. The Petitioner cannot selectively invoke constitutional provisions while disregarding the very procedural architecture specifically designed for trade union election disputes. Further, the Practice Directions expressly require that an election petition shall state that the Petitioner is entitled to petition under Section 34(4) of the Labour Relations Act, which provides the statutory basis for disputes arising directly or indirectly from elections of trade union officials. Failure to properly anchor the proceedings within Section 34(4) is not a mere procedural technicality but a jurisdictional defect because jurisdiction flows from statute and cannot be created through drafting ingenuity or constitutional labelling the law remains settled that jurisdiction is everything. In Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court held that where jurisdiction is absent, the Court must immediately down its tools. The present proceedings, having been commenced under an improper legal framework and contrary to mandatory statutory procedures, cannot confer jurisdiction upon this Court. The Respondents further submit that the Petition suffers additional procedural defects arising from failure to comply with mandatory procedural requirements governing trade union election disputes. The Practice Directions prescribe strict timelines requiring election petitions to be filed within twenty-one days from declaration of election results and served together with affidavits and exhibits within prescribed periods. They further prescribe mandatory content requirements including particulars of parties, venue and date of elections, declaration of results and supporting documentation. These are substantive procedural safeguards designed to facilitate efficient disposal of election disputes and non-compliance renders proceedings incompetent. 4. Conversely, on the issue, the Petitioner submits that the objection is without merit. That this Court's jurisdiction is clear and properly invoked: - Article 162(2)(a) of the Constitution establishes this Court to hear and determine disputes relating to employment and labour relations. Section 12 of the Employment and Labour Relations Court Act, 2011, grants this Court 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 the Act. The jurisdiction of this Court extends to: "disputes concerning the registration and election of trade union officials" The jurisdiction of the Employment and Labour Relations Court is not limited to the determination of disputes arising out of a contract of employment between an employee and an employer; the Court can also determine any constitutional violations of the rights of any party arising from an employee-employer relationship. The Petition is specifically anchored on Sections 34 and 35 of the Labour Relations Act, 2007, which govern the conduct of trade union elections and disputes arising therefrom. Section 34 provides that the election of officials of a trade union shall be conducted in accordance with their registered constitutions. The Respondents rely on Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1 for the proposition that "jurisdiction is everything". The Petitioner does not dispute this principle. However, the principle applies where a court assumes jurisdiction it does not have. Here, the Court clearly has jurisdiction under the Constitution and statute. The question is not whether the Court has jurisdiction, but whether the Petitioner has proven the allegations, which is a matter for the trial. On the issue of exhaustion of internal mechanisms, the Petitioner submits that the Respondents' own actions made resort to internal mechanisms futile. The Respondents are the very persons who violated the Constitution. It would be illogical to force the Petitioner to seek redress from the very persons who violated the Constitution. Moreover, the Petitioner has locus to approach the Court directly where there are allegations of serious constitutional and statutory violations. 5. The court established that the instant election petition is grounded under articles 41, 47, and 50 of the constitution, section 34,35 and 36 of the Labour Relations Act 2007 and the union constitution (paragraphs 1 of the petition). The petitioner pleads that they challenged the election of the union held on 16th January 2026 and, in prayers, seek the nullification of the election results. The Employment And Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions define petitioner as follows- ‘“petitioner” in relation to an election petition, means the person who files or lodges an election petition or a cross petition arising from a trade union election process;’ Rule 5 states- ‘5. (1) An election petition shall expressly state that the petitioner is entitled to petition under section 34(4) of the Labour Relations Act which provides that disputes arising from election of trade union officials or connected directly or indirectly to the elections may be referred to the Court.’ The court finds that the issues raised of non- compliance with the rules cannot be determined under the objection. The respondent has not filed a substantive response; thus, facts are not ascertained. On a prima facie basis, the petition before the court discloses that the cause of action is the elections of the union. The court is guided by section 20 of the Employment and Labour Relations Act not to decide matters on technicalities-’20(1)In any proceedings to which this Act applies, the Court shall act without undue regard to technicalities.’ 6. The threshold for a proper notice of preliminary objection is as pronounced in Mukisa Biscuits Manufacturing Co. Ltd -Vs- West End Distributors Ltd. [1969] E.A., where Lord Charles Newbold P. held that a proper preliminary objection constitutes a pure point of law. The Learned Judge then held that:- ",…A preliminary Objection is in the nature of what used to be a demurer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought in the exercise of judicial discretion’. The notice of preliminary objection by the 1st to 4th Respondents is held as improper and immature and is dismissed with costs to the petitioner in the cause. 7. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JULY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner- Tuwei h/b Korir Respondent/Objector -Kwamboka