https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1570

Edo & 12 others v Secretary General - Kenya Union of Post Primary Education Teachers (KUPPET) & 15 others (Election Petition E063 of 2026) [2026] KEELRC 1570 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1570 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Election Petition E063 of 2026 JW Keli, J June 5, 2026 IN THE MATTER OF ARTICLES 2(1), 3(1), 19, 20, 22, 23,25(c), 27(1), 35(1) (b) and 2, 36(1), 41(1) and 2, 47, 50, 258 and 259 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS AND IN THE MATTER OF LABOUR RELATIONS ACT LAWS OF KENYA AND IN THE MATTER OF THE CONSTITUTION OF THE KENYA UNION OF POST PRIMARY EDUCATION TEACHERS (KUPPET) AND IN THE MATTER OF THE ELECTIONS OF KENYA UNION OF POST-PRIMARY EDUCATION TEACHERS MANDERA BRANCH HELD ON 14/2/2026 Between Noor Hassan Edo 1st Petitioner Abdalla Ibrahim 2nd Petitioner Abdirizack Ibrahim 3rd Petitioner Монамednoor Ibrahim 4th Petitioner Abdilatif Ibrahim 5th Petitioner Halima Abdo Ali 6th Petitioner Монаmed Adan Yussuf 7th Petitioner Sumeya Hassan 8th Petitioner Harun Mohamed. 9th Petitioner Nuria Hassan. 10th Petitioner Janet Moraa 11th Petitioner Ahmed Mohamud 12th Petitioner Rafael Ochieng 13th Petitioner and Secretary General - Kenya Union Of Post Primary Education Teachers (kuppet) 1st Respondent The Registrar Of Trade Unions 2nd Respondent Ministry Of Labour & Social ProtectionCounty Labour Office Mandera County 3rd Respondent and Moulid Sugal Khalif 1st Interested Party Монаmed Osman 2nd Interested Party Hassan Mohamed Ibrahim 3rd Interested Party Hassan Mohamed 4th Interested Party Shamsa Adan Maalim 5th Interested Party Karen Karimi 6th Interested Party Abdishakur Daud 7th Interested Party Bashir Mohamed 8th Interested Party Wicklief Ochieng 9th Interested Party Hassan Adan 10th Interested Party Abdullahi Maalim Isaak 11th Interested Party Hassan Abdi Adan 12th Interested Party Adan Abdikhaliq Aabdullahi. 13th Interested Party Ruling 1.The petitioners were aggrieved with the conduct and outcome of the elections of the 1st respondent’s union, Mandera Branch, and filed petition dated 20th February 2026 seeking for the following orders-(a)A declaration that the Branch elections for the Kenya Union of Post Primary Education Teachers (KUPPET) Mandera Branch conducted on 14th February, 2026 was irregular, unfair, unverifiable and a sham in total violation of the Unions Constitution and thus null and void ab intio and the same be nullified and or quashed.(b)An order do issue declaring that any changes of officials of the Kenya Union of Post Primary Education Teachers (KUPPET) Mandera Branch made in respect of the election results declared on 14th February, 2026 by the 2nd Respondent, herein the Registrar of Trade Unions and any extract of officials of the Union issued by the Secretary General Kenya Union of Post Primary Education Teachers (KUPPET), subsequent to the said election, is unlawful and the same be nullified and/or quashed.(c)That the Honourable court be pleased to order for a fresh Branch election for the Kenya Union of Post Primary Education Teachers (KUPPET) Mandera Branch to be conducted in a free, fair and verifiable manner and in accordance with the Union Constitution, Labour Relations Act and the Constitution of Kenya.(d)That in the alternative, the Honourable Court to scrutinize and verify elections results for the several electoral positions conjunctively and/or disjunctively and make appropriate order fresh election on the respective positions that are found to have been affected by the aforesaid irregularities.(e)Costs of this Petition be borne by the Respondents.(f)Any other relief that this Honorable Court deems just and expedient in the circumstances. 2.Simultaneously, the petitioner filed application by way of notice of motion dated 20th February 2026 seeking for the following orders-a.That this Application be certified urgent and heard ex-parte in the first instance.b.That the Honourable Court be pleased to issue Conservatory Orders of Injunction, restraining and/or stopping the 2nd Respondent herein the Registrar of Trade Unions from registering any changes of officials of the Kenya Union of Post Primary Education Teachers (KUPPET) Mandera Branch resulting from the Branch Elections conducted on 14/2/2026 pending the hearing and determination of this application.c.That the Honourable Court be pleased to issue Conservatory Orders of Injunction, restraining and/or stopping the 2nd Respondent herein the Registrar of Trade Unions from registering any changes of officials of the Kenya Union of Post Primary Education Teachers (KUPPET) Mandera Branch resulting from the Branch Elections conducted on 14/2/2026 pending the hearing and determination of this Petition.d.That the Honourable Court be pleased to order the 1st and 3rd Respondents to produce in court the valid Voter Register, the Counterfoil of the Ballot Papers and sealed ballot boxes used during the elections in Mandera on 14th February, 2026 for scrutiny by the court.e.That this court gives certain directions as it may deem just and fit.f.That the respondents be condemned to pay costs. Grounds of the application 3.The 1st and 3rd Respondents conducted the Union Mandera Branch Elections on 14th February, 2026 in which, the Interested Parties were declared the winners in the elections. The Petitioners/Applicants are dissatisfied with the entire electoral process and the consequential results thereto and challenges the same before this Honourable Court. 4.The 1st and 3rd Respondents conducted an unlawful, irregular and unfair elections by allowing double voting, ghost voters, voter bribery and staffing of ballot papers in favour of the interested parties thereby giving unfair advantage to the Petitioners/Applicant's opponents. The Voting exercise was to begin at 6:00am and close at 5:00pm, however, the voting exercise opened at 8:00am and closed 3:00pm, this did not allow all the eligible voters to exercise their right to vote. The Polling clerks after allowing the vote rigging, closed the polling station in haste before the official closing time. This can be seen in the difference of votes especially in the Position of Executive Secretary, there is only a difference of 33 votes between the winner and the 1st runner up among other positions. 5.The entire elections results in Mandera Branch did not reflect the will of the members of the Union at all. The petitioners are apprehensive that unless this Honourable court urgently stops the registration of changes and the election materials preserved and produced in court for scrutiny, the Applicant's fundamental, constitutional and labour rights of fair, transparent and verifiable elections will be trampled upon and the entire petition will be rendered nugatory. The response 6.The 1st respondent filed Notice of Preliminary objection 10th day of March 2026 dated and raised the following grounds-a.This suit is ultra vires for seeking orders against the decision of the 2nd Respondent contrary to the provisions of Section 30 of the Labour Relations Act, as read with section 35(2) of the Act and with Rules 2 and 11 of the Employment and Labour Relations Court (Procedure) Rules 2024.b.The suit is improperly before the court as the Petitioners have not met the requirements of Rules 5(1), 5(3) and 10(1) of The Trade Unions Elections (Election Petition) Rules, Legal Notice 64 of 2014.c.The instant suit is incompetent as it does not meet the requirements of clause 5(1), 6(b) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions 2025. 7.The 1st respondent further filed a replying affidavit sworn by Maurice Akello Misori , the Secretary General of the 1st respondent, on the 7th March 2026, in opposition to the application. 8.The 3rd respondent entered an appearance through the office of the Attorney General and filed a replying affidavit sworn by Abdiaziz Hussein Mohammed (the third respondent and the returning officer of the impugned election), sworn on the 1st April 2026 . He denied any malpractice in the election. 9.The 2nd respondent entered appearance through the office of the Attorney General and filed a replying affidavit of Ann K. Kanake, sworn on the 5th March 2026, who, among others, stated that the application was overtaken by events, the elections results having been registered in the absence of objection. 10.The court directed that the preliminary objection be canvassed together with the Notice of Motion Application by way of written submissions. Decision 11.Issues for determinationa.Whether the notice of preliminary objection was merited.b.Whether the application was merited and available reliefs Whether the notice of preliminary objection was merited. 12.The Notice of Preliminary Objection was as follows-A. This suit is ultra vires for seeking orders against the decision of the 2nd Respondent contrary to the provisions of Section 30 of the Labour Relations Act, as read with section 35(2) of the Act and with Rules 2 and 11 of the Employment and Labour Relations Court (Procedure) Rules 2024.B. The suit is improperly before the court as the Petitioners have not met the requirements of Rules 5(1), 5(3) and 10(1) of The Trade Unions Elections (Election Petition) Rules, Legal Notice 64 of 2014.C. The instant suit is incompetent as it does not meet the requirements of clause 5(1), 6(b) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions 2025. 13.On perusal of the trade union election petition rules the Court established that the petition was filed within the 21 days of the elections as per the rules. I did not find the basis of the invoked laws and rules. Section 30 of the Labour Relations Act states- ‘30. Appeals against decision of RegistrarAny person aggrieved by a decision of the Registrar made under this Act may appeal to the Industrial Court against that decision within thirty days of the decision.’’ section 35(2) of the Act states- ‘2)Notice of any changes of officials or of the title of any officials shall be submitted to the Registrar in Form Q set out in the Second Schedule, within fourteen days after the change, together with the prescribed fee, and the Registrar shall register the change, subject to subsections (4) and (5).’ Further, Section 34 of the Act states-‘34. Election of officials(1)The election of officials of a trade union, employers’ organisation or federation shall be conducted in accordance with their registered constitutions.(2)The constitution of a trade union, employers’ organisation or federation shall—(a)not contain a provision that discriminates unfairly between incumbents and other candidates in elections; and(b)provide for the election, by secret ballot, of all officials of a trade union at least once every five years.(3)Notice of the election of officials under this section shall be given to the Registrar in the prescribed form within fourteen days of the completion of the election.(4)Disputes arising from, or connected directly or indirectly to, elections held under this section may be referred to the Industrial Court.’ 14.The Chief Justice, in order to effect section 34(4) of the Labour Relations Act published the Employment And Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions on the 1st September 2025. I find that section 30 of the Labour Relations Act is not relevant to the election dispute. The relevant provision is section 34. I found no merit in the preliminary objection. The same is disallowed. Whether the application was merited and available reliefs 15.I agreed with the 2nd respondent (Registrar of Trade Unions) that the conservatory orders sought had been overtaken by events. The Registrar produced the election results and the election report as received on 18th February 2026 under section 35 of the Labour Relations Act. The Registrar relied on the provisions of section 35(2) of the Act which states-‘(2)Notice of any changes of officials or of the title of any officials shall be submitted to the Registrar in Form Q set out in the Second Schedule, within fourteen days after the change, together with the prescribed fee, and the Registrar shall register the change, subject to subsections (4) and (5).’ The Registrar stated the provision is mandatory and in absence of objection she complied. I agreed the provision is couched in mandatory terms. The court on the 25th February 2026 restrained the publishing of the results. The results having been published on 18th February 2026, on receipt, the court finds that its order had been overtaken by events and is set aside. 16.On the merit of the order sought for scrutiny , the 1st respondent relied on authorities on general elections. I do find the threshold of those general elections is constitutional and guided by the Elections Act. The Elections Act is not applicable to private organizations like unions. The applicable law is the Labour Relations Act and the constitution of the unions. Section 34(1) states-1)The election of officials of a trade union, employers’ organisation or federation shall be conducted in accordance with their registered constitutions.’ Rule 13 provides for scrutiny as follows- ‘ 13. (1) Where the only issue for determination in the petition is the count or tallying of votes received by the candidates, a petitioner may apply to the court for an order to—(a)recount the votes; or(b)examine the tallying.(2)The parties to the proceedings may apply for scrutiny of the votes for purposes of establishing the validity of the votes cast.(3)On an application under sub paragraph (2) above, the court may, if it is satisfied that there is sufficient reason, order for scrutiny or recount of the votes.(4)The scrutiny or recount of votes shall be carried out under the direct supervision of the Registrar and shall be subject to the directions of the Court.(5)The scrutiny or recount of votes shall be confined to the polling stations in which the results are disputed and may include the examination of—(a)a written complaint of a candidate and the representatives of the candidate;(b) the packets of spoilt papers;(c)the marked copy register;(d)the packets of counterfoils of used ballot papers;(e)the packets of counted ballot papers;(f)the packets of rejected ballot papers;(g)the statements showing the number of rejected ballot papers;(h)the minutes relating to the election process; and(i)the election reports’ 17.I find the applicant has complied with the rules vide the instant application. Rule 13 (3 and 4) states-‘(3) On an application under sub paragraph (2) above, the court may, if it is satisfied that there is sufficient reason, order for scrutiny or recount of the votes.(4)The scrutiny or recount of votes shall be carried out under the direct supervision of the Registrar and shall be subject to the directions of the Court.’’ 18.I believe it is in the interest of justice and in the public interest to allow Order No. 4, with modification, to determine the allegations with finality. The court orders a recount and scrutiny of the votes of the 1st Respondent’s Mandera Branch within 21 days of this order under the supervision of the Registrar of the court. A report of the recount and scrutiny be filed in court. The parties to be served with the dates of the scrutiny and recount. Mention on the 30th June, 2026 to confirm compliance and for further directions in the petition. Costs in the cause. 19.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 5th DAY OF JUNE, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoApplicant /Petitioner – Ayieko1st Respondent: Mwenda2nd and 3rd Respondent: Ms. AchiengInterested parties- absent