https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1428

Chumo v Railways Workers Union (Kenya) & 4 others (Employment and Labour Relations Miscellaneous E027 of 2026) [2026] KEELRC 1428 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1428 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Miscellaneous E027 of 2026 HS Wasilwa, J May 28, 2026 Between John Chumo Applicant and Railways Workers Union (Kenya) 1st Respondent Eric Kipkoech 2nd Respondent Judicth Nafula 3rd Respondent Benard Karimi 4th Respondent Registrar Of Trade Unions 5th Respondent Ruling 1.In opposition to the application dated 20th January 2026, the Respondent filed a preliminary objection dated 26th January 2026 on the following grounds:A.Nature of the Dispute: A Trade Union Election Dispute:- the Respondent stated that the dispute disclosed on the face of the pleadings challenges the validity of national trade union elections conducted on 16th January 2026 and, in substance and law, constitutes a trade union election dispute. It was contended that such disputes are expressly governed by Section 34(4) of the Labour Relations Act and the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025. The Respondent maintained that the 2025 Practice Directions establish a special, self-contained, mandatory, and exclusive procedural code for the institution, management, and determination of trade union election disputes and that compliance with the same is jurisdictional.B.Failure to Institute Proceedings by Way of an Election Petition: - the Respondent stated that Paragraph 4(1) of the 2025 Practice Directions requires trade union election disputes to be instituted by way of an Election Petition expressly indicating that it is brought under Section 34(4) of the Labour Relations Act, while Paragraph 4(2) mandates that such proceedings be titled “Election Petition No… of… (year).” The Respondent maintained that these requirements are not matters of form but constitute the statutory gateway through which the Court’s special election jurisdiction is invoked. It was further stated that the Applicant failed to file an Election Petition and instead initiated the proceedings through a Miscellaneous Application and Notice of Motion, a procedural device said to be unknown to and inconsistent with the governing election dispute framework. The Respondent asserted that a dispute required by law to be commenced through an Election Petition cannot be converted into motion practice through drafting ingenuity and that jurisdiction cannot be conferred through procedural improvisation where statute prescribes an exclusive mode of invocation. Consequently, the proceedings were termed incompetent and void ab initio.C.Non-Compliance with the Mandatory Seven-Day Limitation Period: - the Respondent relied on Paragraph 5(3)(a) of the 2025 Practice Directions which provides that an election petition shall be filed within seven days from the date of declaration of the results of a trade union election. The Respondent maintained that the seven-day limitation period is jurisdictional because election disputes are sui generis and time in such disputes is substantive. It was stated that the limitation safeguards finality, certainty, and stability in trade union governance and that failure to comply extinguishes the right of reference and divests the Court of jurisdiction. According to the Respondent, the Applicant neither filed a compliant Election Petition within the statutory framework nor demonstrated compliance with the mandatory limitation period.D.Failure to Deposit Mandatory Security for Costs: - the Respondent referred to Paragraph 8(1) of the 2025 Practice Directions which requires a petitioner, at the time of filing a petition, to deposit security for the prompt payment of costs, and Paragraph 8(2)(a) which prescribes a deposit of Kshs. 50,000 where the election of a national trade union official is challenged. The Respondent maintained that the deposit of security is mandatory, must be made contemporaneously with filing, and constitutes a condition precedent to jurisdiction which is not curable retrospectively. It was stated that there was no evidence that the Applicant deposited the prescribed security at the time of filing and, in the absence of such deposit, jurisdiction did not crystallize. Consequently, the proceedings were described as void ab initio.E.Improper Constitutionalization of a Statutory Election Dispute: - the Respondent stated that the Applicant invoked Articles 41, 47, and 50 of the Constitution in an attempt to elevate what was plainly a statutory election dispute into a constitutional grievance. Reliance was placed on Paragraph 3(2) of the 2025 Practice Directions which provides that trade union election disputes, even where framed as enforcement of Article 41 rights, must still be instituted within the election petition framework. The Respondent maintained that the constitutional dimension is integrated within the statutory code and does not displace the mandatory procedural framework. It was further stated that the gravamen of the Application concerns the validity of elections and therefore falls squarely within Section 34(4) of the Labour Relations Act and the 2025 Practice Directions. According to the Respondent, the Constitution cannot sanitize non-compliance with statute nor be used as a procedural escape route from jurisdictional preconditions enacted by Parliament and operationalized through binding Practice Directions.F.Failure to Exhaust Statutory and Internal Mechanisms: - the Respondent stated that Section 35(6) of the Labour Relations Act provides a statutory mechanism for challenging the registration of change of officials before the Registrar of Trade Unions and that the Applicant failed to invoke that mechanism. It was further stated that the Union Constitution establishes internal governance structures and dispute resolution channels which had not been exhausted. Consequently, the Application was described as premature and in violation of the doctrine of exhaustion.G.Abuse of the Court Process: - the Respondent stated that the elections had already been conducted, the results declared, and the Registrar had effected registration under Sections 34 and 35 of the Labour Relations Act, after which leadership had already been handed over. It was contended that the Applicant was now seeking to deploy interlocutory motion practice to suspend and unsettle a completed and regularized electoral process. The Respondent further maintained that the 2025 Practice Directions do not contemplate suspension of electoral outcomes through collateral miscellaneous proceedings and that the relief sought is unavailable within the procedural vehicle chosen. The defect was described as foundational, going to the root of jurisdiction, and neither technical nor curable by amendment. 2.The Respondents thus pray that:a.The entire Miscellaneous Application be struck out in limine for want of jurisdiction and procedural competence.b.The Notice of Motion dated 20th January 2026 be dismissed.c.Costs be awarded to the Respondents. Applicant’s Case 3.In opposition to the preliminary objection, the Applicant filed his response dated 15th February 2026. 4.The Applicant avers that the Preliminary Objection does not raise a pure point of law within the meaning of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors [1969] EA 696 because the facts upon which it is founded are disputed and require evidence. The Applicant further avers that jurisdictional objections founded on the form of proceedings and alleged “Practice Directions” cannot be determined in limine without reference to the factual and legal matrix giving rise to the dispute. 5.It is the Applicant’s case that Section 12(1)(a), (b), and (e) of the Act grants the Court original and exclusive jurisdiction over disputes relating to employment, labour relations, trade union matters, and interpretation of the Constitution as it relates to labour rights. The jurisdiction extends to trade union election disputes brought under Article 41 of the Constitution, Sections 34 and 35 of the Labour Relations Act, and the Union Constitution. 6.The Applicant further maintains that neither the cited 2025 Practice Directions nor any subsequent procedural rule can oust or diminish substantive jurisdiction conferred by statute and the Constitution. According to the Applicant, the claim challenges unconstitutional acts and violations of a registered Union Constitution contrary to Article 41(2)(c) on the right to participate in union activities and Article 47 on fair administrative action. 7.The Applicant asserts that the Practice Directions are merely subsidiary procedural guidelines and not legislation and therefore cannot override Sections 12, 34, or 35 of the Labour Relations Act or the Employment and Labour Relations Court (Procedure) Rules, 2016. The Applicant further states that the Practice Directions do not create substantive rights or bar the Court from entertaining disputes brought under constitutional and statutory provisions. 8.The Applicant also maintains that even if operative, the Directions preserve the Court’s discretion to admit properly grounded proceedings filed in good faith under constitutional or statutory provisions. Consequently, the assertion that the Court lacks jurisdiction is erroneous and contrary to Article 159(2)(d) of the Constitution requiring justice to be administered without undue regard to procedural technicalities. 9.The Applicant states that the proceedings were commenced through a Miscellaneous Application accompanied by a Certificate of Urgency, Motion, and Supporting Affidavit in accordance with Rule 17 of the ELRC (Procedure) Rules, 2016 which permits applications to be made by way of Notice of Motion or Memorandum in appropriate circumstances. 10.The Applicant further avers that the dispute concerns a challenge to a purported election conducted contrary to the Union Constitution and is therefore not merely a post-election dispute relating to tallying or registration but a constitutional and regulatory challenge. 11.According to the Applicant, where an election is not convened under the valid authority of the Secretary General as required by Rule 5(c) of the Union Constitution, no valid election exists and the matter cannot be subsumed under an ordinary trade union election dispute. The Applicant therefore maintains that the proceedings are properly before the Court. 12.The Applicant contends that reliance on the alleged seven-day limitation period under Paragraph 5(3)(a) of the 2025 Practice Directions is erroneous because the impugned election was not a valid or recognized election capable of triggering limitation. The Applicant states that time cannot run to perfect an illegality or void act. 13.The Applicant further maintains that Article 159(2)(d) of the Constitution and Section 12(3) of the ELRC Act empower the Court to extend time where justice demands, particularly in constitutional or public interest litigation involving internal governance of trade unions. 14.The Applicant states that Paragraph 8 of the Practice Directions cannot override Article 48 on access to justice or Article 50(1) on the right to fair hearing. Moreover, the Application was filed under Order 51 of the Civil Procedure Rules through Rule 16 of the ELRC Procedure Rules and not as an election petition invoking the provisions relating to security for costs. Consequently, the Applicant maintains that the objection misconceives the nature of the proceedings. 15.The Applicant maintains that Section 35(6) of the Labour Relations Act has been misconstrued because the Applicant is not challenging the Registrar’s act of registration but rather the illegality preceding registration, namely the unconstitutional convening and conduct of elections contrary to the Union Constitution. 16.The Applicant further states that Section 35(6) provides for administrative review of registration decisions and not constitutional violations arising in the conduct of elections. According to the Applicant, internal mechanisms are unavailable or compromised because the persons purportedly elected are the same individuals controlling the internal dispute resolution forums. 17.The Applicant avers that under Articles 159(2)(a) (d) of the Constitution and Section 20(1) of the ELRC Act , this Court is required to avoid undue technical obstacles and determine labour disputes expeditiously, fairly, and substantively. 18.The Applicant contends that the Preliminary Objection seeks to elevate form over substance, an approach consistently rejected by the Court in disputes touching on freedom of association and democracy within trade unions. 19.Consequently, the Applicant urges the Court to find the Preliminary Objection incompetent, misconceived, and lacking merit, dismiss it with costs, and direct that the main Application proceed for hearing on its merits. Respondents’ Submissions 20.The Respondents submitted at the outset that the Preliminary Objection raises pure points of law going to the root of the proceedings and capable of disposing of the matter in limine. Reliance was placed on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd* (1969) EA 696 where the Court held that:“objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.” 21.It was submitted that the objection challenges both the jurisdiction of the Court and the competence of the proceedings as instituted and therefore properly falls within the ambit of a preliminary objection. 22.The Respondents further submitted that the substratum of the Applicant’s claim, as disclosed on the face of the pleadings, is a challenge to the validity of national trade union elections conducted on 16th January 2026 and therefore constitutes a specialized trade union election dispute governed by Section 34(4) of the Labour Relations Act and the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025. 23.It is the Respondents’ submission that the said framework establishes a special, self-contained, mandatory, and exclusive procedural regime, compliance with which is jurisdictional and not discretionary. Reliance was placed on Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR. 24.It was further submitted that the Applicant failed to invoke the Court’s jurisdiction in the manner prescribed by law. Paragraph 4(1) of the 2025 Practice Directions requires trade union election disputes to be instituted by way of an Election Petition while Paragraph 4(2) prescribes the form and title of such petitions. The Applicant, however, approached the Court through a Miscellaneous Application and Notice of Motion, a mode of commencement said to be unknown to the governing legal framework. 25.It was submitted that the Applicant’s approach was fatally defective and rendered the proceedings void ab initio.The Respondents placed reliance on Speaker of the National Assembly v James Njenga Karume [1992] eKLR and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR. 26.On limitation, the Respondents submitted that the Applicant failed to comply with the mandatory timeline prescribed under Paragraph 5(3)(a) of the 2025 Practice Directions requiring election petitions to be filed within seven days of the declaration of election results. 27.It was submitted that election disputes are sui generis and strictly time-bound. They cited the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR and submitted that timelines in election disputes are neither technical nor procedural but substantive and jurisdictional. The Respondents contended that failure to comply with the prescribed timeline extinguishes the cause of action and divests the Court of jurisdiction. 28.The Respondents further submitted that the Applicant failed to comply with the mandatory requirement for deposit of security for costs under Paragraph 8 of the 2025 Practice Directions. The deposit of security is a condition precedent to invocation of jurisdiction and that courts in election jurisprudence have consistently held that failure to deposit security is fatal and renders proceedings incompetent. According to the Respondents, the defect is substantive and incapable of cure. 29.On the Applicant’s invocation of constitutional provisions, the Respondents submitted that the Applicant improperly sought to constitutionalize the dispute by invoking Articles 41, 47, and 50 of the Constitution. Reliance was placed on Speaker of the National Assembly v James Njenga Karume [1992] eKLR and subsequent jurisprudence for the proposition that constitutional provisions cannot be invoked to circumvent clear statutory procedures. 30.It was submitted that where a dispute is governed by a specific statutory framework, parties are bound to adhere to that framework and that the constitutional dimension of trade union election disputes is already subsumed within the statutory regime. 31.Relying on the Court of Appeal decision in Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, the Respondents submitted that the Application offends the doctrine of exhaustion. They argued that where alternative dispute resolution mechanisms exist, they ought to be exhausted before a party approaches the Court. 32.It was submitted that Section 35(6) of the Labour Relations Act provides a statutory mechanism for challenging registration of union officials which the Applicant failed to invoke. Further, the = internal dispute resolution mechanisms established under the Union Constitution had not been exhausted, rendering the Application premature and improperly before the Court. 33.It is therefore the Respondents’ submission that the Court lacks jurisdiction to entertain the matter as presently constituted. They cited Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where the Court held that jurisdiction is everything and without it, a court must down its tools. According to the Respondents, the Applicant’s failure to comply with mandatory statutory requirements divested the Court of jurisdiction. 34.The Respondents therefore submitted that the Application constitutes an abuse of the Court process. It was submitted that the elections had already been conducted, results declared, and the Registrar of Trade Unions had effected registration of the elected officials with leadership having already been handed over. The Applicant was therefore accused of seeking to unsettle a completed electoral process through an improper procedural vehicle. The Respondents contended that such conduct amounts to a collateral attack on a concluded process and is an abuse of the Court process which ought not to be countenanced. 35.They submitted that the defects in the Applicant’s case are fundamental, jurisdictional, and incurable, going to the root of the proceedings and incapable of being remedied by amendment or judicial discretion. Consequently, the Respondents prayed that the Preliminary Objection be upheld, the entire Miscellaneous Application be struck out in limine for want of jurisdiction and procedural competence, the Notice of Motion dated 20th January 2026 be dismissed, and costs be awarded to the Respondents. Applicant’s Submissions 36.The Applicant submitted that the Preliminary Objection is fundamentally misconceived and amounts to an abuse of the Court process as it does not raise a pure point of law but is predicated on disputed facts requiring interrogation by the Court. 37.It was submitted that the Respondents have mischaracterized the nature of the claim. According to the Applicant, the dispute is not a “trade union election dispute” contemplated under Section 34(4) of the Labour Relations Act or the 2025 Practice Directions because the Applicant does not challenge tallying of votes or declaration of results of a valid election, but rather challenges the legal validity and constitutional foundation of the entire electoral process. 38.He submitted that the purported election of 16th January 2026 was void ab initio for want of lawful convening authority, absence of requisite branch elections, and non-compliance with the Union Constitution and therefore a void process could not give rise to a valid election dispute capable of falling within the specialized election petition regime. 39.On the principles governing preliminary objections, the Applicant relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] eKLR where the Supreme Court reiterated that a preliminary objection must be capable of disposing of the matter without the Court having to look at evidence. 40.It was submitted that the objection before Court required determination of contested issues including whether the election of 16th January 2026 was convened by lawful authority under Rules 5(c) and 7(d) of the Union Constitution; whether Branch General Elections preceded the National Elections as required under Rule 5(a); whether a valid Special Congress existed under Rule 7(a) and (d); and whether the process was a nullity ab initio or merely irregular. According to the Applicant, these factual issues cannot be resolved on pleadings alone and therefore the Preliminary Objection ought to be dismissed. 41.He submitted that the Respondents fundamentally mischaracterized the nature of the dispute by treating it as a trade union election dispute governed exclusively by Section 34(4) of the Labour Relations Act and the 2025 Practice Directions. 42.The Applicant submitted that Section 34(4) of the Labour Relations Act provides that: “A dispute arising from the election of officials of a trade union…may be referred to the Industrial Court for determination.” He emphasized that the phrase “arising from the election” presupposes existence of a valid election conducted in accordance with the Union Constitution and the law and does not contemplate a situation where the entire electoral process is itself a constitutional nullity. 43.Relying on Francis Atwoli & 5 others v Kazungu Kambi & 3 others [2016] eKLR where the Court of Appeal held that:“Where union elections are conducted ultra vires the union constitution, the process is null and void and the Court has jurisdiction to intervene to protect the rights of members and the integrity of the union. Such a challenge is not a post-election dispute over tallies, but a pre-election challenge to the constitutional validity of the process itself.” It was submitted that the Applicant was the duly elected and registered Secretary General and the only person authorized under Rules 5(c) and 7(d) of the Union Constitution to convene a legitimate Delegates Congress. 44.The Applicant further submitted that no Branch General Elections had been conducted by 16th January 2026 and therefore no lawful delegates existed under Rule 5(a). Therefore, the purported Special Congress was not requisitioned by two-thirds of members and no mandatory deposit of Kshs. 409,000 had been made under Rule 7(d)(ii). According to the Applicant, if those allegations are assumed to be true, as required in a preliminary objection, then there was no valid election capable of giving rise to a dispute under Section 34(4). 45.The Applicant further submitted that under Section 12(1)(a), (b), and (e) of the Employment and Labour Relations Court Act, this Court has original jurisdiction over labour relations, trade union disputes, and interpretation of constitutional rights relating to labour relations. 46.Relying on Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, he submitted that jurisdiction flows from the Constitution and statute. Therefore, the Court cannot abdicate its constitutional jurisdiction by mischaracterizing a dispute. 47.It was submitted that Article 41(2)(c) of the Constitution guarantees every worker the right to participate in trade union activities and that, as the duly elected Secretary General, the Applicant has a constitutional right to ensure union elections are conducted in accordance with the Union Constitution. 48.On the applicability of the 2025 Practice Directions, the Applicant submitted that subsidiary legislation cannot oust or diminish substantive jurisdiction conferred by the Constitution and statute. Paragraph 3(2) of the 2025 Practice Directions states that trade union election disputes are essentially for enforcement of the right to fair labour relations under Article 41 and may be instituted under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules. He argued that this provision expressly recognizes that such disputes may be brought as constitutional enforcement proceedings under the Mutunga Rules and cited United States International University (Usiu) V Attorney General [2012] eKLR. 49.It was submitted that the Applicant had raised genuine constitutional violations under Articles 41(2)(c), 47, and 50(1) of the Constitution concerning participation in trade union affairs, fair administrative action, and fair hearing respectively. 50.On the doctrine of exhaustion, the Applicant submitted that Section 35(6) of the Labour Relations Act provides only for administrative review of the Registrar’s decision to register union officials and not constitutional challenges to the conduct of elections before registration. 51.The Applicant further submitted that internal union mechanisms were unavailable or compromised because the persons purportedly elected were the same persons controlling the internal forums. Reliance was placed on Kenya Airways Pilots Association v Kenya Airways Limited [2015] eKLR where the Court held that the doctrine of exhaustion does not apply where internal remedies are inadequate or where constitutional questions are raised. 52.On limitation, the Applicant submitted that the seven-day and twenty-one-day limitation arguments were premised on the erroneous assumption that a valid election had occurred. Reliance was placed on Raila Odinga v IEBC & Others [2013] eKLR. Therefore, he argued that since the election of 16th January 2026 was allegedly void ab initio, there was no valid declaration capable of triggering the limitation period. 53.On security for costs, the Applicant submitted that Paragraph 8 of the 2025 Practice Directions is permissive and constitutes a case management direction rather than a jurisdictional precondition. The proceedings had been instituted through a Miscellaneous Application under Rule 17 of the ELRC (Procedure) Rules, 2016 and not through an election petition under the 2025 Directions, therefore, the security requirement was not triggered. 54.The Applicant submitted that Article 159(2)(d) of the Constitution obligates the Court to administer justice without undue regard to procedural technicalities as held in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR. 55.It is the Applicant’s submission that the Preliminary Objection was a hyper-technical attempt to defeat a substantive constitutional challenge by focusing on procedural labels and timelines for a process which the Applicant maintains never lawfully existed. 56.The Applicant thus submitted that the Preliminary Objection was misguided, failed to raise pure points of law, mischaracterized the dispute, and improperly elevated technicalities over substantive justice. The Applicant urged the Court to find that it has jurisdiction to determine whether the purported election of 16th January 2026 was a nullity ab initio and that such determination can only be made upon full hearing, evidence, and cross-examination. 57.I have examined the averments and submissions of the parties. The applicant contends that the application has been filed erroneously as a miscellaneous application yet it is a trade union election petition and thus wants the application dismissed. 58.I have looked at the pleadings of the main miscellaneous application filed herein where the applicants challenge elections of the RWU conducted on 16/1/2025. That being the position, it is indeed true that the applicants ought to file an election petition under the rules of this court and the challenge under a miscellaneous application is flawed. I do agree with the applicants and proceed to strike out the miscellaneous application filed. There shall be no order of costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF MAY, 2026.HELLEN WASILWAJUDGE