Kamau v Kenya Chemical Workers Union & 2 others (Constitutional Petition E002 of 2026) [2026] KEELRC 2089 (KLR) (17 July 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MACHAKOS CONSTITUTIONAL PETITION NO. E002 OF 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 THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS -AND- IN THE MATTER OF THE KENYA CHEMICAL WORKERS UNION REGISTRED ON 4TH AUGUST 2021 BY THE REGISTRAR OF TRADE UNIONS -AND- IN THE MATTER OF THE DISCRIMINATORY, UNLAWFUL AND UNFAIR TREATMENT OF THE PETITIONER -BETWEEN- ESTHER NJERI KAMAU……………………………………………..…..…………………………………...PETITIONER -VERSUS- KENYA CHEMICAL WORKERS UNION..…………………...……………………………..…1ST RESPONDENT KENYA CHEMICAL WORKERS UNION, ATHI RIVER BRANCH…………………….………………………….…………………………….. 2ND RESPONDENT -AND- THE REGISTRAR OF TRADE UNIONS..………………………………………………….INTERESTED PARTY CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Petitioner, on being disqualified by the respondent to view for a seat as Chairman of the Athi River Branch of the Kenya Chemical Workers Union branch elections scheduled for 17th January 2026, commenced this suit vide an Amended Petition dated 20th January 2026 seeking the following orders:- 2. A declaration that the rejection of the Petitioner's nomination scheduled to vie for the position of Chairperson of the 1st Respondent’s Athi River Branch in the elections for 17th January 2026 is unconstitutional, contra statute, null, and void. (b) An order of certiorari quashing the 1st Respondent's decision in the letter of 12th January 2026, rejecting the Petitioner's nomination to vie for the position of Chairperson of the 1st Respondent's Athi River Branch in the elections scheduled for 17th January 2026. (c) A permanent injunction halting the elections or nullifying any results if held, until the discrimination is remedied and the Petitioner's rights are upheld. (d) Costs of this Petition be borne by the Respondents. (e) Any other relief that this Honorable Court deems just and expedient in the circumstances. 1. The Petition was supported by the Affidavit of the Petitioner, sworn on 20th January 2026, and annexures thereto. 2. In response to the said Petition, the Respondents filed a Notice of Preliminary Objection dated 7th May 2026; and a Replying Affidavit sworn by one Peter Onyango Ouko on 4th June 2026. Hearing and evidence 1. The petition and the Notice of Preliminary Objection dated 7th May 2026 were canvassed together by way of written submissions highlighted by counsel for the parties before the court on 8th June 2026. The petitioner was represented by Mr. Rakoro Advocate and the respondents by Mr. Nyabena Advocate. The Petitioner’s case in summary 1. The Petitioner averred that she was the National Vice Chairman and also the Chairperson of the 1st Respondent’s Athi River branch, since the elections in 2021, and that she has exhibited competence in all tasks assigned. The Petitioner states that she was employed by Portland Cement Company Limited up to November 2024, when she was declared redundant. Prior to the redundancy, the Petitioner confirms that she was a paid up member of the union in that she paid union dues by check-off, and after the redundancy, she paid cash from December 2024 to January 2026. Her monthly payment after the redundancy was Kshs. 300/-, as advised by the Union. 2. The Petitioner’s case is that the Registrar of Trade Unions issued a Notice for union elections on 25th September 2025, with elections for branches being held up to 31st March 2025 and National elections up to 31st June 2025, (the sequence of events did not make sense) The Branch elections for the 2nd Respondent were scheduled for 17th January 2026 at St. Jude’s Catholic Church, Athi River. The Petitioner states that she was eligible for re-election and she made an application dated 3rd January 2026 pursuant to Rule 21 (L) of the Union Constitution. The Rule provides that "Applications from paid up members who want to be elected shall be submitted or handed personally to the Branch Secretary and such applications shall be discussed at Branch Executive Committee meeting specifically forwarded to discussion the applications 2 weeks prior to the date of members General Meeting and shall be signed by the applicant and supported by at least 2 paid up union members "at such an Executive meeting procedural election matters shall be discussed". 3. It is averred that the Branch Executive Committee (BEC) meeting was convened on 3rd January 2026 at the Branch Offices to discuss the applications received and the Claimant’s application to vie for the position of Chairperson of the 2nd Respondent Branch against one Michael Njeru Ngari, a member of the Branch, was approved. Thereafter, the list of all contestants at the branch together with the Branch Election notice were circulated to the Branch members and the area local office -Athi River. 4. The Petitioner complained that on 12th January 2026, she received a letter from the Union’s General Secretary dated the same day nullifying her application for election to the position of Chairperson of the Branch for the reasons that the Union Constitution does not permit a member who has been retrenched to contest for any position. No specific provision in the Union Constitution was cited for this position. Although the Petitioner objected through a letter served on the Union on 13th January 2026, she has not received a substantive response to date. She was however, informed by the Athi River County Labour Officer on 14th January 2026 that the 1st Respondent communicated to the Labour Office that the Petitioner was not eligible to contest since she is not a paid up member of the union; she did not work in the industry where the Union was authorized to operate; and because the Branch Executive Committee that cleared her on 3rd January 2026 did not have quorum as some of the officials had resigned. 5. The Petitioner challenges the assertion that some Branch officials had resigned and states that she is not aware of such resignation as Chairperson of the Branch. She supports this view by stating that in any event the letters of resignation of branch officials must be addressed to the Branch Secretary and discussed at the Branch Executive Committee so that the exiting branch officials are replaced. In the present case, the Branch Secretary denies receiving any resignation letter from any branch official and states that he also did not receive any communication regarding such resignations or the Petitioner’s ineligibility from the head office. Further, the Minutes of the Branch Executive Committee meeting held on 3rd January 2026 indicate that the quorum of 51% of members per Rule 21(K) of the Constitution was achieved since there were 8 officials in attendance. 6. The Petitioner avers that the conduct of the Respondents is in contravention of the Petitioner’s Constitutional rights under Article 27 which prohibits discrimination on the basis of age, sex, or social origin; 36 which ensures that every person has the right to form, join or participate in union activities without unfair restrictions; 41 (2) (c) which provides that every worker has the right to participate in union activities including elections; 47 which provides for fair administrative action; 50 which provides that every person has a right to fair hearing; and 10 on the national principles and values, including transparency, accountability and inclusivity. The Respondents’ case in brief 1. The Respondents opposed the amended petition on the premise that it had been overtaken by events the elections having been held on 17th January 2026 and subsequently the winners registered by the Registrar of Trade Unions. It is the Respondent’s case that the remedy that was available to the petitioner is an appeal against the decision of the Registrar of Trade Unions pursuant to Sections 30 and 34 (4) of the Labour Relations Act 2007, but no such appeal has been filed. As such, they aver that the amended petition contravenes the Employment and Labour Relations Court (Trade Union Election Disputes) procedure and practice direction of the Trade Unions Elections Rules 2025. 2. In addition to the foregoing, it is averred by the Respondents that Petitioner has not pleaded with any particularity which of her fundamental rights have been infringed and how the Respondents have infringed on them. Notably, she has not produced any proof of breach of her Constitutional rights. 3. It is argued that the Petitioner was not eligible to hold or contest for the position of the Branch Chairman of the Union for the reason that she was retrenched and therefore ceased working in the Industry in which the trade union operates. The Respondents take the position that the Petitioner does not qualify to be a member of the subject union, let alone an officer of the trade union. DETERMINATION 1. Following directions by the court that parties should file written submissions, both parties complied. Issues for determination 1. In her submissions dated 3rd June 2026, the Petitioner submitted generally on the Petition. She later filed supplementary submissions dated 11th June 2026, also submitting generally on the petition and the proceedings before the court. 2. The Respondents similarly filed submissions dated 11th June 2026, where they submitted generally on the petition and preliminary objection. 3. The court discerned the issues for determination in the petition to be as follows- 4. Whether the Notice of preliminary objection by the respondents had merit 5. Whether the disqualification of the petitioner by the respondents from vying for the position of Chairperson Athi River branch was justified and lawful. 6. Whether the petitioner is entitled to remedies sought Whether the Notice of preliminary objection by the respondents had merit 1. The respondent filed a replying affidavit sworn on 4th June, 2026 in response to the petition together with a Notice of Preliminary Objection dated 7th May, 2025 and raised 3 grounds- * + 1. That the Petition has been overtaken by events as the elections having been held on 17th January, 2026 and subsequently registered by the Registrar of Trade Unions. That the remedy available to the petitioner is an appeal against the decision of the Registrar of Trade Unions pursuant to provisions of Section 30 of the Labour Relations Act, 2007. That the Petition is contrary to the provisions of the Employment and Labour Relations Court (Trade Union Election Disputes) procedure and practice directions of the Trade Unions Election rules 2025. 2. The respondents submitted that that this petition has been overtaken by events considering that the elections the petitioner sought to stop were successfully held on 17th January, 2026 and the results arising therefrom were registered by the Registrar of Trade Unions. There is no dispute on the foregoing facts. The Petitioner's prayers cannot be granted to stop the holding of elections on 17th January, 2026. The date of elections is now past and therefrom any order seeking to stop the same. It is a well known principle of law that courts of law do not act in vain. The elections having been successfully held on 17th January, 2026 and the resultant elections or change of officers duly registered with the Registrar of Trade Unions, there is nothing to restrain by way of permanent injunction. The remedy which was available to the Petitioner after the registration of the new officers was by way of preferring an appeal to this Honourable Court pursuant to the provisions of Section 30 of the Labour Relations Act, 2007. The said Section provides that: - "Any 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". The Registrar has made her decision pursuant to the provisions of Section 34 of the Labour Relations Act, 2007. If the Petitioner was interested in challenging the elections of the Athi River Branch of the 1st Respondent, she should have complied with the provisions of the newly promulgated rules by the Honourable Chief Justice governing such elections. The newly gazette Employment and Labour Relations Court (Trade Union Elections Disputes) Procedure and Practice rules provide an elaborate procedure on filing of Petitions. The Petition herein evidently was not brought under the above provisions and is therefore incurably defective. 3. Conversely, the petitioner submitted that There is no proof or evidence that an election took place on 17/1/2026. As at to date the 10/6/2026 there are no declarations of any elections results as alleged by the 1st and 2nd Respondents. 5. Indeed the Respondents have not availed or exhibited any form Q, election results and or any extract of officials of the branch following the elections scheduled for 17/1/2026, as demanded by Section 35 of the Labour Relations Act (RLA) 2007. 6. The Registrar of trade unions, the Interested Party herein, has not yet appeared and or responded to the Petition despite service. Indeed there is nothing from the Registrar of Trade Unions indicating that an election took place on 17/1/2026, a form Q was generated and filed with her, election report containing the election results were filed with her by the returning officer and that the said results and or officials were registered as officials of a Trade Union, pursuant to Section 35 of the RLA. 7. Section 30 of the RLA is therefore not applicable as there is no decision of the Registrar of Trade Unions to appeal against. 8. The amendment and prayers touching on the elections scheduled for 17/1/2026, done on 20/1/2026, were out of abundance of caution as the petition was filed on 15/1/2026 before the elections scheduled for 17/1/2026 were to be were conducted, but the court issued orders after the date of the scheduled elections. 1 9. The Petition is concerned not with the conduct and declaration of the results of the elections scheduled for 17/1/2026, but with the nullification of the Petitioner's applications to vie for the position of branch chairperson dated 3/1/2026. The Petition is concerned with the infringement and unlawful actions of the Respondents and the interested Party, before the election and not during or after the elections. 10. The Respondents have admitted to the said nullification of the Petitioners applieation. 11. The petitioner did not participate in the scheduled elections of 17/1/2026. 12. The ELRC (Trade Union Election Disputes) Procedure and Practice directions of the Trade Union elections Rules 2025 are therefore not applicable in this Petition. 13. The said Preliminary Objection does not lie and should be dismissed with costs. 2. The petition was filed on the 15th January 2026. The petition was brought under various provisions of the Constitution of the Republic of Kenya alleging contravention of fundamental rights and freedoms of the petitioner. The elections were scheduled to be held on the 17th January 2026. As at the time of filing the petition the elections had not been held. The court then finds that the petitioner was within her right to bring the petition alleging discrimination, unlawful and unfair treatment. This is a case where the petitioner could also have invoked the trade union rules and challenged the elections nomination purpose. The constitutional rights could only be agitated under a constitutional petition. Section 30 of Labour Relations Act could not be invoked as the interested party had not made a decision. I find the petition was properly before the court. The Court finds that the question of the prayers in the petition being overtaken by events is not a proper issue for determination under the Notice of Preliminary Objection. The court found even the question of whether the elections were held was not in issue as at time of filing the petition. The issues raised were not pure points of law. The objection, for raising issues of unascertained facts, is not proper as held in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors [1969] EA 696:-‘ A preliminary objection consists of a 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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … [A] preliminary objection is in the nature of what used to be a demurrer. 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 is the exercise of judicial discretion’ . . .” Whether the disqualification of the petitioner by the respondent from vying for the position of Chairperson, Athi River branch, was justified and lawful. The petitioner’s submissions 1. The cause of action was the disqualification of the petitioner by the respondents from vying for the position of chairperson, Athi River branch, during elections scheduled for 17th January 2026. The petitioner submitted that she was the National Vice Chairman and also the Chairperson Athi River branch, of the 1st Respondent, having industriously served in the said positions from the date of elections, in 2021, exhibiting competence in all tasks assigned. The Petitioner was employed by Portland Cement Company Limited up to November 2024, when she was declared redundant and Since she used to pay union dues by check-off, after redundancy, she started to pay cash from December 2024 - January 2026, Kshs. 300/= per month as advised by the Union. The Registrar of Trade Unions issued a Notice for union elections on 25/9/2025- branches up to 31/3/2025 and National up to 31/6/2025 and thus the Branch elections are scheduled for 17/1/2026, at St. Judes Catholic Church- Athi River. The Petitioner was eligible for re-election. Rule 21 (L) of the Union Constitution states that" Application from paid up members who want to be elected shall be submitted or handed personally, to the Branch Secretary and such applications shall be discussed at Branch Executive Committee meeting specifically forwarded to discussion the applications 2 weeks prior to the date of members General Meeting and shall be signed by the applicant and supported by at least 2 paid up union members “at such an Executive meeting procedural election maters shall be discussed" In compliance with the said provision, the Petitioner made an Application dated 3/1/2026 for the position of Branch Chairperson and the Branch Executive Committee (BEC) meeting was convened on 3/1/2026 at the Branch Offices to discuss the said application amongst others and was approved and she was cleared to vie or contend for the position of Chairperson against Mr. Michael Njeru Ngari, a member of the Branch. Thereafter the list of all contestants at the branch together with the Branch Election notice were circulated to the Branch members and the area local office -Athi River. On Monday 12/1/2026, the Petitioner received a letter from the Union General Secretary dated 12/1/2026 nullifying her application for the position of Chairperson of the Branch. The letter dated 12/1/2026 and addressed to the Petitioner stated as follows: RE: NULLIFICATION OF YOUR APPLICATION FOR THE POSITION OF BRANCH CHAIRPERSON FOR ATHI RIVER BRANCH The above subject matter and your application dated 31t December 2025 refer. We write to confirm receipt of your application for the position of Athi River Branch Chairperson. However, we regret to inform you that your application has been disqualified. This is in accordance with our Constitution, which does not permit a member who has been retrenched to contest for any position. Records indicate that you were retrenched by your employer, East Africa Portland Cement Co. Limited, on 15th October 2024, and therefore ceased to be an employee of the company. Further, the Registrar of trade union, through its circular dated 25th September 2025, directed all trade unions to strictly adhere to their registered constitutions. In line with this directive, and as you no longer work in the chemical industries, you are not eligible to participate in the elections. Consequently, your application to contest for the position of Athi River Branch Chairperson has been disqualified, and your name will not be listed among the candidates for the Branch elections scheduled for 17th January 2026. We nonetheless appreciate your interest in the affairs of the union and thank you for the service and dedication you had shown to the members of Athi River Branch. Thank you for your attention...." There was no Rule of the said Constitution citied to this effect as having been breached. The Petitioner caused a letter to be served upon the Union through her advocates on 13/1/2026 giving 24 hours to respond and the Union only said that she directs future correspondence to their advocates. There has not been a substantive response. The Petitioner then went to the Labour office on 14/1/2025 and the Athi River County Labour Officer, who told her that she received communication from the 1st Respondent to the effect that she is not eligible to contest since she is not a paid up member of the union and was not in the industry and that the Branch Executive Committee that cleared her on 3/1/2026 did not have quorum since some of the officials had resigned. As Chairperson of the Branch the Petitioner was not aware of any branch officials who had resigned and in any event such a resignation must be addressed to the Branch Secretary and discussed at the BEC for replacement and the Branch Secretary Mr. Josephat Okello has informed the Applicant that he did not receive any resignation letter from any branch official and that the head office did not communicate to him or the branch about the alleged resignations and or the petitioners ineligibility. In any event as per the minutes of the BEC, the quorum of 51% of members' attendances as per Rule 21(K) of the constitution was achieved as there were 8 officials. 2026 (See page 43-472 of the Petition) The General Secretary of the 1st Respondent and or the 1st Respondent had not role in the application or nomination process of candidates for the election of the 2nd Respondent. Despite being served with the demand letter dated 13/1/2026 (See page 5--52 of the Petition) the 1st, 2nd and 3rd Respondents did not respond or act to cure the violations. 2. The law: -Article 2(1) of the Constitution of Kenya, 2010 (the Constitution) asserts the supremacy of the Constitution and states that it binds all individuals and all state organs at both levels of government. Article 2 (4) of the Constitution stipulates that any act or omission contrary to the Constitution is invalid. Article 3 obliges every person to respect, uphold, and defend the Constitution. Article 10 sets out the national values and principles of governance that guide state officers, organs, public officers, and all persons when applying or interpreting laws, making, or implementing public policies. Among these values are national unity, the rule of law, participation of the people, equity, social justice, inclusiveness, equality, human rights, non-discrimination, good governance, transparency, accountability, and sustainable development. Article 20 applies the Bill of Rights to all laws and binds all state organs and persons, further directing this Court to interpret the Bill of Rights in a manner that promotes the values of an open, democratic society based on human dignity, equality, equity, and freedom, in accordance with its spirit, purport, and objectives. It also requires the Court to adopt interpretations that most favour the enforcement of rights and fundamental freedoms. Article 21 makes it a fundamental duty of the State and all its organs to observe, respect, promote, and realise rights and freedoms enshrined in the Bill of Rights. Section 8) Article 41 (1) guarantees fair labour practices, stating: "Every person has the right to fair labour practices." Article 50 guarantees the right to a fair hearing and presumes innocence until proven guilty, providing that: a. "Every person has the right to have any dispute that can be resolved by law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body." Article 47 ensures every individual the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair, which presupposes that guilt must be established before administrative action is taken. Article 232 demands accountability for administrative acts; sub-article 2 ensures the application of public service values and principles across all state organs at both levels of government. Article 236 provides protections for public officers, stating that: a. "A public officer shall not be victimised or discriminated against for having performed the functions of the office in accordance with this constitution or any other law;" c. "Dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of the law." Article 258 (1) affirms the right of every individual to initiate court proceedings claiming that the Constitution has been violated or is threatened with violation. Article 259 states that the Constitution must be interpreted in a manner that advances its purposes, values, and principles; promotes the rule of law, human rights, and fundamental freedoms under the Bill of Rights; supports legal development; and contributes to good governance. Section 4(2) of the Labour Relations Act on employees’ right to freedom of association provides that every trade union member has the right to: participate in lawful activities, participate in elections of officials, stand for election or appointment, hold office if elected or appointed, and serve as a trade union representative in accordance with the law or collective agreements. Section 31(1) stipulates that officials of trade unions or employers' organisations should be persons engaged or employed in the relevant sector, with restrictions on holding multiple positions and provisions allowing officials to be part of wider federations. Section 34(1) states that the election of officials must follow the registered constitution, which must not contain any unfair discriminatory provisions. The Respondent, being a duly registered trade union under section 19 of the Labour Relations Act and thus a public body, unlawfully barred the Petitioner from contesting in the union branch elections scheduled for 17/1/2026, without justifiable reason, violating the spirit of the Constitution and the rule of law. This conduct was manifestly discriminatory, irresponsible, and detrimental to the proper administration of public institutions and good governance. The Respondents’ submissions 1. Conversely, the respondents submitted as follows:- On the substantive issues raised in the petition, we wish to state that the Petitioner, having ceased being an employee within the industry to which the Trade Union was concerned, was ineligible to contest or hold any position in the trade union. The provisions of Section 31(1) provides that: - "The officials of a trade union or employers' organization shall be persons who are or have been engaged or employed in the sector for which the trade union or employer's organization is registered." The petitioner is no longer employed or engaged in the sector to which the trade union is registered and hence cannot hold office in the trade union. Other than the above provision of the Act, the union's constitution does not allow persons who are not employed or working in the sector to be officers of a trade union. Therefore, the decision to disqualify the petitioner from contesting of the branch elections was therefore justified and plausible. The petitioner has also not demonstrated which of her rights have been violated by reasons of being disqualified to contest for the position of Chairperson of the branch. In constitutional petitions like this one, it is incumbent for the petitioner to show with particularity which of her rights under the constitution have been violated. The petitioner in this matter has not demonstrated and shown which of her constitutional rights have been violated. The petition cannot be granted and is bad in law in that it seeks orders which may affect persons and parties who are not before it. The newly elected officials of the Branch have not been named and cited by the Petitioner as parties herein to enable them respond and take part in this proceedings. The Honourable Court cannot issue orders whose effect will affect the parties not before it. For the foregoing submissions among others, the petition is for striking out or dismissal and we invite the Honourable Court to exercise its discretion and just do that. Decision on issue No.2 1. It was not in dispute that the petitioner submitted an application dated 3rd January 2026 pursuant to the 1st Respondent’s Constitution expressing interest to vie for position of Chairperson Athi River union branch. The Rule provides that "Applications from paid up members who want to be elected shall be submitted or handed personally to the Branch Secretary and such applications shall be discussed at Branch Executive Committee meeting specifically forwarded to discussion the applications 2 weeks prior to the date of members General Meeting and shall be signed by the applicant and supported by at least 2 paid up union members "at such an Executive meeting procedural election matters shall be discussed". 2. The petitioner contended that the Branch Executive Committee (BEC) meeting was convened on 3rd January 2026 at the Branch Offices to discuss the applications received and the petitioner’s application to vie for the position of Chairperson of the 2nd Respondent Branch against one Michael Njeru Ngari, a member of the Branch, was approved. Thereafter, the list of all contestants at the branch together with the Branch Election notice were circulated to the Branch members and the area local office -Athi River. The Petitioner complains that on 12th January 2026, she received a letter from the Union General Secretary dated the same day nullifying her application for election to the position of Chairperson of the Branch for the reasons that the Union Constitution does not permit a member who has been retrenched to contest for any position. No specific provision in the Union Constitution was cited for this position. Although the Petitioner objected through a letter served on the Union on 13th January 2026, she has not received a substantive response to date. She was however, informed by the Athi River County Labour Officer on 14th January 2026 that the 1st Respondent communicated to the Labour Office that the Petitioner was not eligible to contest since she is not a paid up member of the union; she did not work in the industry where the Union was authorized to operate; and because the Branch Executive Committee that cleared her on 3rd January 2026 did not have quorum as some of the officials had resigned. 3. The Court finds that the alleged explanation attributed to the labour officer is inferior in terms of credibility to the written reason by the respondent on the disqualification. The letter of disqualification was annexed in the replying affidavit of Peter Onyango Ouko dated 4th June 2026 and was dated 12th June 2026. The letter was addressed to the petitioner and stated-‘RE: NULLIFICATION OF YOUR APPLICATION FOR THE POSTION OF BRANCH CHAIRPERSON FOR ATHI RIVER BRANCH The above subject matter and your application dated 31st December 2025 refer. We write to confirm receipt of your application for the position of Athi River Branch Chairperson. However, we regret to inform you that your application has been disqualified. This is in accordance with our Constitution, which does not permit a member who has been retrenched to contest for any position. Records indicate that you were retrenched by your employer, East Africa Portland Cement Co. Limited, on 15th October 2024, and therefore ceased to be an employee of the company. Further, the Registrar of trade Union, through its circular dated 25th September 2025, directed all trade unions to strictly adhere to their registered constitutions. In line with this directive, and as you no longer work in the chemical industries, you are not eligible to participate in the elections. Consequently, your application to contest for the position of Athi River Branch Chairperson has been disqualified, and your name will not be listed among the candidates for the Branch elections scheduled for 17th January 2026. We nonetheless appreciate your interest in the affairs of the union and thank you for the service and dedication you had shown to the members of Athi River Branch. Thank you for your attention. Yours faithfully, For and on behalf of KCWU PETER OUKO ONYANGO NATIONAL GENERAL SECRETARY’ 1. The petitioner asserted that the provision of the union constitution was not disclosed. She asserted that she had been paying up dues in cash. The court finds that the only reason given for the disqualification was the petitioner's no longer being employed in the union's sector. The respondent relied on section 31 of the Labour Relations Act to submit that the petitioner was not qualified. The Labour Relations Act is the north star of the trade unions and their constitutions must be consistent with the Act. It is thus safe to determine the issue of the disqualification relying on section 31 of the Act on the election of trade union officials. Section 31 states- ‘31. Officials (1)The officials of a trade union or employers’ organisation shall be persons who are, or have been, engaged or employed in the sector for which the trade union or employers’ organisation is registered. (2)No person shall be an official of more than one trade union or employer’s organisation. (3)An official of a trade union may also be an official of a federation of trade unions to which the trade union is affiliated. (4)Notwithstanding the provisions of subsection (1)— (a)the general secretary of a trade union or the chief executive or association secretary of an employers’ organisation may be a person not engaged or employed in the sector concerned; (b)a person may be an official of more than one employer’s organisation; and (c)the Registrar may, on application by a trade union or employers’ organisation, permit any other office to be filled by a person not engaged or employed in the sector concerned. (5)No person who has been convicted of a criminal offence involving fraud or dishonesty shall be an official of a trade union or employer’s organisation.’ 1. The petitioner submitted that, having been a former employee in the sector of the union , she was qualified under section 31(1), emphasizing the words' shall be persons who are, or have been, engaged or employed in the sector for which the trade union or employers’ organisation is registered.’ The court finds that it was an undisputed fact that the petitioner had been employed in the sector of the respondent union. She was thus qualified to be an official of the union. The decision to disqualify the petitioner on the basis of her employer's retrenchment is held to be unlawful. WHETHER THE PETITIONER IS ENTITLED TO THE REMEDIES SOUGHT 1. The petitioner sought various forms of relief. The court then proceeds to consider the merit. 2. A declaration that the rejection of the Petitioner's nomination scheduled to vie for the position of Chairperson of the 1st Respondent’s Athi River Branch in the elections for 17th January 2026 is unconstitutional, contra statute, null, and void.- The court returns in the positive, having held the decision of disqualification was unlawful. (b) An order of certiorari quashing the 1st Respondent's decision in the letter of 12th January 2026, rejecting the Petitioner's nomination to vie for the position of Chairperson of the 1st Respondent's Athi River Branch in the elections scheduled for 17th January 2026. The court returns in the positive as the decision was unlawful. (c) A permanent injunction halting the elections or nullifying any results if held, until the discrimination is remedied and the Petitioner's rights are upheld. On this order I find that the prayer for halting the election is overtaken by events. I decline to nullify the results as the parties who were elected are not before the court. The court upholds the principle audi alterim partem , no party should be contemned unheard. The petitioner ought to have invoked the provisions of section 34 of the Labour Relations Act to challenge the results within 30 days of holding the elections. 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.’ The petitioner would then have moved the court under the Trade Union Election Rules, 2025. (d) Costs of this Petition be borne by the Respondents.- costs follow the event. I found a violation of the right of the Petitioner to vie for the position of Athi River Branch Chairman, Kenya Chemical Workers Union. 1. In the upshot, the court allowed the petition as follows- 1. The Honourable Court is pleased to issue a declaration that the rejection of the Petitioner's nomination scheduled to vie for the position of Chairperson of the 1st Respondent’s Athi River Branch in the elections for 17th January 2026 is unconstitutional, contra statute, null, and void. 2. The Honourable court is pleased to issue an Order of Certiorari quashing the 1st Respondent's decision in the letter of 12th January 2026, rejecting the Petitioner's nomination to vie for the position of Chairperson of the 1st Respondent's Athi River Branch in the elections scheduled for 17th January 2026. 3. The petitioner is awarded costs of the petition against the 1st respondent. 2. It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 17TH DAY OF JULY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner: Rakoro Respondents-Ms Kimani h/b Nyabena Interested party -No appearance