Kangogo v County Government Workers Union (Kenya) & 3 others (Petition E006 of 2026) [2026] KEELRC 1954 (KLR) (7 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT BUNGOMA** **PETITION NO. E006 OF 2026** **IN THE MATTER OF ARTICLES 2, 3, 10, 20, 21, 22, 23, 27, 32, 38, 41, 47, 81 AND 165(3) OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF SECTIONS 4, 8, 31(4), 34 AND PART VII OF THE LABOUR RELATIONS ACT, 2007** **AND** **IN THE MATTER OF THE DISQUALIFICATION OF THE PETITIONER AS A CANDIDATE FOR THE POSITION OF GENERAL SECRETARY OF THE COUNTY GOVERNMENT WORKERS UNION (KENYA)** **BETWEEN** **VESKA KANGOGO ………………………………… PETITIONER** **AND** **COUNTY GOVERNMENT** **WORKERS UNION (KENYA) ………………… 1ST RESPONDENT** **THE ELECTIONS COMMITTEE** **OF THE COUNTY GOVERNMENT** **WORKER UNION (KENYA) ………...……….. 2ND RESPONDENT** **ROBA DUBA …………………………………… 3RD RESPONDENT** **AND** **REGISTRAR OF TRADE UNIONS………. INTERESTED PARTY** **(BEFORE HON. JUSTICE DAVID NDERITU)** **RULING** 1. **INTRODUCTION** 2. In a petition dated 26th February 2026, filed through Erykah Law Advocates, the Petitioner is seeking for the following reliefs – 3. ***A declaration that the Respondents’ decision to disqualify the Petitioner, as communicated in the letter dated 11th February 2026, is unconstitutional, null, and void for violating Articles 27, 32, 38, 41, and 47 of the Constitution and Section 4, 31(4), and 34 of the Labour Relations Act, 2007.*** 4. ***A declaration that the unilateral rescheduling of elections from 27th February 2026 to 16th February 2026 is illegal, arbitrary, and void.*** 5. ***An order quashing the disqualification decision and directing the Respondents to reinstate the Petitioner as a validity nominated candidate on the ballot for the election scheduled for 27th February 2026 or any rescheduled date compliant with the Registrar’s directives.*** 6. ***A conservatory order staying the Union’s quinquennial elections scheduled for 27th February 2026 pending the hearing and determination of this Petition and the related cause challenging the date change, or in the alternative, an injunction restraining the Respondents from excluding the Petitioner from the ballot.*** 7. ***An order directing the Respondents to provide the Petitioner with copies of all documents relied upon in the disqualification, including the forensic report, affidavits, and any Election Committee resolutions, within 72 hours.*** 8. ***An order directing the 1st and 2nd Respondent to release all the minutes revolving around the process disqualifying and accepting nominations of all the hopeful candidates.*** 9. ***An order of prohibition restraining the Respondents from conducting elections until compliance with the Union Constitution, Election Rules, and Registrar’s directives.*** 10. ***Costs of this Petition be awarded to the Petitioner.*** 11. ***Any other or further relief that this Honourable Court may deem just and expedient in the circumstances.*** 12. Simultaneous with the petition, the Petitioner filed a Notice of Motion (the application) of even date seeking for the following orders – 13. ***Spent.*** 14. ***THAT pending the hearing of this Application inter partes, this Honourable Court be pleased to issue a conservatory order staying the quinquennial elections of the 1st Respondent scheduled for 27th February 2026.*** 15. ***THAT conservatory orders do issue restraining the Interested Party from receiving/accepting/publishing any elections results in the event the Respondent proceed to conduct elections on the scheduled date of 27th February 2026 pending hearing and determination of this Application.*** 16. ***THAT conservatory orders do issue restraining the Interested Party from receiving/accepting/publishing any elections results in the event the Respondent proceed to conduct elections on the scheduled date of 27th February 2026 pending hearing and determination of this Petition.*** 17. ***THAT in the alternative to prayer 2 above, pending hearing and determination of this Application, this Honourable Court be pleased to issue a conservatory order restraining the Respondents from excluding the Petitioner from the ballot for the position of General Secretary.*** 18. ***THAT pending the hearing and determination of the Petition, this Honourable Court be pleased to:*** 19. ***Stay the elections scheduled for 27th February 2026, OR*** 20. ***Direct that the Petitioner be reinstated as a validity nominated candidate and included in the ballot.*** 21. ***THAT pending hearing and determination of the Petition, this Honourable Court be pleased to issue an order compelling the Respondents to furnish the Petitioner with:*** 22. ***The forensic report Ref: DFDEC 07/2026,*** 23. ***The 72 sworn affidavits relied upon,*** 24. ***Minutes and resolutions of the Elections Committee,*** 25. ***All documents relied upon in disqualifying the Petitioner.*** 26. ***That costs of this Application be provided for.*** 27. The application is expressed to be brought under ***Articles 22, 23, 38, 41, & 47 of the Constitution; Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; and all enabling provisions of the law***. 28. In response to the application and the petition, the 1st and 3rd Respondents, through Njuguna Mwaura & Co Advocates, filed a notice of preliminary objection (PO) dated 2nd March 2026 raising the following preliminary points for consideration and determination by the court – 29. *THAT the instant application and petition are sub-judice as the same issue raised in the Petitioner’s application and petition, being the issue of the Petitioner’s qualification and/or disqualification, is currently under consideration and determined by a Court of competent and concurrent jurisdiction in Eldoret ELRCC/E009/2026 in which the Petitioner Applicant herein is a party.* 30. *THAT further, instant application and petition are res judicata as the same issue of the validity and/or legality of the rescheduling or change of the date of the 1st Respondent’s Quinquennial national elections and national delegates conference (NDC) from 27th to 16th February, 2026 has already been conclusively determined by this Honourable Court in Nairobi ELRCPET/E026/2026 vide the ruling delivered on 13th February, 2026.* 31. *THAT therefore, this Honourable Court is barred by the said doctrines of sub-judice and res judicata and from entertaining, hearing, and/or determining the instant application and petition, and hence lacks the requisite jurisdiction over the matter.* 32. *THAT the instant application and petition are barred by the doctrines of mootness and justifiability as the event or action sought to be stayed has already taken place.* 33. *THAT consequently, the instant suit, including the Petitioner’s application and petition, is frivolous, scandalous, vexatious, misconceived, hopeless, a non-starter, and an abuse of the Court process, and is thus a suitable candidate for dismissal and/or striking out with costs to the 1st and 3rd Respondents herein.* 34. Further, the 3rd Respondent filed a replying affidavit sworn by himself on 20th March 2026 with several annexures thereto. 35. On 17th March 2026, the court ordered and directed that the PO be heard and disposed of first as it raised an issue of lack of jurisdiction for this court to hear and determine the petition and the application. Further, it was directed that the PO be canvassed by way of written submissions. 36. The 2nd Respondent appeared through James Oketch & Co Advocates. 37. Mr. Oginga for the 1st and 3rd Respondents filed written submissions dated 1st April 2026 and Mr. Oketch for the 2nd Respondent filed written submissions dated 21st April 2026 in support of the PO. No submissions were received from the Petitioner in response to the PO. 38. This ruling, therefore, is in regard to the PO as raised by the 1st and 3rd Respondents and supported by the 2nd Respondent. 39. **EVIDENCE** 40. Ordinarily, matters for determination in a PO should be self-evident without the need of a court investigating the issues or going through evidence. However, a PO may be raised on a matter of fact that the court can determine without calling evidence based on the pleadings filed. For example, if a party pleads, as in this matter, ***res judicata*** or ***sub-judice***, the court has to examine the facts and ***prima facie*** determine whether the matter is factually and legally ***res judicata*** and or ***sub-judice***. 41. In the supporting affidavit to the application, the Petitioner admits that there is another pending matter before this court being ***Bungoma ELRC No. E026 OF 2026 – Veska Kangogo V County Government Workers Union & Others***, wherein he is challenging the change of date of the elections of the union. 42. The Petitioner’s challenge to the elections in this instant petition is that he was unlawfully disqualified from contesting the position of General Secretary of the Union for no lawful reason(s) and without a hearing. 43. In the replying affidavit by the 3rd Respondent, it is stated that the petition and the application are ***sub-judice*** and ***res judicata*** and that the orders sought are overtaken by events in that the elections were held and the elected officials duly registered by the Interested Party. An extract of the register from the records of the Interested Party is annexed. 44. It is further deposed that the qualification and or disqualification of the Petitioner for the already held and concluded elections is the subject matter in ***Eldoret ELRCC No. E009 of 2026 – Zipporah Gituma & Others V Veska Kangogo & Another***. Copies of the pleadings in that cause are annexed. 45. It is further deposed that the issue of the change of the date of elections from 27th to 16th, February 2026 is the subject matter in ***Nairobi ELRC Petition No. E026 of 2026 – Veska Kangogo V County Government Workers Union of Kenya*** and that the Court (Keli J) determined that issue with finality in a ruling dated and delivered on 13th February 2026. A copy of that ruling is annexed. 46. It is further deposed that the issues raised in this petition are also the subject matter of another matter pending before this same court being ***Bungoma ELRC Petition No. E001 of 2026 – Kennedy Wafula Wekunda & 4 Others V County Government Workers Union & 6 Others***. 47. It is further deposed that the elections challenged in all these causes and petitions were conducted on 28th February 2026 and the elected officials registered by the Interested Party, rendering the petition and the application herein merely academic. 48. It is important to note that the Petitioner did not file an affidavit in reply to the issues raised in the above affidavit filed by the 3rd Respondent. 49. **SUBMISSIONS** 50. Counsel for the 1st and 3rd Respondents submitted on the following three issues – 51. *Whether there is a competent, valid, or proper PO before this Honorable Court.* 52. *Whether the Petitioner’s application and petition dated 26th February, 2026 are sub-judice, thereby ousting the jurisdiction of this Honorable Court; and* 53. *Whether the Petitioners’ application and petition dated 26th February, 2026 are res judicata, thereby ousting the jurisdiction of this Honorable Court.* 54. On the first issue, Counsel submitted that where the factual or legal issues raised in a PO are not contested and the court does not need evidence or an investigation on the same, then, ***prima facie,*** a PO is well grounded. Counsel cited ***Hassan*** ***Ali Joho & Another V Suleiman Shahbal & 2 Others (2014) KESC 34 (KLR)*** alongside other decisions in support of this position. 55. It is further submitted that issues of the petition being ***res judicata*** and ***sub-judice*** are as well matters of law based on ***Sections 6 & 7 of the Civil Procedure Act***. It is submitted that in essence the PO is purely premised on points of law and as raised should dispose of the entire petition without the need of further evidence or proof. 56. On the second issue, it is submitted that clearly and evidently the issues raised in this petition are the subject matters of the other proceedings pending at ELRC in Nairobi, Eldoret, and Bungoma, in the causes and petitions alluded to in the foregoing part of this ruling. It is submitted that the issue of disqualification of the Petitioner to contest in the elections is the subject matter of the proceedings pending at Eldoret in a matter that was filed on 11th February 2026, while the instant petition and the application were filed on 27th February 2026. 57. On the third issue, it is submitted that the contest on the change of date of the elections is the subject of the matter pending at Nairobi and the other one before this court at Bungoma, all cited in the foregoing paragraphs of this ruling. 58. It is further submitted that the elections forming the background of all the foregoing proceedings were held and concluded and officials duly registered as per the extract availed in court. It is submitted that the proceedings herein, as presented by the Petitioner, are bound to be merely academic. 59. Counsel for the 2nd Respondent submitted in support of the PO on a single issue of whether the same is merited. Counsel recited ***Sections 6 & 7 of the Civil Procedure Act*** and also relied on ***Joho & Another V Shahbal & 2 Others (supra)***. Counsel also relied on the *causa classic* of ***Mukhisa Biscuits Manufacturing Company Ltd V West End Distributors Ltd (1969) EA 696***. A plethora of other decisions were cited including ***Oraro V Mbanja (2005) KLR***. 60. On ***res judicata*** and ***sub-judice***, Counsel cited ***Onyango V Ochieno (2023) KEELC 18938 (KLR)***. It is submitted that the issue of whether the Petitioner was qualified to contest the elections is the subject matter in ***Eldoret ELRCC No. E009 of 2026 (supra)*** while the issue of the change of the date of elections is the subject matter of the proceedings pending at ELRC Nairobi and Bungoma cited above. 61. It is submitted that for the foregoing reasons, this petition and the application are ***res judicata*** and ***sub-judice*** and ought to be dismissed on the basis of the PO as raised by the 1st and 3rd Respondents. It is submitted that for the foregoing reasons, this court lacks the jurisdiction to hear and determine the application and the petition and the court is urged to down its tools – See ***Owners of Motor Vessel “Lilian S” V Caltex Oil (Kenya) LRD (1989) KECA 48 (KLR)***. 62. As noted elsewhere in this ruling, the Petitioner neither filed a further or supplementary affidavit to counter the replying affidavit by the 3rd Respondent nor filed written submissions in response to the foregoing submissions by Counsel for the Respondents. 63. **ANALYSIS & DETERMINATION** 64. The facts and the circumstances leading to the filing of this cause in court are presumably as presented by the Petitioner in the petition and the supporting affidavit thereto. However, there are other relevant facts raised in the replying affidavit of the 3rd Respondent that have not been challenged by the Petitioner in any way or manner. 65. The court has studied the petition herein alongside the application. The gist of the application and the petition is a challenge to the disqualification of the Petitioner from contesting in the union elections and the change of the date of the election. The court has alongside the above also studied the pleadings in ***Nairobi ELRC Petition No. E026 of 2026 and Eldoret ELRCC E009 of 2026*** and also ***Bungoma ELRC Petition No. E005 of 2026***. 66. In my considered view, and I so find and hold, the issues raised in this petition are the subject matter in the three other matters that are pending in court. It is my considered view, and I so find and hold, that the issues in this petition should thus be adequately addressed in those other three actions that were actually filed ahead of the instant petition. The first in time should prevail. 67. This petition is ***sub-judice*** in view of the above. The aspect of the change of date of the elections is ***res judicata*** in view of the ruling in the Nairobi (Keli J) matter cited above. 68. The Petitioner has engaged in a wild goose chase and expedition in filing multiple causes and actions, or being so involved in those matters without disclosing the same to the court, in the hope of getting a favourable decision in some or all of them. That is a classic example of abuse of the court process. It is vexatious to litigate over the same or similar issues over the same subject matter and clearly the Petitioner is fully aware and has participated in all the different matters mentioned in the foregoing paragraphs of this ruling. 69. For all the reasons stated above, the application is hereby dismissed. Suo motto, the petition is struck out for the same reasons stated above. **V.ORDERS** 1. ***The application by the Petitioner dated 26th February 2026 is hereby dismissed.*** 2. ***The petition herein is hereby struck out for being sub-judice, res judicata, and filed in abuse of the court process as per the reasons advanced in this ruling.*** 3. ***Costs of the application and the petition to the Respondents.*** **DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 7TH DAY OF JULY 2026.** **....................................** **DAVID NDERITU** **JUDGE**