[2021] KEELRC 1828 (KLR)
The court found that the Petitioners failed to discharge the evidential burden required to prove their allegations of irregularities in the Migori KUPPET branch elections. The Petitioners did not provide specific dates or evidence showing they were denied access to the voters' register, nor did they file the alleged...
Source-derived case information.
- Citation
- [2021] KEELRC 1828 (KLR)
- Parties
- Applicant: Kenneth Ouma Boro; Applicant: Bernard Obonyo; Applicant: Kevin Mijungu; Applicant: Paul Ouru Migwambo; Applicant: Francis Marua Mahaba; Applicant: Millie Mulonga; Applicant: Seth Kanyango; Applicant: John Adwar; Applicant: Rachel Boke Erustus; Applicant: Jacinta Riro Robi; Respondent: Kenya Union of Post-Primary Education Teachers; Respondent: Henri Otunga; Respondent: George Okatch; Respondent: Samuel Orwa Okinyi; Respondent: Rollex Owino; Respondent: Florence Adhiambo Ouma; Respondent: Bon Ogalo; Respondent: Kevin Odhiambo Otieno; Respondent: Fredrick Nyabuogi; Respondent: Sheila Omuga; Respondent: Charity Omolo
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause E005 of 2021
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed with costs
- Legal Topics
- Trade Union Elections, Right to Fair Labour Practices, Electoral Procedures, Union Membership Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Ouma Boro
Applicant
Bernard Obonyo
Applicant
Kevin Mijungu
Applicant
Paul Ouru Migwambo
Applicant
Francis Marua Mahaba
Applicant
Millie Mulonga
Applicant
Seth Kanyango
Applicant
John Adwar
Applicant
Rachel Boke Erustus
Applicant
Jacinta Riro Robi
Applicant
Kenya Union of Post-Primary Education Teachers
Respondent
Henri Otunga
Respondent
George Okatch
Respondent
Samuel Orwa Okinyi
Respondent
Rollex Owino
Respondent
Florence Adhiambo Ouma
Respondent
Bon Ogalo
Respondent
Kevin Odhiambo Otieno
Respondent
Fredrick Nyabuogi
Respondent
Sheila Omuga
Respondent
Charity Omolo
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the Migori KUPPET branch elections held on 16th January 2021 were conducted lawfully and in compliance with the Union's constitution and regulations.
- 2 Whether non-members were allowed to vote in the elections, thereby invalidating the results.
- 3 Whether qualified members were barred from voting in the elections.
Ratio Decidendi
The court found that the Petitioners failed to discharge the evidential burden required to prove their allegations of irregularities in the Migori KUPPET branch elections. The Petitioners did not provide specific dates or evidence showing they were denied access to the voters' register, nor did they file the alleged letter demanding compliance. The Respondents, through affidavit evidence, demonstrated that all candidates had an opportunity to inspect voting materials prior to the election. Allegations that non-members voted were unsupported by evidence, as there was no proof that the named individual accessed voting materials or participated in voting. Claims that qualified members were...
Court Disposition
petition dismissed with costs
Orders
- The Petition is dismissed with costs to the Respondents.
Full Case Text
Judgment text and source record
82 paragraphs
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
PETITION NO. E005 OF 2021
IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 27, 36, 41 AND 47 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 36 AND 41 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF RULES 10, 11, 22, 23 AND 24 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013
AND
IN THE MATTER OF SECTIONS 4, 33 AND 34 OF THE LABOUR RELATIONS ACT
AND
IN THE MATTER OF REGULATIONS 2, 5 AND 8 OF THE KENYA UNION OF POST-PRIMARY EDUCATION TEACHERS REGULATIONS (REGULATIONS FOR BRANCH ELECTIONS) 2021
AND
IN THE MATTER OF REGULATIONS 2, 5 AND 8 OF THE KENYA UNION OF POST-PRIMARY EDUCATION TEACHERS REGULATIONS (REGULATIONS FOR BRANCH ELECTIONS) 2021
AND
IN THE MATTER OF ELECTION OF OFFICIALS OF THE KENYA UNION OF POST-PRIMARY EDUCATION TEACHERS CARRIED OUT ON 16TH JANUARY 2021
BETWEEN
KENNETH OUMA BORO 1st PETITIONER
BERNARD OBONYO 2nd PETITIONER
KEVIN MIJUNGU 3rd PETITIONER
PAUL OURU MIGWAMBO 4th PETITIONER
FRANCIS MARUA MAHABA 5th PETITIONER
MILLIE MULONGA 6th PETITIONER
SETH KANYANGO 7th PETITIONER
JOHN ADWAR 8th PETITIONER
RACHEL BOKE ERUSTUS 9th PETITIONER
JACINTA RIRO ROBI 10th PETITIONER
VERSUS
KENYA UNION OF POST-PRIMARY
EDUCATION TEACHERS 1st RESPONDENT
HENRI OTUNGA 2nd RESPONDENT
GEORGE OKATCH 3rd RESPONDENT
SAMUEL ORWA OKINYI 4th RESPONDENT
ROLLEX OWINO 5th RESPONDENT
FLORENCE ADHIAMBO OUMA 6th RESPONDENT
BON OGALO 7th RESPONDENT
KEVIN ODHIAMBO OTIENO 8th RESPONDENT
FREDRICK NYABUOGI 9th RESPONDENT
SHEILA OMUGA 10th RESPONDENT
CHARITY OMOLO 11th RESPONDENT
JUDGMENT
1. The Petitioners moved the Court on 20 January 2021, alleging that the Kenya Union of Post-Primary Education Teachers (the Union), Migori branch elections held on 16 January 2021 were unlawful because the Union’s Election Regulations had not been complied with. It was further alleged that non-members had been allowed to vote.
2. On the same day, the Petitioners filed a Motion under a certificate of urgency seeking certain interim reliefs.
3. When the Motion was placed before the Court, it directed that service be effected upon the Respondents.
4. On 25 January 2021, the Court allowed the Petitioners to file and serve an Amended Petition.
5. The Court further directed that the Motion and Amended Petition be taken together. The parties were also directed to file and exchange affidavits and submissions.
6. The Amended Petition was filed on 3 February 2021, and the Union filed Grounds of Opposition, Reply to Petition on 12 February 2021. The 2nd to 11th Respondents filed a Reply to the Amended Petition and a replying affidavit on 18 February 2021.
7. The Petitioners filed their submissions on 16 March 2021 (should have been filed/served before 3 March 2021), and they identified the Issues for adjudication as:
(i) Whether the Petitioners have established a case for setting aside the elections and/or nullification of the elections held on 16th January 2021.
(ii) Whether the Migori KUPPET branch elections were procedural, lawful and complied with the constitution and Regulations of KUPPET.
8. The Union filed its submissions on 16 March 2021, and it adopted the Issues as identified by the Petitioners.
9. The 2nd to 11th Respondents filed their submissions on 24 March 2021, and they identified the Issues for determination as:
(i) Whether inspection of voters register was allowed to members of the Union?
(ii) Whether non-qualified persons were allowed to vote and Migori branch members were barred from voting?
(iii) Whether any election regulations were violated and/or disregarded?
(iv) Whether the elections were free and fair?
10. The Court has considered the Motion, Amended Petition, affidavits and submissions on record.
Lawful/Procedural elections
11. The Petitioners challenged the electoral process on varied grounds, and the Court will consider them.
Inspection of voters register
12. One of the grounds advanced by the Petitioners was that the candidates were not allowed to check the voter register and that the register was not deposited with the County Labour Officer.
13. The Petitioners did not disclose the dates they made attempts to check the voters' register. Although asserting that a letter was written by their advocates demanding compliance, a copy of the letter was not filed in Court.
14. The Court notes an affidavit from the Returning Officer that a meeting was held with all the candidates prior to the election and that all voting materials were inspected and verified.
15. The Petitioners did not prove this ground or demonstrate how it affected the outcome of the elections.
Non-members voting
16. The Petitioners also alleged that non-qualified members were allowed access to materials and vote. The name of one person was disclosed.
17. There was no evidence that the named person accessed voting material or interfered with the voting material. There was no evidence that she voted.
Members not allowed to vote
18. The Petitioners further challenged the elections on the ground that some members were not allowed to vote, and to support the allegations, two affidavits from Millicent Anyange and May Vincent Alande were filed.
19. Despite the affidavits, these two did not file any evidence to show that they were members of the Union in good standing or qualified to vote.
Inconsistent tallies
20. The Petitioners also assailed the elections on the ground that 1535 persons voted for the position of Chairperson while 1539 voted for the position of Executive Secretary.
21. A copy of the details of elected officials filed in Court does not support the allegation. The Chairperson got 1022 votes, according to the returns.
22. From the above, the Court finds that the Petitioners did not discharge the evidential burden expected of them.
23. The Petition is dismissed with costs.
Delivered through Microsoft teams, dated and signed in Nairobi on this 21st day of April 2021.
Radido Stephen, MCIArb
Judge
Appearances
For Petitioners Cheboi Ouma & Associates Advocates
For 1st Respondent Otieno C.O. Ayayo & Co. Advocates
For 2nd to 11th Respondents F. Ndar Omollo & Associates Advocates
Court Assistant Chrispo Aura