https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2424

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELECTION PETITION NO. E186 OF 2026 JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION WILLIAM LENGOYIAP………………………………………………………….……………………………PETITIONER VERSUS KENYA UNION OF POST- PRIMARY EDUCATION TEACHERS(KUPPET) …..……………………………………….1ST RESPONDENT THE SECRETARY GENERAL-KUPPEТ ........................................................................2ND RESPONDENT THE NATIONAL ELECTIONS BOARD -KUPPET………………………………………...3RD RESPONDENT THE COUNTY LABOUR OFFICER, SAMBURU COUNTY………………………...…..4TH RESPONDENT THE REGISTRAR OF TRADE UNIONS…………………………………………………...…5TH RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING (On the Notice of Preliminary Objection dated 23rd June 2026) 1. The petitioner, dissatisfied with the KUPPET Samburu County Branch elections conducted on 22nd February 2026 at Maralal Polytechnic, filed a petition dated 29th May 2026 on 5th June 2026 seeking the following relief- 2. A DECLARATION that the KUPPET Samburu County Branch elections conducted on 22nd February 2026 at Maralal Polytechnic were unconstitutional, unlawful, null, and void for non-compliance with the Constitution of Kenya, the Labour Relations Act, the binding circular of the Registrar of Trade Unions dated 25th September 2025, and the Constitution of the 1st Respondent Union. 3. A DECLARATION that the 1st, 2nd, 3rd, 4th, and 5th Respondents violated the Petitioner's rights under Articles 27, 36, 41, 47, 50, and 81(e) of the Constitution of Kenya, 2010. 4. A DECLARATION that the Respondents violated Section 4(2)(b) of the Labour Relations Act, 2007 by denying eligible KUPPET members the right to participate in the union's lawful activities, including the right to vote. 5. A DECLARATION that the Respondents violated the binding circular of the Registrar of Trade Unions dated 25th September 2025 by failing and/or refusing to submit the Samburu Branch membership register to the County Labour Officer at least sixty (60) days before the election date. 6. A DECLARATION that the conversion of KUPPET members to agency fee status without notice, consultation, or consent was unlawful, null, and void, and that all members so converted remain, and have always remained, full members of KUPPET with full voting rights. 7. A DECLARATION that the failure to provide polling booths and protect the secrecy of the ballot violated Article 81(e)(i) and (ii) of the Constitution and rendered the election invalid. vii. A DECLARATION that voter bribery was perpetrated by the declared winner, Peter Ltantiran Letipila, and facilitated by senior. 8. On an even date, the petitioner further filed an application by way of Notice of Motion and sought the following orders- 9. Spent 2) THAT this Honourable Court be pleased to deem the Election Petition dated 29th May 2026 as properly on record pursuant to the directions issued in Judicial Review Application No. E027 of 2026. 3)THAT this Honourable Court be pleased to grant leave to the Petitioner to file and prosecute this Election Petition out of time and to deem the Petition as duly filed and served upon compliance with all procedural requirements. 4) IN THE ALTERNATIVE to Prayer 3 above, this Honourable Court be pleased to extend time for the filing and service of this Election Petition by such period as the Court may deem fit, in the interests of justice. 5) THAT this Honourable Court be pleased to order that this Election Petition be consolidated with and/or heard together with other related Election Petitions and proceedings raising substantially similar issues concerning the 1st Respondent’s electoral processes, including but not limited to Petition No. E013 of 2026 and any other connected matters pending before this Court. 6) THAT the costs of this Application be in the cause. 1. The respondents filed a Notice of Preliminary Objection dated 23rd June 2026, seeking the petition to be struck out on the following grounds- 2. The Samburu KUPPET Branch election was conducted and concluded on 22nd February, 2026 and the results declared on the same date. This Petition was filed on 29th May, 2026: 3 months later. The entire suit offends Clause 5(3) of the Employment and Labour Relations Court Act (Trade Union Election Disputes) Procedure and Practice Directions 2025 which dictates thus: "An election petition SHALL be filed within twenty-one (21) days from the date of declaration ofthe results of a trade union election." 3. It follows that this Honourable Court lacks jurisdiction. 4. The issue of jurisdiction of the court having been raised, the court directed the Notice of Preliminary Objection be canvassed first by way of written submissions. Both parties filed Decision Whether the Notice of Preliminary objection has merit. 1. The Respondents' Preliminary Objection is premised on that the Petition was filed outside the twenty-one (21) day period prescribed under Clause 5(3) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025. The respondent contends, and it is not in dispute, that the impugned elections were conducted on the 22nd February 2026 and that the instant petition was filed on the 29th May 2026. The Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, Rule 5 provides for the filing of petitions as follows- ‘Filing of election petition. (1) An election petition shall expressly state that the petitioner is entitled to petition under section 34(4) of the Labour Relations Act which provides that disputes arising from election of trade union officials or connected directly or indirectly to the elections may be referred to the Court. Title- A person filing the election petition shall title it as such by providing for the number and year of filing at the top thus “Election Petition No. … of ...(year)”. (3) An election petition shall be— (a) filed within twenty one days from the date of declaration of the results of a trade union election; (b) served upon the respondent together with the affidavit and exhibits within not more than fifteen days of filing or such shorter time as the Court may direct; and, (c) filed electronically at the relevant court’s registry or sub registry and on the payment of the prescribed filing fees.’ The non-compliance is not in dispute. Indeed, the petition was filed together with a notice of motion application seeking an extension of time. 1. The petitioner contended that, in advancing that argument, the Respondents deliberately overlook the fact that the Petitioner contemporaneously filed a substantive Notice of Motion dated 29th May 2026 seeking leave to file the Petition out of time and for the Petition to be deemed as duly filed. That application remains pending for determination before this Honourable Court and ought to be determined first. 2. The law governing Preliminary Objections is well settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA held that a Preliminary Objection consists of a pure point of law which is argued on the assumption that all the facts pleaded by the opposite party are correct and which, if successful, is capable of disposing of the suit without requiring the Court to ascertain facts or exercise judicial discretion. Sir Charles Newbold, P. further warned that a Preliminary Objection cannot be raised where any fact has to be ascertained or where the Court is called upon to exercise discretion.’ 3. The jurisdiction of the court is challenged based on timelines. I find that the timeline of 21 days stated in the rules for filing trade union election petitions to be a pure point law. The fact of timeline is not contested. The petitioner contended that he had earlier approached the court vide judicial review application No. E027 OF 2026 to challenge the results, and the same was struck out, and the court expressly granted the petitioner liberty to join the Nakuru and Nairobi election petitions. The petitioner states that the court granted the petitioner liberty to file an election petition. 4. The undisputed fact is that the instant petition was filed outside the 21 days for filing the petition. The petitioner knew that and filed an application to extend time. Justice Nzioki was Makau in Bichang’a & 2 others v Kenya National Union of Teachers (KNUT) & 4 others [2026] KEELRC 135 (KLR) upheld a preliminary objection and struck out a petition for non-compliance with trade union election procedure and practice direction. The judge held –‘The Petitioners at the point of ex parte hearing of the motions under a certificate of urgency, were directed by the Court to comply immediately with the ELRC Practice Directions on Trade Union Election Disputes 2025. The Court was referring to the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions 2025 which are germane to proceedings such as the petitions before the Court. The Petitioners did not comply with this direction and now assert through Counsel that they will move the Court to have an amendment done. The Petitioners did not comply with Directions 2 and 6 of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions 2025. Compliance or non-compliance with the Rules is a pure point of law. It does not require the establishment of facts. An objection can be taken to the pleadings already filed and the notice of preliminary objection is sufficient basis to challenge the provenance of a suit that is dead on arrival. One does not need to file elaborate pleadings to have a matter that can be determined in limine in order for the Court to make a determination thereon. That would be a waste of resources and scarce judicial time.’ The decision was upheld by Justice Dr. Gakeri in Masika & 2 others v Butiko & 4 others [2026] KEELRC 1230 (KLR) as follows-‘Guided by the decision in Bichang’a & 2 others v Kenya National Union of Teachers (KNUT) and 4 others (supra) where the Petitioners/Applicants petition was struck out for non-compliance with Directive 2 and 6, the court is satisfied that the instant Petition is unsustainable for noncompliance with the provisions of the Trade Union Election (Election Petition) Rules 2014 and the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directives.’ The instant petition was filed out of time and thus in violation of the said rules. I am persuaded by the 2 decisions of my brothers to hold that the petition was filed in violation of the rules on timelines. 5. The petitioner contends that the preliminary objection is premature as they had a pending application for extension of time. The petitioner relied on the decision of the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR). In that case the appellant filed the appeal without leave of the court and sought for leave to validate the appeal. This was the case here. The petition was filed simultaneously with an application for leave to file the petition out of time. The Supreme Court pronounced itself on the principles for extension of time as summarized by the court in Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others [2015] eKLR Neutral citation: [2015] KESC 20 (KLR) as follows: ’29.As regards extension of time, this Court has already laid down certain guiding principles. In the Nick Salat case, it was thus held: “… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant. “… we derive the following as the underlying principles that a Court should consider in exercising such discretion: extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court; a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court; whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis; where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court; whether there will be any prejudice suffered by the respondents, if extension is granted; whether the application has been brought without undue delay; and whether in certain cases, like election petitions, public interest should be a consideration for extending time” [emphasis supplied]’’In the Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) where appeal had been filed before grant of leave to file out of time , like in the instant case, the court held-‘The purported appeal, to wit, Petition No 10 of 2014 is hereby struck out and expunged from the court’s record. The time limited for filing of a petition of appeal by the applicant is hereby extended. The applicant is granted leave to file an appeal within 14 days from today’s date. The applicant shall bear the respondents’ costs in this application.’’ In essence, it was a case of chicken before the egg. The petitioner in the instant case, just like in the Salat case, filed a petition out of time together with an application for extension of time. I find the petition is for striking out guided by the Salat case. 6. The court noted the petitioner misled it in alleging the court stated he was at liberty to file a petition. The court in the JR case by the petitioner ruling of 22nd may 2026 held as follows- ‘The court further holds that the proper way to approach the court was vide election petition under 34(4) of the Labour Relations Act which provides that disputes arising from election of trade union officials or connected directly or indirectly to the elections may be referred to the Court and as guided under the 2025 Employment and Labour Relations Court(Trade Union Election Disputes) Procedure and Practice Directions. The application is struck off for being defective. The court grants the ex parte applicant leave to join the pending election petition, Petition No. E013 of 2026 if he so wishes. I make no order as to costs in the application as the applicant is a member of the KUPPET and his application was not frivolous. The file is marked as closed.’’ I say no more. 7. The Notice of Preliminary Objection dated 23rd June 2026 by the 1st, 2nd and 3rd Respondents is allowed, and the petition dated 29th May 2026 is struck off for being filed outside the timelines stated in the Employment and Labour Relations Court (TRADE UNION ELECTION DISPUTES) Procedure and Practice Directions. The application for extension of time ought to have been filed first, and, in the event of the grant of leave, that was the only time the petition could be filed, as held in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), a decision binding on this court. The Notice of Preliminary Objection dated 23rd June 2026 is allowed with costs to the respondents. The petition dated 29th May 2026 is struck off for being time-barred. 8. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner: Munyalo h/b Okundi 1st ,2nd ,3rd Respondents: Ms Okello