https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1374

Magero v Kenya National Union of Teachers & 7 others (Petition E003 of 2026) [2026] KEELRC 1374 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1374 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Bungoma Petition E003 of 2026 DN Nderitu, J May 19, 2026 Between Erick Magero Petitioner and Kenya National Union Of Teachers 1st Respondent Kenya National Union Of Teachers, Busia Branch 2nd Respondent The County Labour Officer, Busia 3rd Respondent and Milton Barasa 1st Interested Party Jeremiah Nakafwa 2nd Interested Party Justin Musumba 3rd Interested Party Joseph Okemo 4th Interested Party Patrick Mulamba 5th Interested Party Ruling I.Introduction & Background 1.In a petition dated 12th February 2026 filed through Mwaura Benedict Njuguna & Company Advocates, the Petitioner is seeking for the following reliefs –a.A declaration that the KNUT Busia BEC election held on the 31st of January 2026 offended the strict and mandatory rules of natural justice, articles 35, article 41, article 47 of the Constitution as read with section 4(1), (2) and (3) of the Fair Administrative Action Act and was therefore illegal, ultra vires, unprocedural, unfair and unconstitutional null and void ab initio and be hereby condemned, revoked, quashed and or set aside.b.A declaration that the election of the interested parties in the KNUT Busia Branch in the elections held on 31st January 2026 is invalid ab initio and unlawful for being contrary to the KNUT constitution.c.An order cancelling the election of the interested parties in the KNUT Busia Branch in the elections held on 31st January 2026.d.In alternative to (c) above, an order for repeat elections for the contested posts, KNUT Busia Branch without affecting the election of the other officials thereof as elected in the elections of 31st January 2026.e.A declaration that the elections as conducted by the respondents were procedurally unfair as the 1st and 2nd respondents decided to overlook the well laid principles of natural justice and confirmed under articles 41 and 47 of the hence consequent results were unconstitutional, ultra vires, null and void a initio and are hereby condemned revoked, quashed and or set aside.f.A declaration that the 3rd respondent’s actions jointly and severally were in gross abuse of the national values principles under article 10(2)(b) and chapter 6 of the Constitution. Principles of public service under article 232 and principles of natural justice and therefore unconstitutional and a nullity.g.A declaration that the responder and its agents violated the petitioner’s right to compete favorably as envisaged under article 23(1) (2) (3) of the Universal Declaration of Human Rights and his constitutional right to fair labour practices under article 41 of the Constitution of Kenya.h.A declaration that the respondents jointly and severally breached the constitutional rights and freedoms of the petitioner under article 27(1), 28 and 29(d) and (f), 35, 41 and 47.i.The respondents be condemned to pay costs and interest incidental to these proceedings.j.Any other order or relief the Court deem necessary to grant. 2.The petitioner introduces himself as an adult male of sound mind, an active PP1 teacher, and a member of the 1st and 2nd Respondents; residing within the County of Busia in the Republic of Kenya. 3.The 1st Respondent is described as a Teachers’ Trade Union aimed at uniting teachers, improving their welfare, and promoting educational development. The other Respondents are variously described as per their self-explanatory names. 4.The background of the matter as presented by the Petitioner is that, elections of the 2nd Respondent held on 31st January 2026 violated the law and the internal regulations of the Constitution of the Union, the 1st Respondent. 5.It is on the foregoing basis that the Petitioner filed this petition and simultaneously filed a Notice of Motion (the application) of even date seeking for the following orders –1.That the application herein be certified as urgent and be placed before the duty judge for hearing forthwith.2.That a conservatory order in the interim be and is hereby issued staying and or suspending the swearing in ceremony/registration of the elected officials in the recently concluded KNUT Busia BEC elections pending the inter partes hearing of this Application.3.That a conservatory order in the interim be and is hereby issued restraining the Respondents from facilitating the assumption of office for the elected members pending the inter partes hearing of this Application.4.That a conservatory order in the form of a temporary injunction be and is hereby issued restraining the 1st and 2nd respondents from authorizing the swearing in of the elected officials from the recently concluded KNUT Busia BEC elections pending the hearing and determination of this Application and Petition.5.That the Court do issue any other orders and or reliefs that will ensure the subject matter of the petition is not rendered nugatory and the union Constitution is upheld and respected by all.6.That costs of this Application be in the cause. 6.Upon service of the petition and the application, the 1st and 2nd Respondents, through Nyamu & Nyamu Company Advocates, filed a notice of preliminary objection (PO) dated 17th February 2026 raising the following preliminary points –1.Both the Petition and the Notice of Motion are fatally defective as the same offend mandatory procedure set under the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025, particularly directions number 2 and 6.2.The Petition has omitted necessary parties, being the particular Returning Officer in person and the Registrar of Trade Unions who is mandated to register change of officers upon filing of Form Q.3.The Petition does not state the venue, the results of the election and howsoever declared.4.The Petition ought to be struck out in limine. 7.When the matter came up in court for directions on 17th February 2026, the court (Nzioki Wa Makau J) ordered and directed that the PO be heard and determined ahead of the application and the petition. Further, the court ordered and directed that the PO be heard and canvassed by way of written submissions. 8.Mr. Nyamu for the 1st and 2nd Respondents filed written submissions on the PO dated 13th March 2026 while Miss Mwanza for the Petitioner filed written submissions dated 3rd March 2026. 9.The 3rd Respondent and the Interested Parties did not respond to the petition or the application upon service. 10.This ruling thus is in regard to the PO as raised by the 1st and 2nd Respondents as opposed by the Petitioner. II. Submissions 11.In support of the PO, learned Counsel for the 1st and 2nd Respondents submitted on the single issue - Whether the PO dated 17th February 2026 has merits. Citing Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd (1968) EA 696, it is submitted that the PO raises pure points of law. It is further submitted that the petition and the application by the Petitioner offend the procedure provided for in the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions 2025, and more so Directions 2 & 6 thereof. 12.Citing Bichang’a & 2 Others V Kenya National Union of Teachers (KNUT) & 4 Others (2026) KEELRC 135 (KLR), this court is urged to dismiss the petition and the application herein as the Petitioner did not comply with Directions 2 & 6 of the above cited Directions. It is submitted that the failure by the Petitioner to comply with the cited Directions is not a mere technicality but an issue that goes to the core and root of the validity and legality of the petition and the application herein. 13.Counsel drew a parallel between union elections and the national parliamentary and presidential elections. It is submitted that the procedural requirements for challenging union elections have been complied with including all rules, regulations, directions and, all the applicable laws, just like the national elections. The court is invited to apply the principles set out in Raila Odinga & 5 Others V IEBC & 3 Others (2013) eKLR amongst other decisions. 14.Further, the court is invited to observe and conclude that the petition as presented blatantly failed to provide the mandatory particulars demanded for under Direction 6. It is submitted that the petition does not disclose the venue, results, the declaration of the results and the manner thereof, and the date of the declaration. It is further submitted that the returning officer of the election is neither named nor joined as a party in the petition. Likewise, it is submitted that the Registrar of Trade Unions has been omitted in the proceedings, yet he/she should be a pertinent party thereto. 15.It is vehemently argued that the omission of the two parties mentioned above renders the petition fatally defective and the court is urged to dismiss the petition and the application in le mine. 16.Learned Counsel for the Petitioner identified the same issue for determination as Counsel for the 1st and 2nd Respondents. Citing Mukhisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd (supra), it is submitted that the issues raised in the PO are mere technicalities. It is submitted that Directions 2 & 6 are not relevant to the PO raised as the same relate to “the interpretation of the terms” and “the place of suing and hearing” respectively. 17.Without prejudice to the above, it is submitted for the Petitioner that the PO as framed does not raise points of law. It is submitted that the same raises issues of facts that the court may not ascertain without a full hearing of the petition. It is submitted that matters relating to Directions 2 & 6 cited in the PO may only be ascertained by way of a hearing. 18.Further, it is submitted that joinder or non-joinder of a party should not defeat the petition. It is submitted that the Petitioner is still legally entitled to amend the petition with the leave of the court. It is submitted that subsidiary legislation should not override substantive law and that the Oxygen Rule is a product of the law. 19.It is further submitted that the alleged facts of where the elections took place, date, and time are all matters of fact that shall come to the fore during the hearing. The same is said to apply to matters of the results of the elections, the manner of declaration thereof, and other related facts. Counsel cited Oraro V Mbaja (2005) 1 KLR 141 in support of the argument that disputed facts should not form the basis of a PO. 20.The court is urged to consider its main objective in litigation - to do justice - as provided for under Sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution and hence ignore the mere technicalities raised in the PO. The court is beseeched not to strike out the petition at this stage but rather dismiss the PO with costs. III. Analysis & Determination 21.It is settled law that a PO properly raised should consist of matters or points of law as opposed to facts that may require a hearing or an inquiry by the court to ascertain the validity and veracity of such facts. That is the gist of the ratio in the causa classicus Mukhisa Biscuits Manufacturing Limited V West End Distributors Limited (supra). 22.The court has gone through the petition, the application, and the PO as raised by the 1st and 2nd Respondents. The issues raised in the PO, and Counsel for the parties submitted on the same, is whether the same raises sufficient preliminary points of law warranting the striking out of the petition and the application at this stage of the proceedings. It is important to note that other than the PO, the 1st and 2nd Respondents did not substantively respond to the application and the petition. As noted elsewhere in this ruling, the 3rd Respondent and the Interested Parties have also not responded to the petition and the application. 23.In the circumstances, therefore, the factual basis of the petition and the application remain unchallenged. 24.Further, it is my considered view that while the petition as presented raises triable issues that may need the interrogation and determination by the court on merits, the issues raised in the PO are matters of law as envisaged in the authority cited above, as to comprise a proper PO. The court takes the view that the issues raised in the PO based on Direction 6 of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions 2025 go to the core and the substance of the petition and the application. 25.While joinder or non-joinder of the parties mentioned in the PO does not render the petition and the application defective as the court should proceed to hear and determine the same as between the parties named, the court is persuaded that the petitioner has failed to comply with Direction 6(b) (c) & (d). 26.The court has examined Direction 6 cited above that for ease of reference provides as follows –6.(1)An election petition shall state—(a)the name, physical and postal address, email address, telephone number and any other necessary particulars of the petitioner, respondent or the union official whose election is challenged;(b)the venue and date when the election in dispute was conducted;(c)the results of the election, if any, and however declared;(d)the date of the declaration of the results of the election;(e)the grounds of law or fact and particulars upon which the petition is presented; and(f)the relief the Court is requested to grant.(2)The petition shall be divided into paragraphs, each of which shall be confined to a distinct portion of the subject, and every paragraph shall be numbered consecutively.(3)The petition shall conclude with a statement of particulars of the reliefs sought.(4)The petition shall—(a)be signed by the petitioner or by the petitioner’s advocate;(b)be supported by an affidavit sworn by the petitioner exhibiting all relevant documents relied upon; and,(c)a list of the petitioner’s witnesses, if any, together with the affidavit signed by such witness.(5)Where more than one petition is presented relating to the same election, such petitions may be consolidated and dealt with together, so far as the consolidation makes the inquiry into the concerned election more convenient, efficient and complete. 27.It is abundantly clear that the petitioner has omitted in the petition the venue where the election was held, the results of the election, and the manner and date of the declaration of the results. These are important and vital ingredients that go to the core of the petition. While the petitioner appears gravely offended by the procedure in the elections, it is the results that declared the winner and the loser. 28.In my considered view, the above omissions render the petition fatally defective. 29.For the reasons stated above, the PO as raised by the 1st and 2nd Respondents is allowed with no order as to costs.III.Ordersi.The preliminary objection raised by the 1st and 2nd Respondents is hereby upheld and the petition herein alongside the application are hereby struck out.ii.There is no order as to costs. DELIVERED VIRTUALLY, DATED, AND SIGNED AT BUNGOMA THIS 19TH DAY OF MAY 2026.....................................DAVID NDERITUJUDGE