https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2433

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI CONSTITUTIONAL PETITION NO. E088 OF 2026 JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION IN THE MATTER OF THE CONTRAVENTION OF ARTICLES 2, 3, 10, 19, 27, 28, 35, 41 AND 47 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE LABOUR INSTITUTIONS ACT CAP 234 AND LABOUR RELATIONS ACT CAP 233 AND IN THE MATTER OF THE ELECTION OF OFFICIALS OF THE CENTRAL ORGANIZATION OF TRADE UNIONS (KENYA) (COTU-K) HELD ON 14TH MARCH 2026 AND IN THE MATTER OF THE CIRCULAR DATED 25TH SEPTEMBER 2025 BY THE REGISTRAR OF TRADE UNIONS AND IN THE MATTER OF THE NATIONAL VALUES AND PRINCIPLES OF GOVERNANCE BETWEEN FAZUL MAHAMED………………………………..………………………………….……………...…1ST PETITIONER INSTITUTE FOR DEMOCRATIC GOVERNANCE……………….........................….....…2ND PETITIONER -VERSUS- CABINET SECRETARY, MINISTRY OF LABOUR & SOCIAL PROTECTION………...……………………………1ST RESPONDENT PRINCIPAL SECRETARY, LABOUR & SKILL DEVELOPMENT……………….………………………………………………………………..……2ND RESPONDENT REGISTRAR OF TRADE UNIONS ………….……………………………………………….…3RD RESPONDENT COMMISSIONER FOR LABOUR……….……………………….………………………..……4TH RESPONDENT CENTRAL ORGANIZATION OF TRADE UNIONS (KENYA)………….………………………………………………….....……………………………..…5TH RESPONDENT ATTORNEY GENERAL….…………………………………………....................................……6TH RESPONDENT -AND- FRANCIS ATWOLI………………………..………………...................................………1ST INTERESTED PARTY KENYA NATIONAL UNION OF TEACHERS…..………………………………...2ND INTERESTED PARTY KENYA UNION OF POST PRIMARY EDUCATION TEACHERS …………………………………………………………………3RD INTERESTED PARTY KENYA MEDICAL PRACTITIONERS & DENTISTS UNION……………………………………………………..……...…...……4TH INTERESTED PARTY LAW SOCIETY OF KENYA………………..…………………………………..…...…..…5TH INTERESTED PARTY KATIBA INSTITUTE……………………..……….……………………………….....………6TH INTERESTED PARTY CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The 1st Petitioner, a Kenyan citizen acting in the public interest, and the 2nd Petitioner, a non-governmental organisation focused on democracy, commenced this suit vide a Petition dated 16th March 2026 seeking:- 2. *A DECLARATION that the election of the 1st Interested Party, together with any person(s) purportedly elected or declared elected on 14th March 2026 as officials of the Central Organization of Trade Unions (Kenya) (COTU-K) during the 15th Quinquennial Governing Council Delegates Conference and Elections held at Tom Mboya Labour College, Kisumu, were conducted in violation of the Constitution of Kenya, the registered COTU-K constitution; and are therefore sham elections, unlawful, null and void ab initio, and are hereby declared nullified and/or quashed.* 3. *A DECLARATION is hereby made that the actions of the Respondents constitute a violation and infringement of the constitutional rights and fundamental freedoms of the petitioners and all union members to fair labour practices, including the right to participate in the activities and programmes of a trade union, as guaranteed under Article 41 of the Constitution of Kenya, 2010.* 4. *A DECLARATION that the purported election of the Central Organization of Trade Unions (Kenya) (COTU-K), held on 14th March 2026 at Tom Mboya Labour College, Kisumu, is unconstitutional for contravening Articles 10, 27, 28, 35, and 41 of the Constitution of Kenya, 2010, and is accordingly invalid, null, and void ab initio.* 5. *An order of permanent injunction be and is hereby issued barring the 3rd Respondent (the Registrar of Trade Unions) or any person acting under her authority, from registering, gazetting, or publishing the names of the 1st interested party and/or any person(s) purportedly elected or declared elected as officials of the Central Organization of Trade Unions (Kenya) (COTU-K) during the 15th Quinquennial Governing Council Delegates Conference and Elections held on 14th March 2026 at Tom Mboya Labour College, Kisumu.* 6. *An order compelling the respondents to bear the costs of this suit.* 7. *The Honourable Court be pleased to make any further orders as it deems fit.* 8. The Petition was filed alongside the Supporting Affidavit of the 1st Petitioner sworn on 16th March 2026, with the bundle of documents in support of the Petition attached. 9. In response to the Petition, the 5th Respondent and the 1st to 4th Interested Parties filed a Notice of Preliminary Objection dated 18th March 2026 and a Replying Affidavit sworn by the 5th Respondent on 24th March 2026. The 3rd Respondent filed a Replying Affidavit sworn by ANN KANAKE on 19th March 2026. Hearing and evidence 1. The petition was canvassed by way of written submissions. The Petitioners’ case in summary 1. The instant petition challenges the legality of the 5th Respondent’s national elections, held on 14th March 2026 at Tom Mboya Labour College, Kisumu, during the 5th Respondent’s Quinquennial Governing Council Delegates Conference, at which the 1st Interested Party was re-elected unopposed to a sixth term as Secretary General. 2. The Petitioners’ grievances are that the 5th Respondent held its umbrella-body elections before its affiliate unions had even completed their own branch and national elections bringing the validity of its electorate into question; and the manner in which the elections were held violated the prescribed electoral calendar, the Labour Relations Act, individual union constitutions, and Constitutional and International Labour Organization protected rights of association. 3. In particular, the Petitioners complain that the 5th Respondent acted contrary to the established nationwide trade union electoral cycle which is founded on Section 34 of the Labour Relations Act and is designed to ensure democratic governance within trade unions, whereby the election cycle begins at the branch level, with members of an affiliate trade union directly electing their branch officials, who then convene at the national level to elect the affiliate union's national leadership, who then form the affiliate union's delegation to the umbrella body of trade unions, the Central Organization of Trade Unions (Kenya), the 5th Respondent herein, where they participate in electing it officials, completing the democratic cycle that began with members at the grassroots level. 4. It is averred that the 3rd Respondent kicked off the nationwide trade union electoral cycle in accordance with Section 34 of the Labour Relations Act which provides that trade union officials must be elected by secret ballot at least once every five years, by issuing a Circular, on 25th September to all registered trade unions, employers’ organisations, and federations notifying them of the 2026 Trade Union Elections Cycle, namely that; 5. Branch Elections be conducted from 5th January to 31st March 2026; 6. National Elections be conducted from 1st April to 30th June 2026; and 7. Central Organization for Trade Unions (COTU) elections be held by 30th August 2026. 8. The Petitioners aver that the said Circular outlines a clearly structured and sequential electoral cycle, confirming that trade union elections are a process not an event. Further, the 3rd Respondent enumerated, within the same Circular of 25th September 2025, the pre-election requirements for the 2026 trade union electoral cycle, and reminded the Authorized representatives of Trade Unions, Employers' Organizations, and Federations of their obligations which included: 9. Membership registers at both the branch and national level must be updated before the elections 10. For Unions whose Constitutions provide for their elections to be overseen by the Commissioner for Labour, certified copies of the registers must be furnished to the Commissioner for Labour (for national offices) and the same to the respective County Labour Officers (for branch offices) at least sixty (60) days before the elections. 11. Additionally, Unions whose Constitutions provide for their elections to be overseen by the Commissioner for Labour are required to furnish the Commissioner for Labour and respective County Labour Officers with certified copies of the Union Constitutions. 12. Where internal election mechanisms (such as election boards/committees) have been provided by Union Constitutions, such bodies must be constituted in line with the respective Constitutions and the necessary documents submitted to the respective authorized supervisors. 13. Only fully registered paid-up members are entitled to vote, and Non-members who merely pay agency fees are not entitled to vote. 14. Schedules of branch and national elections must be submitted to the Registrar and the Commissioner for Labour, as well as County Labour Officers (where the case applies), at least Sixty (60) days before the elections to facilitate adequate planning. 15. The venue of the elections must also be communicated to the Registrar and other supervising officers at least Thirty (30) days before the elections. 16. The Petitioners point out that the timelines for the conduct of elections, as set out in the Circular dated 25th September 2025 remain unchallenged and unamended. Notably, no applications for extension, modification, or deviation from the prescribed electoral schedule have been filed with or approved by the Registrar, meaning that all unions and federations are legally obliged to adhere strictly to the original timelines. Compliance with the said timelines meant that the affiliate trade unions of the Central Organization of Trade Unions (Kenya), the 2nd to 4th Interested Parties herein, were expected to be conducting their branch elections (the first stage of the electoral process), as at the time the 5th Respondent conducted its elections. The Petitioners disclose that some branches of the 2nd, 3rd and 4th Interested Parties who were yet to conclude their branch elections as at 14th March 2026, and National Elections for the Interested Parties, which were scheduled for 1st April 2026 to 30th June 2026 were yet to also be conducted. 17. The Petitioners contend that the actions of COTU-K, the 5th Respondent, of holding its elections and declaring officials on 14th March 2026, well before its affiliate member trade unions had held the required branch and national-level elections and even before the official national-level election period had commenced, is unlawful, and undermines the democratic and statutory trade union electoral process. They state that the 5th Respondent cannot validly conduct elections before its affiliate trade unions have held both their branch elections and national elections, hence it has put the cart before the horse, jumped the queue, turned the electoral process on its head, rendering the outcome illegal. 18. It is the Petitioners’ case that the 5th Respondent violated the 3rd Respondent’s Circular dated 25th September 2025 which set the election timelines and imposed specific pre-election requirements. It is averred that membership registers of affiliate trade unions at branch and national level were not updated thereby undermining voter eligibility verification, compromising the integrity of the electoral process, and denying members their fundamental right to participate in selecting their representatives; no independent electoral boards/committees were constituted by the 5th Respondent, as well as the 2nd to 4th Interested Parties as required by the respective union constitutions, and no disclosure was made of who (if anyone) served on them; no formal notice of vacancies was issued to members, preventing candidate preparation and nomination; no scrutiny of nomination papers was conducted to verify candidates met statutory and constitutional (Union) eligibility criteria; no accreditation or provision was made for agents/independent observers to monitor the electoral process; no voters' roll was published by the 5th Respondent and 2nd to 4th Interested Parties prior to the election opening up the process to manipulation and disenfranchisement; and no official voting/polling centres were designated or communicated to members hence there is no verifiable evidence as to where or how any voting was conducted, further casting serious doubt on the existence and integrity of the purported election.. 19. The actions of the 5th Respondent of holding a rushed, out of sequence election, according to the Petitioners, also violated Section 34 of the Labour Relations Act 2007 which establishes an election "process” not an “event"; the affiliate Union’s own Constitutions, with KNUT, the 2nd Interested Party, used as an illustration, in that its failure to complete the constitutionally (Union) mandated process meant that any delegates they sent, or were deemed to send, to the COTU-K election lacked valid constitutional (Union) authority to vote there; Articles 10, 19, 27, 28, 35, 41 and 47 of the Constitution of Kenya; and International Labour Organization Convention 87. 1. The Petitioners emphasize the rights to freedom of association and fair labour practices, which includes members'/workers’ right to form, join, and actively participate in the activities and programmes of a trade union of their choice, and associate collectively through trade unions. They state that conducting COTU-K elections without valid, properly elected affiliate delegates amounts to stripping ordinary union members of this participatory right at the grassroots level, since their votes for branch/national officials never had the chance to translate into COTU-level representation. RESPONSE The 5th Respondent and 1st to 4th Interested Parties 1. The 5th Respondent and 1st to 4th Interested Parties invoke the doctrine of exhaustion, challenging the jurisdiction of the Court to entertain the Petition on the premise that the Petitioners have failed to exhaust election dispute resolution mechanisms under the Labour Relations Act 2007 and the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions 2025. In support of this position, the 5th Respondent and 1st to 4th Interested Parties contend that the Petition is not anchored on any declared election results but instead seeks to challenge an ongoing electoral process, thereby rendering it premature, improperly constituted, and inconsistent with the governing legal regime. 2. The Petition is also opposed on the premise that Petitioners lack the requisite *locus standi* to institute and sustain the suit as Section 30 of the Labour Relations Act 2007 provides that disputes relating to the internal affairs and electoral processes of a trade union are reserved for members and/or officials thereof. Additionally, the 5th Respondent and 1st to 4th Interested Parties take issue with their joinder to the Petition, for the reason that the Petitioners have failed to disclose any specific acts, omissions, or breaches attributable to them or provide material particulars linking them to any alleged wrongdoing. They also contend that the Petition has been overtaken by events and is moot, as the impugned elections were lawfully conducted and concluded on 14th March 2026, and the duly elected officials already assumed office. According to them, the reliefs sought are therefore spent, academic, and incapable of enforcement 3. It is the 5th Respondent and 1st to 4th Interested party’s case that the Petition herein seeks to invite the Court to interfere with the internal autonomy and self-governance of trade unions, which is expressly protected under the Labour Relations Act and recognised in law, and which can only be interfered with upon clear proof of statutory or constitutional violation Such violations have not been demonstrated in the instant Petition. It is further averred that the conduct of trade union elections is governed strictly by the Labour Relations Act and the respective registered Union Constitutions, and not by administrative circulars or guidelines, such as the 3rd Respondent’s Circular dated 25th September 2025 which was purely administrative in character, issued solely for purposes of coordination, planning and administrative guidance. The Circular, according to the 5th and 1st to 4th Interested Parties did not amount to a statutory instrument or subsidiary legislation capable of conferring rights or imposing binding legal obligations, and does not have the force of law in order to override, amend or derogate from the express provisions of the Labour Relations Act or the registered constitutions of trade unions, which are the primary and governing legal instruments regulating trade union elections. 4. The 5th Respondent and 1st to 4th Interested Parties emphasize that the elections of 14th March 2026 were lawfully conducted in full compliance with the applicable statutory and constitutional provisions, including Section 35 of the Labour Relations Act which requires notification of the duly elected officials to the Registrar of Trade Unions within the prescribed timelines. The Registrar upon receiving the notification did raise any objection, complaint or reservation, therefore confirming both procedural and substantive compliance with the law, and conclusively negating any suggestion of irregularity, illegality or non-compliance in the electoral process. 5. The 5th Respondent and 1st to 4th Interested Parties point out that similarly, at no time prior to, during, or immediately after the conduct of the elections, was any complaint, dispute, objection or allegation of irregularity lodged before the Registrar of Trade Unions or any other competent statutory or dispute resolution body as provided under the Labour Relations Act, by the Petitioners, or any member, delegate or stakeholder of the 5th Respondent. 6. The Petitioners are faulted for failing to identify, particularize or prove any specific breach of the law, the Constitution of the 5th Respondent, or any provision of the Constitution of Kenya that would warrant the intervention of the Court. Their allegations are categorized as vague and unsubstantiated, and devoid of precision and evidentiary support. The 5th Respondent and 1st to 4th Interested Parties plead that this failure contravenes the well settled threshold for constitutional pleadings. 7. It is stated that the 2nd to 4th Interested Parties were at all material times fully aware of the electoral timelines, procedures and processes, actively participated in the electoral framework at their respective levels, and were neither excluded from, nor disadvantaged by the conduct of the elections in any manner whatsoever. The Petitioners claims of exclusion and prejudice suffered by the 2nd to 4th Interested Parties are dismissed as speculative, unfounded and devoid of any evidentiary or factual foundation, and are directly contradicted by the Interested Parties’ sworn evidence on record. 8. On the prayer seeking to restrain the registration, gazettement and/or assumption of office by the duly elected officials, the 5th Respondent states that the same has been wholly overtaken by events, and no prayer for non-gazettement can be issued as there exists no statutory or regulatory requirement under the Labour Relations Act or any other applicable legal framework mandating the gazettement of trade union elections or officials. 3rd Respondent’s case 1. The 3rd Respondent contends, in the same vein as the 5th Respondent and 1st to 4th Interested Parties, that while they did indeed issue the Circular dated 25th September 2025 setting out timelines for trade union elections, the same was purely administrative, issued strictly for planning and coordination purposes, and does not have the force of law. As such, it cannot supersede the provisions of any registered trade union Constitution or the Labour Relations Act including Section 8 thereof, which exclusively govern the conduct and regulation of trade union elections. The Petitioners are accused of attempting to elevate non-binding administrative guidelines into mandatory statutory obligations, a position that the 3rd Respondent states is not only erroneous but also wholly unsustainable in law. The 3rd Respondent points out that the timelines or dates contained in the Circular dated 25th September 2025 are neither constitutionally nor statutorily recognized and cannot, in any conceivable legal framework, invalidate lawful elections. 2. It is the 3rd Respondent’s case that trade unions and federations are autonomous legal entities mandated to manage their internal affairs independently, and the Registrar and Court should not interfere beyond the clear provisions of the law. They further state that the threshold for invalidating trade union elections is high and strictly grounded in demonstrable breach of the law, namely the Labour Relations Act or the applicable union constitution. The petitioners have not demonstrated any such breach. 3. The 3rdRespondent confirms that the 5th Respondent complied with its legal obligation to notify the Registrar of duly elected officials through Form Q within fourteen (14) days of the elections by submitting a Form Q dated 14th March 2026, in accordance with Section 35 of the Labour Relations Act. The Registrar also received a report from the Commissioner for Labour dated 14th March 2026 which confirmed the outcome of the elections, and the report did not disclose any irregularities, complaints, or disputes whatsoever. Being fully satisfied with the process, documentation, and absence of lawful objections, the Registrar validly and lawfully registered the elected officials on 16th March 2026 and issued the requisite acknowledgement and extract. They therefore also agree that the prayers sought have been overtaken by events, and the same are therefore spent, moot, and incapable of being granted. 4. The 3rd Respondent similarly faults the Petitioners for failing to meet the well-established legal threshold for public interest litigation as articulated in the Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR and Trusted Society of Human Rights Alliance v Attorney General & 2 Others (2012) eKLR, cases. They state that the Petitioners have failed to demonstrate any violation, whether statutory, constitutional, or procedural, and their claims are therefore speculative, unsubstantiated, and legally untenable. They also deny that there is any wrongdoing, illegality, or procedural impropriety on the part of the 3rd Respondent, and insist that they acted strictly within their statutory mandate. DETERMINATION 1. Following directions by the court that it would determine the Petition through written submissions, the parties complied. Issues for determination 1. The Petitioner filed submissions, dated 16th April 2026 where she collectively identified the following issues for determination: * 1. Whether the Applicant has locus standi to institute these proceedings notwithstanding her non-membership status. 2. Whether the Applicant had a legitimate expectation to participate in the electoral process based on official circulars, statutory directives of the Registrar of Trade Unions, and representations made by the Respondents. 3. Whether the Respondents' alteration of election dates, unilateral amendment of the Union Constitution, imposition of punitive nomination fees, and formulation of electoral rules violated the Union Constitution, Election Rules, Registrar's directives, and constitutional standards of fairness, equality, and democracy. 4. Whether technical objections relating to affidavit serialization and marking of exhibits can override constitutional justice under Article 159 of the Constitution, the Mutunga Rules, and access to justice principles. 5. Whether the alteration of election dates interfered with the Petitioner's legitimate expectations. 6. Whether the Petitioner's right to fair administrative action was violated. 7. Whether the expungement of the Supporting Affidavit and its annexures renders the Petition incompetent and liable to be struck out. 8. Whether the Petition, standing alone, is competent under the Mutunga Rules. * + 1. Whether this Honourable Court ought to hear and determine the Petition on its merits and grant the reliefs sought. 2. Who should bear the costs of this Petition. 1. Conversely, in their submissions dated 8th June 2026, the Respondents identified the following issues for determination:- * 1. Whether the 1st Respondent's change of the date of national elections from 27th February 2026 to 16th February 2026 is unlawful, unconstitutional, and defeatist of the Petitioner's legitimate expectation. 2. Whether the constitutional requirement of payment of Kshs. 3,000,0000/= by aspirants contesting for the position of the 1st Respondent's General Secretary is unconstitutional, punitive, and discriminatory. 3. Whether, if the answer to (i) and (ii) above is in the negative, the Petitioner herein is nevertheless entitled to the reliefs sought in the instant petition. 2. The court discerned the issues for determination in the petition to be as follows- * 1. Whether the Applicant has locus standi to institute these proceedings notwithstanding her non-membership status and whether the court has jurisdiction in the matter. and if in the affirmative, to determine- 2. Whether the Applicant had a legitimate expectation to participate in the electoral process based on official circulars, statutory directives of the Registrar of Trade Unions, and representations made by the Respondents. 3. Whether the Respondents' alteration of election dates, unilateral amendment of the Union Constitution, imposition of punitive nomination fees, and formulation of electoral rules violated the Union Constitution, Election Rules, Registrar's directives, and constitutional standards of fairness, equality, and democracy.\ 4. whether petitioners are entitled to relief sought Whether the Applicant has locus standi to institute these proceedings notwithstanding her non-membership status and whether the court has jurisdiction in the matter. 1. The 1st Petitioner described himself as a Kenyan citizen coming in public interest, and the 2nd Petitioner was a non-governmental organisation focused on democracy. The 5th respondent opposed the petition on the premise that the Petitioners lack the requisite *locus standi* to institute and sustain the suit as Section 30 of the Labour Relations Act 2007 provides that disputes relating to the internal affairs and electoral processes of a trade union are reserved for members and/or officials thereof. 2. The petitioner submitted that- on the issue of jurisdiction, it is sufficient to state that the jurisdiction of the Employment and Labour Relations Court to hear and determine claims of constitutional violations arising from employment and labour relations matters is now well settled. This position was authoritatively affirmed by the Supreme Court in Kenya Tea Growers Association & 2 Others v. The National Social Security Fund Board of Trustees & 13 Others, SC Petition No. E004 of 2023, as consolidated with Petition No. E002 of 2023. 6. Section 34 (4) of the Labour Relations Act Cap. 233 provides that: Disputes arising from, or connected directly or indirectly to, elections held under this section may be referred to the Industrial Court. To properly situate the issue of jurisdiction, it is necessary for this Honourable Court to first appreciate who the Petitioners are, an inquiry that would equally address the question of locus standi, and the manner in which they have framed the issues presented for determination. The 1st Petitioner is a Kenyan citizen deeply committed to safeguarding the Constitution and upholding the democratic values upon which the Republic is founded, whereas the 2nd Petitioner is a Non-Governmental Organization with a mandate centered on the promotion of democracy, good governance, and sustainable development, in Kenya and the African continent through promoting inclusive, transparent, and accountable electoral processes. The Petitioners just like every other Kenyan is subject to Article 3 (1) of the Constitution has the duty to respect uphold and defend the constitution. Further to the foregoing, Article 22 (1) & (2) empowers the Petitioners to institute court proceedings in the public interest and in defense of the rights and fundamental freedoms in the Bill of Rights that are being threatened, violated or infringed. Rule 4 (2) (iii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules expressly provides that, in addition to a person acting in their own interest, court proceedings may be instituted by a person acting in the public interest. This matter is properly framed as a constitutional petition rather than an internal trade union electoral dispute. The impugned conduct is public and regulatory in character. The Registrar of Trade Unions issued a national circular on the 25th September 2025 on the 2026 trade union electoral cycle. That circular set mandatory timelines and pre-election conditions designed to protect the constitutional rights of members and to ensure a sequential, transparent and lawful electoral process across all registered unions and federations. Where a government agency/regulator prescribes minimum legal safeguards in pursuit of public law duties and constitutional values, the obligations created by such directions attract judicial scrutiny and enforcement under Articles 10, 22, 41 and 47 of the Constitution. The actions of COTU-K in purportedly conducting and declaring results of an umbrella federation election ahead of its affiliate members conducting and concluding their respective branch level and national level elections, plainly violates Articles 10, 27, 28, 35, 41 and 47 of the constitution from which a public interest litigation can legally be founded. This matter also raises clear and compelling issues of public interest. The regulation of trade union elections extends beyond the internal governance of any single trade union or federation center and speaks directly to the integrity of collective labour representation nationwide. There is a strong public interest in ensuring uniform, transparent, and lawful trade union elections, so as to safeguard democratic participation by union members, including marginalized branches and vulnerable groups, prevent the entrenchment of illegitimate authority, and uphold accountability within institutions that exercise significant influence over workers' rights and interests under Article 41 of the Constitution. The petition therefore raises pure questions of public law: whether a circular issued by a statutory body to protect members' labour rights under article 41 may be lawfully ignored 4 and whether the conduct complained of violates the Constitution. These issues properly fall within the constitutional jurisdiction of this Honourable Court and transcend a mere internal electoral dispute concerning who is elected to office, whether as Chairman or Secretary General of COTU. The 5th Respondent’s and 1-4 Interested Parties’ submissions 1. The 5th Respondent and the Interested Parties respectfully submit that the Petitioners lack the requisite locus standi to institute and maintain the present proceedings and on that ground alone the entire Petition and Application ought to be struck out. A careful examination of the Petition reveals that the 1st Petitioner merely describes himself as a citizen of the Republic of Kenya while the 2nd Petitioner describes itself as a non-governmental organization concerned with governance and democratic development. Significantly, neither Petitioner claims to be a member of the 5th Respondent, an affiliate union, a delegate entitled to participate in the impugned elections, a candidate in the elections or an office bearer within the governance structures of the 5th Respondent. The Petitioners are complete strangers to the affairs of the 5th Respondent. They have not demonstrated any direct legal relationship with the federation. They have not shown that they possess voting rights within the organization. They have not demonstrated that they participated in the electoral process. Most importantly, they have not shown that they suffered any injury arising from the elections complained of. The significance of this omission cannot be overstated. The elections which form the basis of these proceedings were internal elections conducted pursuant to the Constitution of the 5th Respondent and concerned only members, delegates, affiliate unions and stakeholders of the federation. A person who neither belongs to the organization nor participates in its governance structures cannot purport to challenge its internal electoral processes without demonstrating a direct and identifiable legal interest. While Articles 22 and 258 of the Constitution undoubtedly liberalized the rules governing standing, those provisions were never intended to transform every citizen into a universal supervisor of all institutions operating within the Republic. Public interest litigation is intended to facilitate access to justice where genuine constitutional grievances exist and not to encourage speculative or academic litigation by persons lacking any discernible stake in the dispute. The Court of Appeal in Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR cautioned against abuse of public interest litigation and emphasized that standing must be exercised responsibly and in furtherance of genuine constitutional objectives. In the present case, the Petitioners have not demonstrated any violation of rights belonging to them. They have not shown how the election of officials of the 5th Respondent affects them personally. They have not demonstrated any legal prejudice capable of grounding the reliefs sought. The inevitable conclusion is that the Petitioners lack locus standi and the proceedings are therefore incompetent. 2. On whether this Honourable Court has jurisdiction to entertain and determine the petition and application, they submit that jurisdiction is the foundation upon which all judicial authority rests. It is a threshold issue that must be determined before the Court can take any further step in a matter. The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR held that a Court's jurisdiction flows either from the Constitution or legislation and cannot be expanded through judicial craft or innovation. Likewise, in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 8 | P a g e 1, Nyarangi JA famously stated that jurisdiction is everything and without it a Court has no power to make one more step. The Petition before Court is fundamentally anchored on an alleged breach of a Circular issued by the Registrar of Trade Unions on 25th September 2025. The Petitioners contend that the elections conducted on 14th March 2026 were unlawful because they allegedly departed from timelines contained in the said Circular. With respect, the Petitioners' argument proceeds from a fundamental misunderstanding of the law. Administrative circulars are not statutes. They are not subsidiary legislation. They do not possess legislative force and cannot create legal obligations beyond those contemplated by statute. The Circular relied upon by the Petitioners was not enacted pursuant to delegated legislative authority. It was not gazetted as a statutory instrument. It was not subjected to parliamentary scrutiny. It therefore lacks the force of law necessary to amend, suspend or override the Labour Relations Act, 2007 or the Constitution of the 5th Respondent. The Attorney General has correctly submitted that trade union elections are governed by the Labour Relations Act and the constitutions of the respective unions and federations. The 5th Respondent wholly adopts that position. Accordingly, the alleged breach of an administrative circular cannot found a constitutional cause of action or invoke the jurisdiction of this Honourable Court. The Petition therefore fails at the jurisdictional threshold and ought to be struck out. The 3rd-4th respondent’s submissions 1. They submit that the conduct and regulation of Trade Unions elections in Kenya is exclusively governed by the Labour Relations Act and the respective registered constitutions of Trade Unions and Federations, and not by administrative circulars. This is to the effect that Trade Unions and Federations are autonomous legal entities mandated to manage their own internal affairs independently, and as such any attempt to invite the Registrar of Trade Unions to interfere beyond the provisions of of the Law is misguided and contrary to established legal principles. That the circular issued on 25th September 2025 cannot override statutory provisions or any registered union constitution since the same is not binding nor mandatory and cannot therefore be selectively be invoked to invalidate an otherwise lawful process. 2. Section 35 of the Labour Institutions Act dictates the Legal obligation of Trade union is limited to notifying the 3rd Respondent of duly elected officials through Form Q within 14 days of such election, a requirement which was dully met by the 5th Respondent vide a form Q dated 14 March 2026.This was further buttressed by a report from the Commissioner of Labour dated 14th March 2026.This Report did not identify any irregularities, complaints or disputes thus satisfying the 3rd Respondent to register the validly registered elected officials on 16th March, 2026 well before the instant Petition was filed. 3. That it is now settled law that courts cannot issue conservatory orders for events that have already taken place, as it was held in C.A. 366/1999Kenya National Examination Council vs. Republic, wherein it was held that prohibition cannot quash a decision already made; it can only prevent a contemplated decision. In the instant case, the decision had already been made by the Registration of the elected registered officials on 16th March,2026 as demonstrated in the Register excerpt Marked AK-3. This Honourable Court can only quash and not to bar events which have already taken place as prayed for by the Petitioners. 4. That the Petitioners herein have not demonstrated with precision how their fundamental rights and freedoms under the constitution have been violated or are threatened contrary to Art. 22 (1) of the Constitution of Kenya, 2010 and the holding in the Locus classicus decision in Mumo Matemu-v-Trusted Society of Human Rights Alliance (2013) Eklr and Annarita Karimi Njeru (1979) KLR 154,Honourable Court, Gazettement under the Labour Relations Act is envisaged only under two (2) circumstances namely:- 1. Change of Name or Constitution of Trade Union employer's organization as stipulated under Sec. 27 (4) of the Labour Relations Act. II. Registration as stipulated Section 17 (e) (ii) of the Labour Relations Act. iii. Gazettement for registered elected officials is not mandatory as contended herein by the Petitioners. Decision on Issue No.1 1. The court finds the crux of the dispute before the court is the holding and outcome oof the elections of COTU K. The petitioners impugn the election process on ground that the elections of the 5th respondent took place before its affiliate trade unions held branch elections to elect officials and delegates to vote in the COTU elections on the 30th August 2026. None of the petitioners was either a member of union or a union. The petition in essence sought for nullification of the election outcome. The foundation of the petition was the circular of the 3rd respondent dated 25th September 2025 which guided on the trade unions election cycle. The Petition is also opposed on the premise that Petitioners lack the requisite *locus standi* to institute and sustain the suit as Section 30 of the Labour Relations Act 2007 provides that disputes relating to the internal affairs and electoral processes of a trade union are reserved for members and/or officials thereof. The petitioners contend that this was not an election petition but constitutional petition. at same time the petitioner submitted -Section 34 (4) of the Labour Relations Act Cap. 233 provides that: Disputes arising from, or connected directly or indirectly to, elections held under this section may be referred to the Industrial Court. To properly situate the issue of jurisdiction, it is necessary for this Honourable Court to first appreciate who the Petitioners are, an inquiry that would equally address the question of locus standi, and the manner in which they have framed the issues presented for determination. The 1st Petitioner is a Kenyan citizen deeply committed to safeguarding the Constitution and upholding the democratic values upon which the Republic is founded, whereas the 2nd Petitioner is a Non-Governmental Organization with a mandate centered on the promotion of democracy, good governance, and sustainable development, in Kenya and the African continent through promoting inclusive, transparent, and accountable electoral processes. 9. The Petitioners just like every other Kenyan is subject to Article 3 (1) of the Constitution has the duty to respect uphold and defend the constitution. Further to the foregoing, Article 22 (1) & (2) empowers the Petitioners to institute court proceedings in the public interest and in defense of the rights and fundamental freedoms in the Bill of Rights that are being threatened, violated or infringed. Rule 4 (2) (iii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules expressly provides that, in addition to a person acting in their own interest, court proceedings may be instituted by a person acting in the public interest. This matter is properly framed as a constitutional petition rather than an internal trade union electoral dispute. The impugned conduct is public and regulatory in character. The Registrar of Trade Unions issued a national circular on the 25th September 2025 on the 2026 trade union electoral cycle. That circular set mandatory timelines and pre-election conditions designed to protect the constitutional rights of members and to ensure a sequential, transparent and lawful electoral process across all registered unions and federations. Where a government agency/regulator prescribes minimum legal safeguards in pursuit of public law duties and constitutional values, the obligations created by such directions attract judicial scrutiny and enforcement under Articles 10, 22, 41 and 47 of the Constitution. The actions of COTU-K in purportedly conducting and declaring results of an umbrella federation election ahead of its affiliate members conducting and concluding their respective branch level and national level elections, plainly violates Articles 10, 27, 28, 35, 41 and 47 of the constitution from which a public interest litigation can legally be founded. 2. The court agreed with the respondents and the interested parties that the circular had no statutory authority. It was an administrative document and thus its non-compliance cannot be basis to invoke the Constitution. The elections are conducted under the Labour Relations Act and the union constitutions. The Act gives a detailed framework on when and how elections are to be conducted, and dispute resolution. The 3rd Respondent confirms that the 5th Respondent complied with its legal obligation to notify the Registrar of duly elected officials through Form Q within fourteen (14) days of the elections by submitting a Form Q dated 14th March 2026, in accordance with Section 35 of the Labour Relations Act. The Registrar also received a report from the Commissioner for Labour(4th Respondent ) dated 14th March 2026 which confirmed the outcome of the elections, and the report did not disclose any irregularities, complaints, or disputes whatsoever. Being fully satisfied with the process, documentation, and absence of lawful objections, the Registrar validly and lawfully registered the elected officials on 16th March 2026 and issued the requisite acknowledgement and extract. They therefore also agree that the prayers sought have been overtaken by events, and the same are therefore spent, moot, and incapable of being granted. The Petition is also opposed on the premise that Petitioners lack the requisite *locus standi* to institute and sustain the suit as Section 30 of the Labour Relations Act 2007 provides that disputes relating to the internal affairs and electoral processes of a trade union are reserved for members and/or officials thereof. 3. Constitutionally, standing is no longer restrictive in constitutional petitions. Article 22(1) of the Constitution provides: "Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. "Article 258(1) of the Constitution provides: "Every person has the right to institute court proceedings claiming that this Constitution has been contravened, or is threatened with contravention. "The Supreme Court in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR held: "The Constitution of Kenya, 2010 has fundamentally transformed the concept of locus standi. The narrow traditional approach has been abandoned in favour of a broad and liberal approach that allows any person to approach the Court for the enforcement of the Constitution." Locus to file the petition is a non-issue, this being a constitutional petition. 4. The petitioners contend that this was not an election petition but a constitutional petition. section 34 provides the framework for elections as follows-‘**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.(5)The Registrar may issue directions to a trade union, employers’ organisation or federation to ensure that elections are conducted in accordance with this section and their respective constitutions.’ I find the circular by the 3rd respondent was under section 3. The petitioners invoked section 34(4), which states disputes on the elections may be referred to this court. 5. The court has in place a special procedure for determination of elections disputes being- THE EMPLOYMENT AND LABOUR RELATIONS COURT (TRADE UNION ELECTION DISPUTES) PROCEDURE AND PRACTICE DIRECTIONS published in THE KENYA GAZETTE 11th December, 2025 by the Chief Justice, Lady Justice Martha Koome. The rules provide as follwos-‘3. (1) These procedure and practice directions shall apply to petitions in respect of trade union elections including for both workers trade unions and employers’ associations duly registered under the Labour Relations Act. (2) A petition about a trade union election dispute is essentially for enforcement of the right to fair labour relations as provided in Article 41 and the other relevant provisions of the Bill of Rights in the Constitution and shall be instituted in accordance with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules as provided for in rule 10 of the Employment and Labour Relations Court (Procedure) Rules, 2024. Objective. 4. (1) The objective of these procedure and practice directions is to facilitate the just, expeditious, efficient and proportionate resolution of trade union election disputes. (2) A party to a petition or an advocate for the party shall assist the Court to further the objective of these practice directions and for that purpose, to participate in the processes of the court and to comply with the directions and orders of the court. (3) The Court shall determine a trade union dispute within one hundred and eighty days from the date of filing the election petition. Filing of election petition.-5. (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 the election of trade union officials or connected directly or indirectly to the elections may be referred to the Court.’ It is settled law where the law provides a clear procedure for dispute resolution, that procedure must be followed. The Court of Appeal in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) held that – ‘where there is a clear procedure for the redress of any particular grievance prescribed by the [*Constitution*](http://kenyalaw.org/kl/fileadmin/pdfdownloads/Constitution%20of%20Kenya%20%28Repealed%29.pdf) or an Act of Parliament, that procedure should be strictly followed.’ The petitioners' cause of action was a trade union election dispute disguised as a constitutional petition. The court did not find genuine claims of constitutional violations alleged against the respondents warranting the court's intervention under Articles 21 and 22 of the Constitution. The allegations may also have raised triable issues under an election petition, but this was a constitutional petition. 1. The court finds that the instant petition’s cause of action was under an election petition and not a constitutional petition. Thus, a case of constitutional avoidance. Whereas the Constitution under Article 258 allows a petition to be filed to allege violation of the Constitution in the public interest , trade unions are private clubs and only members, or persons within labour relations under the Labour Relations Act, may challenge the elections. The persons concerned with the instant elections had no grievance. I find that public interest litigation in this court cannot apply in matters of unions and federations' internal affairs, which are governed by their constituent constitutions and the Labour Relations Act. The instant petitioners were total strangers in the affairs of COTU Kenya. They never invoked the unions' constitutions, but only the Constitution of Kenya. The jurisdiction of the court is legislated pursuant to Article 162(1)a under the ELRC Act, Section 12,as follows: “12. Jurisdiction of the court 1.The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) and the provisions of this Act or any other written law which extends jurisdiction to the court relating to employment and labour relations including—a.disputes relating to or arising out of employment between an employer and an employee; b.disputes between an employer and a trade union; c.disputes between an employers' organisation and a trade unions organisation; d.disputes between trade unions; e.disputes between employer organizations; f.disputes between an employers' organisation and a trade union; g.disputes between a trade union and a member thereof; h.disputes between an employer's organisation or a federation and a member thereof; i.disputes concerning the registration and election of trade union officials; and j.disputes relating to the registration and enforcement of collective agreements.” 1. The current dispute concerns the registration and election of trade union officials; in this case, the Secretary General of COTU. The jurisdiction of this court must flow from employment relations. e.g employees who are members of the trade unions affiliated to COTU could institute the suit to challenge the election of the 1st interested party. A union and its officials and even candidates could also do the same. The Court upheld the decision of the Supreme Court of Kenya in [Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2026/50/eng%402026-07-03)where the court observed-‘ As we conclude on this aspect of the appeal, we restate our determination at the beginning of this judgment that the appeal has been brought as of right under Article 163(4)(a) of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution). The question being, whether the Court of Appeal properly interpreted and applied the relevant provisions of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) in arriving at the determination in the impugned judgment; namely whether the 1st to 7th respondents qualified as parties in terms of Section 12 of the ELRC Act, or the other written laws. Did they petition the High Court as employees/employers, trade union officials, employers’ federation officials, prospective employees, persons seeking employment, Cabinet Secretaries, applicants for employment, or persons aggrieved by a decision of the Director of Employment? No. Not in any of those capacities. 73.The 1st to 7th respondents described themselves in the High Court Petition as human rights activist, patriotic citizens of Kenya, law-abiding citizens, public- spirited individuals, and human rights defenders. They did not petition the High Court on behalf of any of the applicants to the positions of CEO or MD of the four parastatals. We reiterate, they were acting in the public interest. 74.At paragraphs 30, 31, and 32 of the Petition, they have specifically described the capacity in which they moved the High Court, thus:“B. Locus Standi30.That The Petitioners institute this Petition on the strength of Article 3(1) which provides that every person has an obligation to respect, uphold and defend [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) of Kenya 2010;31.That The Petitioner is a person envisaged under Article 22(1) of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) Article which states that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has - 20 been denied, violated or infringed, or is threatened.32.That The Petitioner bring this Petition on their pursuant to article 22(2)(c) which states that in addition to a person acting in their own interest, court proceedings under clause (I) may be instituted by person acting in the public interest”. (sic) 75.The 1st to 7th respondents’ petition points to alleged constitutional violations in respect of ethnic and gender considerations in the employment process, the marginalization and discrimination of women and people with disability. Nowhere do they plead on behalf of those who applied for the positions of CEOs or MDs and were not successful. The respondents moved the High Court for the vindication of the alleged breach of specified constitutional rights. The dispute as presented and prosecuted was clearly not one of private law between an employer and employee, but one implicating a contest in the public law regime between citizens and state organs concerning alleged constitutional violations. Those questions could and can only be properly raised for determination before the High Court under Article 165(3)(b) and (d) of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution).’ Applying the foregoing decision, I find the court has no jurisdiction over the petition. I find no employment relations between the petitioners and the respondents. The petitioners' case is in the public interest and does not involve any labour relations with the respondents. The court, applying the above Supreme Court decision, holds and determines that it has no jurisdiction to determine the petition. The petition is struck out. The petitioners came in public interest. Each party to bear its own costs. 1. The file is marked as closed. 2. 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- Okoth 5TH Respondent and 1-4th interested parties :