https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1899

Muli & another v Kenya Environmental Health and Public Health Practitioner's Union & 4 others (Petition E102 of 2026) [2026] KEELRC 1899 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1899 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E102 of 2026 JW Keli, J July 3, 2026 IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22,23, 24,27, 33, 36, 38, 41, 47, 48, 50, 51, 159, 165AND 258 OF THE CONSTITUTION OF KENYA, 2010- AND IN THE MATTER OF THE LABOUR RELATIONS AСT, 2007-ANDIN THE MATTER OF THE KENYA ENVIRONMENTAL HEALTH AND PUBLIC HEALTH PRACTITIONER'S UNION Between Raphael Muli 1st Petitioner Charles Mutai 2nd Petitioner and The Kenya Environmental Health And Public Health Practitioner's Union 1st Respondent Brown Ashira 2nd Respondent Registration Of Trade Unions 3rd Respondent and The Hon. Attorney General 1st Interested Party Gilbert Yegon 2nd Interested Party Ruling 1.The 1st Petitioner claimed he was the Secretary of the 1st Respondent's Nairobi County Branch, and that the 2nd Petitioner was a member of the Kenya Environmental Health and Public Health Practitioners Union, the 1st Respondent. The petitioners brought this Petition in their personal capacity as persons aggrieved by the actions of the Respondents. The Petition is brought pursuant to Article 258 (1) of the Constitution and Sections 4, 31, 33, 34 and 35 of the Labour Relations Act. The Petition challenged the constitutionality, legality and validity of the 1st Respondent's Notice scheduling National Elections on 1st April 2026, The constitutionality, legality and validity of the suspension, removal and alleged replacement of the 1st Petitioner as the Secretary of the 1st Respondent's Nairobi County Branch, and the legality of the 1st Respondent's Constitution. The petition sought for the following relief-1.A declaration that; -a.The 1st Respondent's Suspension Letter to the 1st Petitioner dated 13th December 2025 is illegal, null and void and is hereby set aside.b.The 1st Petitioner is the rightful holder of the office of the 1st Respondent's Nairobi County Branch Secretary.c.The 1st Respondents "Notice of By-Election for the Position of KEHPHPU Nairobi County Branch Secretary" dated 11th March 2026 is illegal, null and void.d.The 1st Respondent's Notice of General Elections Scheduled for 1st April 2026 is illegal, null and void.e.Article 12 (10) of the 1st Respondent's Constitution discriminates Union Members on the basis of economic status, and is therefore unconstitutional.f.The Independent Electoral Commission (IEC) established under Article 13 (D) of the Union Constitution lacks independence and constitutional legitimacy.g.The nomination threshold for the positions of National Secretary General, Deputy National Secretary General, and National Treasurer- stipulated at two-thirds (2/3) of the registered Union branches- is manifestly unreasonable. Consequently, Article 7 (c) (v), (d) (iv), and e (viii) of the 1st Respondent's Constitution is unlawful, null and void.h.The 1st Respondent's failure to initiate the process of ratifying the its Constitution at an Annual Delegates Conference and subsequently register it is unlawful. 2. An order;i.Consequent to prayer (d) above, the 1st Respondent's Constitution is unlawful, null and void, in its entirety.2.An Order;a)Of certiorari quashing the purported declaration of the 2nd Interested Party as the Secretary of the Nairobi County Branch of the 1st Respondent.b)Of certiorari quashing the election notice scheduling elections on 1st April 2026 and any subsequent date.c)Suspending the elections scheduled for 1st April 2026 or any subsequent date.d)Directing issuance of fresh election notices with adequate national circulation and reasonable statutory timelines.e)Directing that all future Union elections be conducted by the Independent Electoral and Boundaries Commission (IEBC), or any other impartial body as directed by this Court, in place of the Independent Electoral Commission (IEC).f)Compelling the 1st Respondent to initiate the process of ratifying its Constitution at an Annual Delegates Conference and subsequently register it, pursuant to Section 27(2) of the Labour Relations Act and Article 8 (1) (vii) of the Constitution.g)Compelling alignment of such Union Constitution with the Constitution of Kenya, 2010 and the Labour Relations Act, 2007.3)An award of Kshs. 3,000,000 as compensation to the 1st Petitioner.4)Any other relief that this Court shall deem appropriate.5)Costs of this Petition be provided for. 2.The 1st petitioner filed an affidavit dated 31st March 2026 in support of the petition and annexed various documents as evidence. 3.The 1st respondent entered appearance and filed Notice of Preliminary Objection dated 14th April 2026 seeking order for the petition to be struck out in limine with costs on the following grounds-a.Want of Jurisdiction Arising from Non-Exhaustion of Mandatory Dispute Resolution Mechanisms This Honourable Court lacks jurisdiction to entertain the Petition by reason of the Petitioners’ failure to exhaust mandatory dispute resolution mechanisms prescribed under Article 159(2)(c) of the Constitution, Section 9(2) of the Fair Administrative Action Act, sections 34 of the Labour Relations Act and the internal dispute resolution framework under the Union registered Constitution. The Petitioners admit having invoked processes before the Registrar of Trade Unions yet prematurely approached this Court. The statutory framework provides a complete mechanism which has not been exhausted.b.Violation of Doctrine of Constitutional Avoidance The Petition improperly invokes constitutional provisions while the dispute is fundamentally an internal trade union governance and electoral dispute governed by statute (specifically under section 12 of the Labour Relations Act) and internal mechanisms. The Petition is therefore improperly constitutionalised and amounts to an abuse of process.c.Failure to Disclose a Justiciable Constitutional Question The Petition is incompetent and fatally defective for failure to disclose a justiciable constitutional question, as the matters raised therein relate to internal trade union governance, electoral processes and administrative actions governed by statute and internal mechanisms, and do not meet the threshold under Articles 22 and 258 of the Constitution; The Petition fails to plead with precision any specific constitutional violation or nexus between the alleged acts and constitutional provisions, and instead raises evidentiary and factual disputes unsuitable for constitutional adjudication, thereby rendering the Petition improperly constitutionalised, non-justiciable and liable to be struck out in limine.d.Abuse of the Process of Court The Petition is an abuse of the process of this Honourable Court, as the Petitioners have invoked statutory dispute resolution mechanisms before the Registrar of Trade Unions while simultaneously instituting the present constitutional proceedings on the same subject matter, thereby engaging in forum shopping, multiplicity of proceedings, and deliberate circumvention of the mandatory statutory and internal dispute resolution framework governing trade union affairs; such conduct amounts to improper invocation of the Court’s jurisdiction and renders the Petition incompetent, vexatious and liable to be struck out ex debito justitiae. 4.The court directed the Notice of Preliminary Objection by the 1st respondent be canvassed first by way of written submissions. The parties complied. The 1st respondent’s submissions in support of the preliminary objection 5.The 1st Respondent raised and relies upon the Notice of Preliminary Objection dated 14th April 2026, seeking that the Petition dated 31st March 2026 be struck out in limine with costs for want of jurisdiction, for being incompetent, misconceived, improperly constitutionalised, and an abuse of the process of this Honourable Court. The objection raises pure points of law which, if upheld, dispose of the Petition without recourse to evidentiary trial. Those objections go to the root of the competence of the suit and to the lawful invocation of this Court’s jurisdiction. It is settled in law that jurisdiction flows from the Constitution or statute, and a court cannot enlarge it by craft or innovation; equally, as the Court of Appeal held in Lillian S, once jurisdiction is questioned the court must determine that issue at the earliest opportunity. The Petition dated 31st March 2026 was presented as a constitutional petition under a wide spectrum of constitutional provisions, but on its face it concerns the internal governance, electoral processes, and administrative actions of the 1st Respondent. The Notice of Preliminary Objection dated 14th April 2026 states precisely that the dispute is fundamentally one of internal trade union governance and elections under the Labour Relations Act and the union’s own constitutional framework. The Petition further records that the Petitioners had already moved, or at least initiated engagement with, the Registrar of Trade Unions by letter dated 14th March 2026, yet nonetheless proceeded to file this Petition before allowing the statutory process to run its course. Whether the Registrar had already rendered a formal decision, direction, or response, the critical point for present purposes is that the Petitioners themselves invoked the statutory route and then launched parallel constitutional proceedings on the same subject matter. 6.The Labour Relations Act expressly regulates the rights of union members to participate in elections, the conduct of elections of union officials, the Registrar’s supervisory role, and the ELRC’s appellate role over decisions of the Registrar. The Constitution also recognises the institutional autonomy of trade unions to determine their own administration, programmes, and activities, subject to the Constitution and statute. In those circumstances, the dispute disclosed by the pleadings is one for resolution within a specialised legal framework, not for first-instance constitutionalisation merely because constitutional articles have been cited in the heading of the Petition. It follows that the Petition, as filed, invited this Honourable Court to adjudicate an election and governance controversy within a trade union before the statutory and internal processes had been exhausted, and before the issues had been narrowed to a properly pleaded constitutional grievance, if any. That is the factual and legal matrix in which the present objection falls to be determined 7.The following are the issues for determination before this Honourable Court:A. Whether the Petition is incompetent for want of jurisdiction by reason of non-exhaustion of the mandatory statutory and internal dispute-resolution mechanisms?B. Whether the Petition offends the doctrine of constitutional avoidance and fails to disclose a justiciable constitutional question pleaded with reasonable precision?C. Whether the Petition is an abuse of the court process by reason of parallel invocation of statutory and constitutional processes, forum shopping, and multiplicity, and therefore liable to be struck out with costs? 8.Whether the Petition is incompetent for want of jurisdiction by reason of non-exhaustion of the mandatory statutory and internal dispute-resolution mechanisms- jurisdiction is not an emotive or discretionary matter; it is a question of legal authority. The Supreme Court has held that a court’s jurisdiction flows from the Constitution or legislation or both, and that a court cannot arrogate to itself jurisdiction that has not been conferred by law. The Court of Appeal in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) was equally emphatic that once jurisdiction is raised, the court must determine it forthwith. It follows that the Petition, as filed, invited this Honourable Court to adjudicate an election and governance controversy within a trade union before the statutory and internal processes had been exhausted. That is the factual and legal matrix in which the present objection falls to be determined. Section 9(2) of Fair Administrative Action Act provides in mandatory terms that the High Court or a Subordinate Court shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. The word ‘shall’ imports a command. It is not directory. The only exception is under Section 9(4) of Fair Administrative Action Act, which requires the applicant to demonstrate ‘exceptional circumstances’ and obtain the Court's leave. The Petitioners have not applied for such an exemption, nor have they demonstrated exceptional circumstances. The Labour Relations Act is ‘any other written law’ for the purposes of Section 9(2) of Fair Administrative Action Act. It provides a comprehensive framework for resolving trade union disputes, including election disputes. Sections 34(2)-(3) of Labour Relations Act establish internal mechanisms; Section 34(4) of Labour Relations Act provides for referral to the Industrial Court only after those mechanisms have been engaged. The Petitioners' reliance on Section 34(4) of Labour Relations Act is misplaced. The word ‘may’ in that provision does not confer an unfettered right to bypass internal processes. It is a permissive referral mechanism that 4 presupposes the prior operation of Sections 34(2)-(3) of Labour Relations Act. To read Section 34(4) as a licence to ignore Sections 34(2)-(3) would render those provisions nugatory. The Petitioners admit they wrote to the Union Secretariat and copied the Registrar on 14th March 2026. They did not wait for a response. They did not invoke any internal appeal mechanism. They did not seek mediation. They abandoned the process after a single letter and rushed to Court on 31st March 2026; This is not diligence; it is forum-shopping. The Court's decision in Capital Markets Authority v Ciano & another [2023] KECA 581 (KLR) reinforces this principle, indicating that the word 'shall' in the statute imposes a mandatory obligation on the parties to exhaust all available remedies before seeking judicial intervention. As was held by the Court. Similarly, in Leonard Otieno v Airtel Kenya Limited [2018] KEHC 9063 (KLR), the court emphasised that where there is a parallel remedy, constitutional relief should not be sought unless the circumstances of which the complaint is made include some feature which at least arguably indicates that the means of least redress otherwise available would not be adequate. The Petitioners have not shown any such feature. The Registrar of Trade Unions remains seized of supervisory powers under Section 34(5) of Labour Relations Act to direct compliance, and that engagement is ongoing. To rush to court while parallel processes are alive is the very definition of forum shopping. The Union’s registered Constitution contains mandatory internal dispute resolution mechanisms under Articles 13D (refer to Petitioners Supporting Affidavit marked as RM-11). The Petitioners are bound by these provisions by virtue of their membership. A party cannot be a member of an association, benefit from its constitution, and then disown that constitution when it requires him to exhaust internal remedies. It is therefore no answer for the Petitioners to say, in the abstract, that the ELRC has constitutional jurisdiction. That proposition is true but incomplete. The question is not whether this Court has labour and constitutional jurisdiction in the abstract; the question is whether that jurisdiction has been properly invoked in accordance with the specialised procedure prescribed by the Constitution and statute. On the material before the Court, it has not. The Petition was prematurely mounted in parallel with the statutory route, and is for that reason incompetent. 9.Whether the Petition offends the doctrine of constitutional avoidance and fails to disclose a justiciable constitutional question pleaded with reasonable precision? The Petition dated 31st March 2026 is improperly constitutionalised. The core dispute concerns internal governance and electoral processes within the 1st Respondent trade union, matters exhaustively regulated by the Labour Relations Act, particularly sections 34 and 35 thereof, and the union's registered constitution. The Petitioners invoke a broad catalogue of constitutional articles without establishing any disciplined nexus between specific conduct of the Union and any alleged constitutional violation. It is a settled principle of law that courts abhor the practice of parties converting every issue in dispute into a constitutional question and filing suits disguised as constitutional petitions when in fact they do not fall anywhere close to violation of constitutional rights. In Seme v Teachers Service Commission & another [2026] KEELRC 156 (KLR), the Court, quoting Mativo J (as he then was) in CNM v WMG [2018] eKLR, emphasised this principle. The present petition is a textbook example of such abuse. The doctrine of constitutional avoidance requires that where a dispute can be resolved on statutory or other non-constitutional grounds, the court should refrain from determining constitutional questions. The Labour Relations Act supplies a complete remedial framework for election disputes and internal governance matters. The Petitioners’ attempt to elevate every alleged irregularity to a constitutional petition inverts the constitutional order. Even if the Court were to overlook the exhaustion defect, the Petition fails on pleading. The Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) reaffirmed the principle in Anarita Karimi Njeru v Republic [1979] KEHC 30 that constitutional petitions must be pleaded with reasonable precision so that the court and respondents know the exact constitutional norm invoked, the impugned act or omission, and the manner of violation. The Petitioners invoke over twenty constitutional articles without linking any specific act of the Union to any specific constitutional violation. A bare recitation of constitutional provisions does not satisfy the Anarita test. On the test on Justiciability; the High Court in Jennifer Shamalla v Law Society of Kenya & 15 others [2017] KEHC 5885 (KLR) held that where a clear procedure for redress is prescribed by statute, that procedure should be strictly followed and resort to constitutional petition must be a remedy of last resort. It was held: “Courts will not normally consider a constitutional question unless the existence of a remedy is dependent on it…….It is an established practice that where a matter can be disposed of without recourse to the constitution, the constitution should not be involved at all’’ The Petitioners have not demonstrated any exceptional circumstance warranting departure from the statutory route. The petition in this matter merely makes sweeping allegations of election irregularity without demonstrating the nexus between specific acts and specific constitutional breaches. This is a fatal defect that renders the petition non-justiciable. In Oucho v Joseph Otieno Bee & 12 others [2022] KEHC 6 (KLR), the Court held that courts should not entertain constitutional petitions where the issues raised can safely be left to the dispute resolution mechanism established under statute, as the deepest norms of the Constitution dictate that constitutional adjudication should not be invoked where statutory remedies are adequate. 10.Whether the Petition is an abuse of the court process by reason of parallel invocation of statutory and constitutional processes, forum shopping, and multiplicity, and therefore liable to be struck out with costs? The 1st Respondent submitted that the Petition dated 31st March 2026 constitutes a flagrant abuse of the process of this Honourable Court. The Petitioners, having already invoked the statutory machinery before the Registrar of Trade Unions, proceeded to file these parallel constitutional proceedings on the identical subject matter. This conduct amounts to forum shopping, multiplicity of proceedings, and a deliberate circumvention of the specialised statutory framework governing trade union disputes. 30. The Petitioners admit, in their own pleadings and supporting affidavit, that they wrote a letter dated 14th March 2026 to the Union Secretariat, copied to the Registrar of Trade Unions, objecting to the electoral process. They did not invoke any internal appeal mechanism under the Union Constitution. They did not seek conciliation. They abandoned the statutory process after a single perfunctory letter and rushed to file this Petition on 31st March 2026. This conduct is the very definition of forum shopping. The Petition is furthermore vexatious and scandalous. It was filed by two Petitioners, yet the dispute centres on the personal grievance of the 1st Petitioner regarding his alleged ouster. The joinder of the 2nd Petitioner is a tactical device designed to clothe a personal grievance with the appearance of a constitutional crusade. The supporting affidavit is replete with apprehension, bare allegations, and misapprehension unsupported by cogent evidence. Such pleadings cannot sustain a constitutional petition. Most fundamentally, the final prayers sought are incapable of enforcement. The Petitioners invite this Honourable Court to direct the Independent Electoral and Boundaries Commission (IEBC) to conduct the Union’s elections in place of the Union’s own Independent Electoral Committee. Such a prayer flies in the face of the Union Constitution and the autonomy of trade unions recognised by the Constitution of Kenya and the Labour Relations Act. The Court cannot be asked to rewrite the registered Constitution of a trade union or to compel the IEBC to perform functions outside its statutory mandate. The elections the Petitioners sought to halt were in fact conducted on 1st April 2026. The Petitioners have since folded or compromised their application, rendering the entire process an exercise in futility and an abuse of the Court’s time. 33. In the premises, the 1st Respondent humbly submits that the Petition dated 31st March 2026 is an abuse of the process of this Honourable Court and ought to be struck out in limine with costs. The petitioners’ submissions 11.Issues for determinationa.Whether this Court has express, original and unlimited jurisdiction to entertain the Petitionb.Whether the doctrines of exhaustion, Constitutional avoidance and justiciability militate against the petition.c.Whether Article 159 (2) (c) of the Constitution of Kenya ousts the jurisdiction of this Court. 12.This court has express, original and unlimited jurisdiction to entertain the petition - It is trite law that a Court's Jurisdiction flows from the Constitution, legislation, or both. Without this, a court should down its tools. This Court is empowered to pick up its tools and entertain this Petition, with the power vested on it expressly by the following laws; Article 162 (2) (a) of the Constitution, under which this Court is established; Section 12 (i) of the Employment and Labour Relations Court Act, which vests jurisdiction over disputes "concerning the registration and election of trade union officials." Section 34 (4) of the Labour Relations Act which expressly states that; "Disputes arising from, or connected directly or indirectly to, 2 elections held under this section may be referred to the Industrial Court." Therefore, the only way this Court can be said to lack jurisdiction is on two grounds; If this Petition is not connected to Union Elections If this Court is not the 'Industrial Court' contemplated under the Labour Relations Act. I am running a few minutes late; my previous meeting is running over. Fortunately, it is not in dispute that the Petition herein regards the legality of the 1st Respondent's elections, and its election procedures. It is also not in contention that this Court is the 'Industrial Court' contemplated under the Labour Relations Act, as read together with the Employment and Labour Court Act. Consequently, this Petition falls within this Court's jurisdiction. This jurisdiction is not predicated upon the exhaustion of ADR, and this was affirmed by the Court in Kimani & another v Kenya National Union of Teachers & 3 others [2025] KEELRC 2891 (KLR). The Court also affirmed this Court's jurisdiction to determine election union petitions in the first instance. For this reason, we submit that this Court has original and unlimited jurisdiction to determine this Petition. 13.The doctrines of exhaustion, constitutional avoidance and justiciability do not militate against the petition - The Court in Institution of Surveyors of Kenya v National Social Security Fund& another (Petition E251 of 2025) КЕНС (Ruling) discussed these three interlinked doctrines together at length. The Court explained that the doctrine of exhaustion binds parties particularly where a contract or term of engagement provides so to first explore and exhaust the available alternative dispute resolution mechanism before resorting to courts-i.Before one can say the doctrine applies, he/she alleging must demonstrate the following; That a mechanism exists to resolve the dispute.ii.That the alternative mechanism is lawful, fair and contains sufficient safeguards for valid, objective and fair determination of a dispute.iii.That the alternative mechanism is expeditious, efficient, lawful, reasonable and procedurally fair (Article 47(1) of the Constitution)." The Respondents have not demonstrated the above requirements. They also failed to specify which provision of the Union's Constitution, or legislation, offers a mandatory ADR mechanism. This makes the Preliminary Objection bad in law for failing the test of specificity outlined in Anarita Karimi Njeru v Republic. Further, the doctrine of exhaustion only applies where there is a mandatory ADR mechanism which limits the original jurisdiction of this Court. We say so because, as explained by the Court of Appeal in Owners Motor Vessel Lilian S, jurisdiction can only be limited in express terms. In verbatim; "By jurisdiction is meant the authority which a court as to decide matters that are litigated...The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited." It follows that a party cannot be expected to exhaust a local remedy that is not provided for in law or by agreement. Our submission finds further support in the definition of the doctrine as offered by the Court of Appeal in Capital Markets Authority v Ciano & another [2023] KECA 581 (KLR) that; "Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed..." A reading of the entire Union's Constitution shows that there is no mandatory ADR mechanism, and that is why the Respondents have not pointed this Court to any such provision. For avoidance of doubt, Article 12 of the Constitution provides for elections but does not prescribe mandatory ADR procedures for election disputes. Further, Article 19 only advices parties to try resolve disputes amicably before approaching Court. In any case, the Petitioner tried to solve this matter amicably by engaging the Union's Secretariat via letter dated 14th March 2026 (annexed to the Petition as RM-5). When the Secretariat became unresponsive, the Petitioners had no option but to approach this Court, as is their right under Section 34 (4) of the Labour Relations Act. It is also true that the Registrar of Trade Unions received a copy of the said Petitioner's Letter. However, contrary to the claims made in the Preliminary Objection, this should not be misconstrued to mean that the Registrar was engaged as part of mandatory ADR. There is no requirement to engage the Registrar in election disputes under the Labour Relations Act or the Union's Constitution. The engagement was undertaken voluntarily and in good faith, as an effort to resolve the dispute concerning the 1st Petitioner's ouster and replacement. 14.The doctrine of Constitutional avoidance and justiciability - The Court in Institution of Surveyors of Kenya v NSSF explained that; "Closely linked to the doctrine of exhaustion is the doctrine of Constitutional avoidance. Constitutional avoidance is defined as a preference for resolving a case through any means other than addressing a constitutional issue. This principle is associated with the doctrine of justiciability, which sets limits on the constitutional arguments courts can consider. Justiciability primarily involves three principles: standing, ripeness, and mootness." The Supreme Court in EWW (Suing thro' his father and next friend JMG) v Board of Management Kagumo High School & 2 others [2026] explained that, when proving justiciability, it is enough to show that the case is "...based on a real and substantial controversy which unequivocally calls for adjudication of the rights asserted.!" We submit that the Petition herein raises justiciable questions that can only be determined via a Constitutional Petition and hence it is not ousted by the principle of Constitutional Avoidance. This is because, first, the Petition raises questions that require interpretation of the Constitution. These include questions on whether the Union's electoral body lacks independence and whether its electoral processes are free and fair as per Articles 73 (2) (a) and (b), 81 (e), and 27 of the Constitution. (See Paragraphs 46 and 49 of Petition, respectively.) These are justiciable questions that can only be determined through a Constitutional Petition. Second, the remedies sought can only be granted or denied by this Court. These include a declaration of unconstitutionality, as per prayer 1 (e) (i) and (f) of the Petition, and a declaration of illegality as per prayers 1 (d), (g), (h), and (i). The Petition also sought orders stopping elections, and an order compelling the Union to align its Constitution with the 2010 Constitution of Kenya. Third, the 2nd and 3rd Petition approached this Court in the public interest, and in defence of the Constitution, pursuant to Article 258 (1). The said Petitioners had no locus standi to approach this Court through a claim, judicial review, a plaint, or other means. A Constitutional Petition was the only legal way to do so. For these reasons, we humbly submit that the Petition raises justiciable questions that can only be determined through a Constitutional Petition, and thus the doctrine of constitutional avoidance does not apply. Exemptions to the doctrine of exhaustion. In line with our above submission, and without prejudice, we add that if the doctrine of exhaustion is applicable, it is exempt because the Petition raises justiciable constitutional questions. As explained by the Court in Capital Markets Authority v Ciano & another [2023] KЕСА 581 (KLR), the doctrine of exhaustion will be exempt where a dispute calls for Constitutional interpretation. Further, the Registrar of Trade Unions or other persons within the Union, are not empowered to hear and determine such justiciable constitutional questions, nor can they grant the orders being sought. The Supreme Court in SC Petition No.16 of 2019, NGOS Co-ordination Board vs. Eric Gitari & 5 Others was unequivocal that the courts may exempt a party from the obligation of exhausting any remedy if the court considers such exemption to be in the interest of justice. Based on the circumstances described above, justice could only be obtained by approaching this Court. For all the above reasons, we submit that the doctrines of exhaustion and Constitutional avoidance are not applicable. 15.Further, the Petition raises justiciable questions. Article 159 (2) (C) of the Constitution does not oust the jurisdiction of this court. Article 159 (2) (c) of the Constitution encourages the use of ADR before parties approach the court. However, it does not oust the jurisdiction of this Court in determining matters under Article 162 (2) (a) of the Constitution, and legislations enacted thereto, including the Labour Relations Act and the Employment and Labour Relations Court Act. It would be improper for litigators to pit constitutional provisions against one another. In line with Article 259 (1) (a) of the Constitution, the Court in Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012] eKLR guided that "The Constitution must be read as an integrated whole, each provision sustaining the other and not destroying the other." We further reiterate the guidance by the Court in Institution of Surveyors of Kenya v NSSF that a party seeking refuge in the doctrine of exhaustion must demonstrate that the existence of compulsory, viable ADR mechanisms. It is not enough to claim that ADR is desirable. Nevertheless, the Petitioner attempted to amicably engage the 1st Respondent's officers, but they ignored him. They are the reason ADR attempts failed, leaving the Petitioners no choice but to approach this Court. For this reason, we emphasize that this Court has the express original, and unlimited jurisdiction to entertain this Petition. Decision 16.The court’s jurisdiction is drawn from Article 162(1)(a) of the Constitution: ‘(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—(a)employment and labour relations;’ and as legislated in Section 12 of the Employment ad Labour Relations Court Act which provides 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 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.’(emphasis given)Before the court is a petition challenging the constitutionality, legality and validity of the 1st Respondent's Notice scheduling National Elections on 1st April 2026, The constitutionality, legality and validity of the suspension, removal and alleged replacement of the 1st Petitioner as the Secretary of the 1st Respondent's Nairobi County Branch, and the legality of the 1st Respondent's Constitution. I find the court has jurisdiction on the instant dispute under section 12(1)(i) above.The next question for the court is whether the petition offends the doctrine of exhaustion 17.The only basis of the court to hold in abeyance exercise of its jurisdiction is when there exists an alternative clear mechanism for resolution of the dispute. It was held in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) that – ‘In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.’ What is that alternative mechanism? I am persuaded by the High Court decision in Institution of Surveyors of Kenya v National Social Security Fund& another (Petition E251 of 2025) КЕНС (Ruling) where the court set out a criteria to determine whether to upheld the doctrine of exhaustion as follows-i.Before one can say the doctrine applies, he/she alleging must demonstrate the following; That a mechanism exists to resolve the dispute.ii.That the alternative mechanism is lawful, fair and contains sufficient safeguards for valid, objective and fair determination of a dispute.iii.That the alternative mechanism is expeditious, efficient, lawful, reasonable and procedurally fair (Article 47(1) of the Constitution)." The Notice of Preliminary Objection stated-‘This Honourable Court lacks jurisdiction to entertain the Petition by reason of the Petitioners’ failure to exhaust mandatory dispute resolution mechanisms prescribed under Article 159(2)(c) of the Constitution, Section 9(2) of the Fair Administrative Action Act, sections 34 of the Labour Relations Act and the internal dispute resolution framework under the Union registered Constitution. The Petitioners admit having invoked processes before the Registrar of Trade Unions yet prematurely approached this Court. The statutory framework provides a complete mechanism which has not been exhausted.’ Section 34 Labour Relations Act provides elections of trade union officials 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.’ (emphasis given) I find no ambiguity in the law that the forum for the instant dispute is the industrial court, which is the former name of this court. It is painful that, over 14 years of the existence of the court, the legislature has not found time to amend the provision to read the Employment and Labour Relations Court. I find the law has provided for the forum under section 34 of the Labour Relations Act, as this court. The Notice of preliminary objection being a point of law is limited to that. 18.I find the Notice of preliminary objection has no basis and is disallowed with costs to the petitioner in the cause. The parties ought to take directions on the disposal of the petition. 19.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 3RD DAY OF JULY, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: Otienopetitioner -SOMBA1st Respondent – Kirui