https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1681

Mweresa & 6 others v Kenya Medical Practitioners, Pharmacists, and Dentists Union & 13 others (Petition E110 of 2026) [2026] KEELRC 1681 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1681 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E110 of 2026 M Mbarũ, J June 19, 2026 Between Dr. Clarence Eboso Mweresa 1st Petitioner Dr. Deogracious Maero 2nd Petitioner Dr. Wendy Kimbui 3rd Petitioner Dr. Mlindi Chao 4th Petitioner Dr. Hassan Mkuche 5th Petitioner Dr. James Mweu 6th Petitioner Dr. Zeituni Mulaa 7th Petitioner and Kenya Medical Practitioners, Pharmacists, and Dentists Union 1st Respondent Dr. Mounde Mokaya 2nd Respondent Dr. Oscar Nyamunyamu 3rd Respondent Dr. Pauline Kiprop 4th Respondent Dr. Davis Ombui [Sued as members of the Independent Electoral Committee of the KMPDU] 5th Respondent D-Time Limited 6th Respondent and Dr. Abidan Muchuma Mwachi 1st Interested Party Dr. David Kahura Mundia 2nd Interested Party Dr. Davji Ouma Atellah 3rd Interested Party Dr. Dennis Muskellah Mbegah 4th Interested Party Dr. Mercy Nabwire 5th Interested Party Dr. Renoh Achieng Omoro 6th Interested Party Commisisoner Of Labour 7th Interested Party Registrar Of Trade Unions 8th Interested Party Ruling 1.The ruling herein relates to Notice of Preliminary Objections dated 9 April 2026 by the 1st respondent, Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU) on the grounds:1.The petition is statute-barred and incurably and fatally defective for having been filed outside the mandatory seven-day period prescribed under Rule 3 of the Trade Unions Elections (Election Petition) Rules.2.While the petitioners filed the matter on the 9 April 2026 at 1916 hours, such filing is legally deemed to have occurred on the 10 April 2026 by operations of Order 50 Rule 2 and Order 50 Rule 9(3) of the Civil Procedure Rules as read with Section 27 of the Employment and Labour Relations Court Act and the Employment and Labour Relations Court of Kenya Service Delivery Charter.3.The timeframe for challenging trade union election results is a strict statutory mandate that goes to the very jurisdiction of this court, and any departure therefrom cannot be cured; the Trade Union Elections (Election Petitions) Rules make no provision for extension of the seven-day timeline.4.Consequently, this court is stripped of the jurisdiction to entertain, hear or order to determine an election petition filed outside the strict temporal limits set by the Trade Unions Elections (Elections Petition) Rules. 2.The 1st respondent filed the Affidavit of Dr Davji Bhimji Atellah, and, in response to the objections, the 1st respondent submitted that, by virtue of Rule 3 of the Trade Union Elections (Election Petition) Rules (the Union Elections Rules), the petitioners filed the petition on 9 April 2026 outside the prescribed time. Under Order 50, Rules 2 and 9 of the Civil Procedure Rules, time is calculated for the court to consist of 6 days after the appointed event. Thus, under Rule 3 of the Trade Union Elections Rules, a petition challenging the elections should be lodged 7 days after the elections. These provisions are mandatory. 3.The 1st respondent conducted elections and was declared on 2 April 2026, upon which, under Rule 3 of the Trade Unions Elections Rules, a challenge thereof should have been filed before the close of business at 5 pm on 9 April 2026, but the petitioners filed the petition on 9 April 2026 at 1916 hours. Under Rule 3 of the Trade Union Elections Rules and Order 50, Rules 2 and 9, the time for filing such a petition accrued to the next day for the court, which falls outside the stipulated time period for filing such a petition. The petition is thus time-barred and cannot be cured as a technicality under Article 159 of the Constitution. 4.Office hours are defined under the Trade Union Elections Rules and Order 50 Rule 2 and 9 of the Civil Procedure Rules to allow for the orderly performance of court duties and to bring certainty to litigation. In Nicholas Kiptoo Arp Korir Salat v IEBC & others [2014] KESC, the Supreme Court of Kenya held that the timelines in election matters are sanctified to ensure certainty and finality in the electoral process. 5.The 2nd to 5th respondents supported the objections and that the petitioner was filed out of time and should be struck out.The interested parties supported the objections. 6.The 1st petitioner, acting in person, opposed the objections and submitted that they are purely on time tabulation and fail to meet the threshold of a proper point of law, as held in Mukisa Biscuit Manufacturers Limited v Westend Distributors Limited [1969] EA. Preliminary objections should be on pure points of law. The objections by the 1st respondent require a call of evidence, and their authenticity must be analysed to establish when the election results were declared. In Oraro v Mbeaj & John Masakali & Speaker Bungoma County & 4 others [2015] eKLR, the court held that an objection must raise pure questions of law, not facts. 7.Under Rule 3 of the Trade Union Elections Rules, a petition to question th validity of an election under the Act should be filed within 7 days after the date of the declaration of the election results. The objections made do not disclose the time at which the elections were declared, thereby preventing computation thereof. The only relevant date and time is 9 April 2026, when the petition was filed at 7.13.52pm. 8.The 1st petitioner submitted that the election results were declared on 7 April 2026, not on 9 April 2026, as alleged. The events on 2 April 2026, from 6 am to 11.45 pm. The start and close of elections are thus not relevant to the petition and Rule 3. 9.A petition filed out of time cannot dispose of the suit completely. The court is still required to hear the petition on the merits. Section 59 of the Interpretation & General Provisions Act allows for the construction of time in a manner that accords justice to the parties. Therefore, section 95 of the Civil Procedure Act allows for the enlargement of time for a party to file suit. Order 50 of the Civil Procedure Rules on enlargement of time gives the court power to extend time to allow a party to urge its case. 10.There is a statutory cure for any pleadings filed out of time. The court has the power to enlarge time. The court should evaluate the reasons for the lapse of time and exercise its discretion, as held in County Executive of Kisumu v County Government of Kisumu & 5 others [2017] eKLR. 11.The 2nd to 7th petitioners submitted that these are not proper objections as they are not based on pure points of law as held in Mukisa Biscuit Manufacturers Limited v Westend Distributors Limited [1969] EA. Rule 3 of the Trade Union Elections Rules allows 7 days within which to file a petition to challenge the elections of a trade union. The petitioners filed the petition in time. 12.The elections were conducted on 2 April 2026. Without conducting a factual analysis and call for evidence, it is not possible to ascertain when the results were declared. The date and time of filing the petition are matters of evidence. In Avtar Singh Bhamra & another v Oriental Commercial Bank, Kisumu HCCC No. 53 of 2004, the court held that preliminary objections must stem from the pleadings filed and do not require a call of evidence. The cited Rule 3 of the Trade Union Election Rules does not specify the time within which to file a petition, nor does it state the number of days within which such action should be taken. 13.Order 50 Rule 3 of the Civil Procedure Rules, section 27 of the Employment and Labour Relations Court Act, and the ELRC Service Charter cannot be used to interpret the timelines within which to file suit before the court. 14.Section 27 of the Employment and Labour Relations Court Act empowers the Chief Justice to develop the ELRC Service Charter, which sets out the timelines for the court's operations. None requires that documents filed after 5 pm are not proper records for court consideration. Order 50 rule 3 of the Civil Procedure Rules do not apply to the court as held in Benedict Ojou Juma & 10 Others v A. J. Pareira & Sons Limited [2016] eKLR. The court operates under its own Rules of procedure, unlike the High Court, which is governed by the Civil Procedure Act and the Rules thereto. Thus, relying on Order 50 is misplaced. The objections should be dismissed. Determination 15.Indeed, as submitted by the parties, preliminary objections are qualified, and the attendant principles can be discerned from various authorities, including Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR where the court held:“… a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court must be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record." 16.In Independent Electoral and Boundaries Commission v Jane Cheperenger and 2 others [2015] eKLR, the court emphasized that:“Preliminary Objection procedure or in limine determination of disputed facts where facts are capable of quick resolution and may be established by consideration of the materials before the Court without calling for further evidence." 17.In this case, the 1st respondent's objections are premised on Rule 3 of the Trade Unions Elections (Election Petition) Rules, which directs that:“A petition to question the validity of an election under the Act shall be filed within seven days after the date of the declaration of the results of the election." 18.The objections are also premised on the provisions of Order 50 Rule 2 and Order 50 Rule 9(3) of the Civil Procedure Rules as read with Section 27 of the Employment and Labour Relations Court Act and the Employment and Labour Relations Court of Kenya Service Delivery Charter. 19.The basis of Rule 3 of the Trade Union Election Rules is the Act, the Employment and Labour Relations Court Act, as defined under the Rules. The foundation thereof is the law under which these Rules take their basis. The Rules do not stand on their own. Their objectives are to ensure fair labour relations pursuant to Article 41 of the Constitution, which is now set out in the Labour Relations Act. In Bichang’a & 2 others v Kenya National Union of Teachers (KNUT) & 4 others [2026] KEELRC 135 (KLR), the court held that the Rules' main objectives are to facilitate the just, expeditious, efficient and proportionate resolution of trade union election disputes. 20.The respondents and interested parties support the objections that the petition is filed outside the timelines required under Rule 3 of the Trade Union Elections Rules. 21.The petitioners admit that the elections held for the 1st respondent were on 2 April 2026, and the petition was filed after 5 pm, but the court is not governed under the provisions of Order 50, and where there are time limitations, Article 159(2) (d) can cure such a technical lapse. Indeed, the petitioners have urged the court to exercise its discretion and extend the time within which the petition should be deemed duly filed. 22.However, the petitioners' assertions are problematic on several fronts. 23.To begin with, the objections by the 1st respondent are based on Rule 3 of the Trade Union Elections Rules, which is founded on law. The rules as submitted by the parties are couched in mandatory terms. Indeed, the 2nd to 7th petitioners have quoted and highlighted the provisions verbatim. 24.There is no application seeking an extension of time. None exists by any petitioner. 25.Timelines set by law and the rules thereto are not at the court's discretion. Any lapse in meeting mandatory timelines cannot be cured under Article 159 of the Constitution. 26.In Judicial Service Commission v Wasamu [2026] KECA 915 (KLR), the court held that the provisions of Article 159 of the Constitution, the overriding principle, are not a panacea for all ills and in every situation, and that a proper basis must be laid before the Court can invoke the same in favour of a party. The Supreme Court of Kenya in Adam v Jiir & 3 others [2023] KESC 101 (KLR) aptly captures the matter where it held that: 27.Indeed, this court has had occasion to remind litigants that article 159(2) (d) of the Constitution is not a panacea for all procedural shortfalls. All that the courts are obliged to do is to be guided by the principle that ‘justice shall be administered without undue regard to technicalities.’ It is plain to us that article 159 (2) (d) is applicable on a case-by-case basis, Raila Odinga and 5 others v IEBC and 3 others; Petition No 5 of 2013, [2013] eKLR. 28.Additionally, the Civil Procedure Act and the Rules thereto apply to the court where the Employment and Labour Relations Court (Procedure) Rules do not directly address a matter. The Civil Procedure Act and its rules are not removed from application before the court, as the petitioners assert. Indeed, the provision thereof plays a big role in the court, including the execution process. 29.Where Rule 3 of the Trade Union Elections Rules fails to tabulate the timelines for filing a petition upon declaration of elections, this is adequately addressed under Order 50 Rule 2 and Rule 9(3) of the Civil Procedure Rules. The provisions thereof must be read with Section 27 of the Employment and Labour Relations Court Act, which provides the necessary mandate to formulate the rules and operationalise the functions of the court, as set out in the Employment and Labour Relations Court of Kenya Service Delivery Charter. To view the Civil Procedure Act and its rules as a separate and distinct part from the court is to fail to appreciate the importance of these tools as necessary and available in access to justice. Where the Court Rules are not sufficient, the Civil Procedure Act apply mutatis mutandis to the circumstances of the case. 30.By their nature, all elections are regulated in one way or another. Election petitions at the national, parliamentary, and county levels are all regulated by law. The Trade Union Election Rules have been applied, enabling the orderly conduct of trade union elections nationwide. The purpose of order and civility is evident from the petitioners' appreciation that the 1st respondent conducted its elections on 2 April 2026 and declared the results. 31.Filing the instant petition past the allowed timelines as regulated under Rule 3 of the Trade Union Elections Rules, read together with Order 50 Rule 2 and Rule 9(3) of the Civil Procedure Rules, is to fail to adhere to the mandatory provisions of the subject Rule. That cannot be cured by the court's discretion, which, in any case, has not been invoked. 32.The substantive petition seeks to challenge the constitution of the 1st respondent’s Independent Electoral Committee in conducting the union elections, which have since been declared and actioned by the 8th interested party. Pursuant to such action, the petitioners are not without recourse. 33.Accordingly, the objections by the 1st respondent are well-founded. The petition is filed out of time and is hereby struck out. Costs to the respondents and 3rd interested party. DELIVERED IN OPEN COURT AT NAIROBI, THIS 19TH DAY OF JUNE 2026M. MBARŨJUDGEIn the presence of:Court Assistants: Nelson Kemboi and Catherine Makau……………………………………………… and………………….…………………………...