https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1886

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **PETITION NO. E260 OF 2025** **JOAH OKEO 1ST PETITIONER** **MARTIN ONYANGO OCHIENG 2ND PETITIONER** **PATRICK ONDUKO ONYANCHA 3RD PETITIONER** **MOSES GICHU MWAURA 4TH PETITIONER** *VERSUS* **COUNTY GOVERNMENT WORKERS' UNION (K 1ST RESPONDENT** **ROBA DUBA 2ND RESPONDENT** **AND** **REGISTRAR OF TRADE UNIONS 1ST INTERESTED PARTY** **CENTRAL ORGANISATION OF** **TRADE UNIONS (COTU) 2ND INTERESTED PARTY** **JUDGMENT** The petitioners are members of the County Government Workers Union (K), the 1st respondent. The 1st respondent is a registered trade union. The 2nd respondent is the secretary general of the 1st respondent. The interested parties are offices registered under the Labour Relations Act (LRA). The petition is that the respondents acted irrationally and unlawfully by scheduling the union elections on a date that excludes members who observe Saturday as a sacred day of worship. This action is contrary to constitutional rights and statutory obligations and was undertaken without lawful justification, thus violating Article 24 of the Constitution. The petition is that on 20 November 2025, the respondents issued a notice scheduling branch elections for Saturday, 17 January 2026. The day coincides with a religious day of worship for a segment of the respondents, is acknowledged in the constitution as such, and should be set aside for the petitioners. A significant number of the respondents, including the petitioners, belong to a faith that strictly observes Saturday as a day of worship and rest. On such a day, activities such as elections are prohibited, and the respondents are fully aware of this. A minority exists within the respondent's membership, and its activities should be adjusted to accommodate religious considerations. The petition alleges violations of Article 27 on equality and non-discrimination, Article 32 on freedom of conscience, religion and belief, and Articles 38 and 41 of the Constitution on political participation and fair labour practices, respectively. The petitioners are seeking the following orders: 1. A declaration that the Respondent's decision to hold the Respondent's National Elections on 17 January 2026 is unconstitutional, discriminatory and a violation of Articles 2, 24, 27, 32, 38, 41, and 47 of the Constitution of Kenya. 2. A declaration that the *de minimis* rule does not apply to violations of constitutional or labour rights. 3. A declaration that the scheduling of the Union on a day wholly with a known religious Sabbath without meaningful accommodation is unconstitutional. 4. A declaration that the Union instruments and decisions are subordinate to the Constitution. 5. Structural relief directing the first Respondent to adopt and publish guidelines for religious accommodation in union electoral processes. 6. General damages for violation of constitutional rights. 7. Costs of the Petition. 8. Any other relief the court may deem fit. The petition is supported by the affidavit of the 1st petitioner, Joash Okeo, who avers that as a member of the 1st respondent union, there was a notice dated 13 November 2025 calling for the 1st respondent branch elections on 17 January 2026. On this Saturday, he observed that several members of the 1st respondent, including himself, were working. Conducting an election on a Saturday is not allowed as part of his religious practice. On Saturday, as a sacred day of worship, he is not allowed to participate in secular activities such as union elections. Okeo avers that the elections will be held at his place of work, which poses a difficulty for him and other members who will be working on that date and will therefore be unable to be at their workstations. This violates articles 27, 32, 38, and 41 of the Constitution; hence, such elections should be stopped, and the respondents should be directed to schedule a date that falls on a day other than Saturday. In reply, the respondents filed the Replying Affidavit of Roba Sharu Duba, the General Secretary of the 1st respondent, who avers that elections for branches were declared on 17 January 2026. The Registrar of Trade Unions directs trade union elections through circulars. Once issued, the Central Administration Board (CAB) sets the election dates. Under articles 26 and 48 of the 1st respondent's constitution, the CAB is mandated to organise, manage, and oversee elections. Hence, the decision to set 17 January 2026 as the branch election date was not irrational. The setting of the Saturday for elections was strategic for the CAB, per Article 26.6 of the union constitution, to ensure maximum participation, operational continuity, and alignment with the established county work culture. In a letter dated 25 September 2025, the RTU notified all trade unions to hold elections for branch and national offices. The 1st respondent convened to address the RTU circular, and CBA confirmed the election schedule in accordance with the union constitution. The election dates were therefore scheduled upon consultations through the various organs of the 1st respondent. Notices were issued to the members, and the respondents have acted within their constitutional mandate to ensure that every member was informed in advance of the election date so they could plan and organise to attend. The scheduling and conducting of the 1st respondent branch election on 17 January 2026, being on a Saturday, does not violate the law, the constitution, or the union constitution. The petitioners’ assertion of discriminatory treatment is incorrect, as the 1st respondent has complied with the Constitution. The right and freedom to worship are protected under Article 32, and the 1st respondent does not compel any member to contravene their faith. While participation is a right, scheduling an event on a particular day of the week does not, *prima facie*, violate that right. Roba avers that, under the *de minimis* rule, the petitioners constitute a negligible fraction of the membership, specifically 15 out of 90,000 members of the Nairobi branch. The demands made are not representative of the broader democratic will of the membership. There will be no prejudice visited upon the petitioners, since the respondent ensured reasonable accommodation and a readiness to ensure that any member of the Adventist community, including the petitioners, was afforded priority on Election Day to cast their vote and then proceed to their religious observance. The 1st respondent wrote to the petitioners on 14 January 2026, informing the petitioners of these measures to ensure they were reasonably accommodated. In this regard, section 34(1) of the LRA allows the 1st respondent to conduct branch and national elections in accordance with the constitution. Upon deliveries through the organs of the union, including the DAB, the decision to hold branch elections on 17 January 2026 was not arbitrary or unreasonable as alleged. The majority of 1st respondent members supported holding the election on Saturday to avoid work disruptions and ensure that most members could attend the polling stations. As per the schedule, Saturday is a working day for all departments where the union members are deployed, including Revenue and Finance. Employees from Environment, Enforcement, Fire and Disaster Management, and Health Services are in the department and work daily, including Public Holidays, since they provide essential services. Duba avers that union members work throughout the year, except for allowed leave days. Saturday is a standard working day for emergency services and medical staff. Contrary to the private sector, Saturday is a formal working day for County Government workers. The primary legal obligation is to ensure the continuity and uninterrupted delivery of essential services. Consequently, the choice to hold branch elections on 17 January 2026 was member-driven and approved by the respondents. Other trade unions across the country have taken similar measures to ensure no disruptions to services to third parties, including teachers' elections under KUPPET and KNUT. Others include KUDHEIHA, whose members provide a range of services in the education and health sectors. The County Government of Nairobi City has, by letter dated 6 January 2026, approved the 1st respondent’s request to use City Stadium as the venue for the union branch elections on 17 January 2026. Postponing the elections would impede the services that union members provide to the public. A total of 9,000 members are expected to participate in the petition. It is only fair to allow union elections to proceed as scheduled to avoid the loss of funds incurred in organising and ensuring that members exercise their democratic right. In the petition, the petitioners submitted that although the union elections have been held, the matter and subject of the petition remain moot. In **Raila Odinga & Others v IEBC & Others [20131 eKLR**, the Supreme Court held that: *A matter is not rendered moot merely because the event complained of has taken place if the issues raised are of constitutional moment. The Court must, where appropriate, pronounce itself on constitutional questions of public importance even where the immediate dispute may have been overtaken by events, for the court bears the constitutional mandate of giving effect to the Constitution and guiding the conduct of public bodies.* The respondents violated the petitioners’ rights under Article 32 of the Constitution. The petitioners are members of the Seventh-day Adventist Church whose faith mandates observing the Sabbath from sundown on Friday to sundown on Saturday. Scheduling the union elections on Saturday without an alternative date denies the petitioners the necessary accommodations to exercise their democratic right to vote as union members. In **Seventh Day Adventist, Church (East Africa) Ltd v Minister for Education & 3 others [2017] eKLR**, the court held that freedom of religion includes the right to practice one’s religion. The petitioners were denied their right to religion when the respondents scheduled union elections on Saturday, the day of their worship. In **Commission for the Implementation of the Constitution v Parliament of Kenya & 5 [2013] eKLR**, the court held that constitutional compliance must be substantive and not merely formal. It is not sufficient to invoke the name of accommodation. One must demonstrate with evidence that the accommodation offered was meaningful, accessible and adequate to protect the right in question. In this case, the respondent was subjected to discriminatory treatment because of their religion. Such right is uncontested, and the orders sought should be issued with costs. The respondents submitted that union elections were held in accordance with section 34(1) of the LRA. The 1st respondent's constitution was adhered to. There was recognition of the petitioners’ right to religion, and a letter was issued advising them of the necessary accommodations to report early for the election and of their being granted priority voting. The petitioners have failed to demonstrate that their rights were violated, thereby justifying the instant petition. In **Aloise Otiende v Boniface & another, Cause No. 1650 of 2011**, the court held that public authorities do not exercise control over trade union electoral processes. Trade unions are allowed to self-regulate. In this case, the 1st respondent elections were conducted in accordance with its constitution. The allegations of discriminatory treatment are without evidence. In **Gichuru v Package Insurance Brokers Ltd Petition 36 of 2019**, the court held that the first salient feature in a case of alleged discrimination is that one group is put at a disadvantage when compared to another. The second feature is a causal link between less favourable treatment and the protected characteristic. Thirdly, one group may find it harder to comply with the conditions set than another. In this case, there is no evidence that the respondents deliberately set the petitioners apart and treated them differently, without affording them the right to vote. The alternative voting method allowed priority voting to accommodate the petitioners. The petition is without merit and should be dismissed with costs. **Determination** In this petition, the interim orders sought in the application dated 15 December 2025 are largely similar to those sought herein. Through a ruling delivered on 19 January 2026, the court dismissed the petitioners' application and allowed the 1st respondent's elections to proceed. The court appreciated that the union elections had already taken effect and that nothing prevented them from doing so. There is no appeal from this ruling. It stands. However, the petitioners raise various salient issues, particularly regarding the rights under Articles 32, 27, 41, and 47 of the Constitution. **Article 32 (1)** 1. *Every person has the right to freedom of conscience, religion, thought, belief and opinion.* 2. *Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.* 3. *A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion.* 4. *A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.* Although religion is not defined in the Constitution, Article 32 guarantees the right to manifest, observe, and practice religious beliefs. It prohibits actions that compel one to act contrary to one's religious beliefs. Article 32 underscores the breadth and width of the right to religion and, therefore, guarantees the petitioners’ right to declare, express, practice and manifest their religious beliefs to the fullest extent. In **JWM (alias P) v Board of Management [particulars withheld] High School & 2 others [2019] KEHC 10897 (KLR),** the court held that: *Rights under Article 32 of the Constitution could not be limited given the way the article was couched. Even if they were to be limited, the limitation had to be one contemplated by the Constitution. That was why Article 19 of the Constitution was clear that rights and fundamental freedoms in the Bill of Rights belonged to each individual, were not granted by the State and were subject only to the limitations contemplated in the Constitution.* The Constitution demands that the Bill of Rights be interpreted in a manner that favours the enforcement and enjoyment of rights and fundamental freedoms. The respondents were bound to uphold the petitioners’ rights guaranteed under Article 32. Although the petitioners were seeking to exercise their right to religion amidst the 1st respondent's membership of 9000, their fundamental rights and freedoms do not diminish. In **Obondo Victor & 7 others v Law Society of Kenya [2015] KEHC 7641 (KLR),** the court held that once an allegation of religious freedom is made, the Court must ascertain whether there has been an interference with the exercise of the right to religion to constitute an infringement on the same under **Article 32**of the**Constitution**. Once such infringement has been established, the Court must go a step further and determine whether it is in any way reasonable and justified. In their written submissions, the petitioners do not address what happened to them on 17 January 2026 during the Nairobi branch union elections. Save to urge the court that the accommodations made by the 1st respondent were not reasonable, the infringement of their right to worship vis-à-vis the 1st respondent's right to political participation and voting is not addressed. This is because the ultimate protection of the right to freedom of religion must be measured against other rights, with a view to the underlying context in which the apparent conflict arises. A proportionality test. A balancing of conflicting interests as between the Petitioners' right to religion and the Respondents' right to hold elections as regulated under the LRA. In **Seventh Day Adventist (East Africa) Ltd v Minister for Education & 3 Others (2014) eKLR,** the court held that there should be reasonable accommodation of the right to religious belief. However, in **S v Manamela and Another (2000) (5) BCLR 491,** the court recognised that: ***In essence, the Courts must engage in a balancing exercise and arrive at a global judgment on proportionality, rather than mechanically adhering to a sequential checklist. As a general rule, the more serious the impact of the measure on the right, the more persuasive or compelling the justification must be. Ultimately, the question is one of degree to be assessed in the concrete legislative and social setting of the measure, paying due regard to the means which are realistically available in our country at this stage, but without losing sight of the ultimate values protected...Each particular infringement of a right has different implications in an open and democratic society based on dignity, equality and freedom. There can accordingly be no absolute standard for determining reasonableness.*** In this regard, the respondents must seek to accommodate all persons, including the petitioners, during the next cycle of elections. The right to religion is constitutional, as is the right to political participation. In securing an appropriate election day, the respondents must factor in the participation of every member, including the petitions, on a day when they can fully enjoy their constitutional rights. On the alleged discriminatory treatment of the petitioners, as addressed above, the petitioners have not set out a case that the respondents deliberately, without any accommodations, set them apart for different treatment. Indeed, when the matter of the election date of 17 January 2026 falling on a Saturday and a day of worship was brought to the respondent's attention, efforts were made to accommodate, albeit without success. The respondents had issued notice and secured facilities to accommodate 9000 members on the election date. This weighed against the petitioners' right to worship, and the elections proceeded as scheduled. There are no submissions on the prejudice suffered by the petitioners. Regarding the right to fair labour practices and fair administrative action, whereas both parties recognise that each enjoys the right to worship and the right to political participation, the 1st respondent union elections are also regulated under the LRA. The 1st interested party issued a circular to all trade unions, directing them to hold elections within a specified timeline. Union elections, like national elections, occur in a 5-year cycle. It is imperative that, in planning and organising such elections, the respondents should take into account the rights of each union member, including the petitioners. Being futuristic, the necessary permissions, planning and organisation must factor in these rights. Indeed, there exists a best practice under Article 101 (1) of the Constitution: ***101. (1) A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year.*** The only exception is where the employer offers essential services. Such should be factored and addressed accordingly to avoid stoppage, disruptions or cessation of service for the purpose of conducting an election. The rights must thus be balanced. Orders sought shall not issue. **In this regard, following the ruling delivered on 19 January 2026 and the petition analysed above, the orders sought are declined. For industrial peace, each party is to bear its costs.** **Delivered in open court this 3rd day of July 2026** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistant: Kemboi ……………………………………………… and …………………………………..………