Olambo & 2 others v Kenya National Union of Teachers & 5 others (Cause E005 of 2026) [2026] KEELRC 1425 (KLR) (28 May 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **CAUSE NO. E005 OF 2026** ROSELYNE S. OLAMBO…...............................…………....**1ST CLAIMANT** ESTER J. C. ANYANGO……………………………………**2ND CLAIMANT** DANISH OPOLE DANDO……………………………..….**3RD CLAIMANT** **VERSUS** KENYA NATIONAL UNION OF TEACHERS.............**1ST RESPONDENT** THE KENYA NATIONAL UNION OF TEACHERS SUBA BRANCH.........................................**2ND RESPONDENT** THE COUNTY LABOUR OFFICER HOMABAY….....**3RD RESPONDENT** VICTOR ONYANGO ODHIAMBO..............................**4TH** **RESPONDENT** JACKLINE AKOTH WANDAGO…..............................**5TH RESPONDENT** OGOLLA JOHN KENNEDY OOKO..............................**6TH RESPONDENT** **RULING** 1. The 4th Respondent has raised a Preliminary Objection to the suit on the grounds that: * + 1. It offends the express provisions of Article 159(2) of the Constitution; 2. It offends the provisions of the Fair Administrative Actions Act 2015; 3. It bypassed the internal dispute resolution mechanism provided under the Kenya National Union of Teachers Constitution; and 4. The Claimants did not invoke or exhaust the remedies available within the Union. On the strength of these grounds, the 4th Respondent urges the Court to strike out the suit with costs. 1. The Preliminary Objection was disposed of by way of written submissions. The 1st, 2nd, 4th, and 5th Respondents supported the objection, while the Claimants opposed it. 4th Respondent’s submissions 1. The 4th Respondent submits that any dispute arising from KNUT elections ought, in the first instance, to be presented before the KNUT National Executive Council. He references Article VI Sub-Article (C) Rule 4 of the KNUT Constitution, 2022, which mandates the National Executive Council and its Chairperson to enforce the Constitution, Rules, Regulations, Standing Orders and By-laws of the Union, and to take all necessary steps towards such enforcement. The 4th Respondent asserts that even the Labour Officer who conducted the impugned elections remained answerable to the National Executive Council, hence the Claimants ought to have petitioned the National Executive Council through its Chairperson before approaching the Court. He further asserts that by failing to invoke the Union’s internal mechanisms, the Claimants acted contrary to the spirit of Article 159(2)(c) of the Constitution and section 4 of the Fair Administrative Action Act. In support of this position, reliance is placed on the KNUT constitution specifically Article VI(1) and Article IX(c), as well as the decisions in the cases of **Speaker of the National Assembly *v* Karume (civil application 92) [1992] KECA 42 (KLR)**, **Geoffrey Muthinja *&* 4 others *v* Samuel Muguna Henry *&* 2 others [2020] eKLR** and **Kevin Mutsembi *v* KNUT Kakamega Branch [2026] КЕНС 329 KLR**. He consequently urges the Court to strike out the claim with costs. 1st and 2nd Respondent’s Submissions 1. The 1st and 2nd Respondents similarly support the Preliminary Objection. They identify two issues for determination, namely: * 1. Whether the Preliminary Objection is merited; and 2. Whether the claim violates the doctrine of exhaustion of internal remedies. 2. On the merits, they submit that the objection properly raises a jurisdictional issue founded on the Claimants’ failure to exhaust internal remedies and therefore qualifies as a proper preliminary objection within the meaning of **Mukisa Biscuits Manufacturing Co. Ltd *v* West End Distributors Ltd [1969] EA 696**, where it was stated: *"So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration"*. 1. On the second issue the 1st and 2nd Respondents submit that the Claimants, being members of KNUT, are bound by the Union’s constitution. They assert that the KNUT constitution derives its validity from sections 8, 14, 18 and 27 of the Labour Relations Act and is therefore central to the governance and operations of the Union. Consequently, they contend that the Claimants cannot seek to enforce rights arising under the Union while at the same time disregarding the dispute resolution procedures established by that very constitution. 2. The 1st and 2nd Respondents further maintain that the suit offends the doctrine of exhaustion because the KNUT constitution expressly provides for membership rights, suspension of such rights and internal dispute resolution mechanisms. Reliance is placed on section 4(2) of the Labour Relations Act, which grants every member of a trade union the right, subject to the union constitution, to participate in union activities, elections and leadership, as well as section 34 of the Act which requires trade union elections to be conducted in accordance with the registered constitution of the union concerned. 3. In further support of the doctrine of exhaustion the 1st and 2nd Respondents rely on **Speaker of the National Assembly *v* James Njenga Karume [1992] eKLR**, where the Court of Appeal held that where the Constitution or an Act of Parliament prescribes a procedure for redress of a grievance, that procedure must be strictly followed. They also reference **William Odhiambo Ramogi *&* 3 others *v* Attorney General *&* 4 others; Muslims for Human Rights *&* 2 others (Interested Parties) [2020] eKLR**,where the Court emphasized that the doctrine of exhaustion serves to postpone judicial intervention until alternative dispute resolution mechanisms have first been utilized in line with Article 159 of the Constitution. 4. Additionally, the 1st and 2nd Respondents submit that the suit offends section 30 of the Labour Relations Act, which envisages that disputes touching on trade union governance should first be addressed through the Registrar of Trade Unions before recourse is made to Court. They assert that the Claimants ought to have first lodged their complaints before the Registrar, and having failed to do so, the suit is premature, incompetent and fatally defective. They therefore urge the Court to uphold the Preliminary Objection and dismiss the claim with costs. 5th Respondent’s submissions 1. The 5th Respondent equally supports the Preliminary Objection and identifies three issues for determination, namely: whether the claim offends Article 159(2) of the Constitution; whether it contravenes the Fair Administrative Action Act; and who should bear costs. 2. On the first issue, the 5th Respondent submits that the Claimants’ failure to invoke the internal mechanisms provided under Article VI(1) as read with Article IX(c) Rule 4 of the KNUT constitution runs afoul of Article 159(2)(c) of the Constitution, which encourages the use of alternative dispute resolution mechanisms. In support of this proposition reliance is placed on **Okoiti *v* Clerk of the National Assembly (Petition E373 of 2023) [2024] KEHC 16468 (KLR)**, where the Court observed that courts should ordinarily be the fora of last resort where alternative dispute resolution mechanisms exist. 3. On contravention of the Fair Administrative Action Act, the 5th Respondent submits that by bypassing the internal dispute resolution process, the Claimants denied the Respondents an opportunity to address the dispute through the KNUT National Executive Council, which is a quasi-judicial body capable of enforcing the Union constitution. She contends that the Claimants ought first to have ventilated their grievances before that body in line with section 4 of the Act. 4. On costs the 5th Respondent submits that, having acted contrary to the doctrine of exhaustion, the Claimants should bear the costs of the suit. Claimants’ submissions 1. In opposition to the Preliminary Objection, the Claimants submit that the objection does not meet the threshold set out in **Mukisa Biscuits Manufacturing Co. Ltd *v* West End Distributors [1969] EA 696**, because it does not raise a pure point of law argued on the assumption that all pleaded facts are correct. They assert that Article 159(2)(c) of the Constitution merely encourages the use of alternative dispute resolution mechanisms and does not make such mechanisms a mandatory precondition to instituting court proceedings. The Claimants further maintain that access to justice under Article 48 of the Constitution is non-derogable, and that interpreting Article 159(2)(c) as ousting the jurisdiction of the court would amount to an infringement of their constitutional rights. Additionally, they submit that the Constitution is a living document that should be interpreted wholistically rather than in fragments. In support of that proposition, they rely on **Njoya *&* 17 others *v* Attorney General *&* 6 others [2013] KEHC 6000 (KLR)**, where the court frowned upon piecemeal interpretation of the Constitution. 2. On the allegation that the suit offends the Fair Administrative Action Act, the Claimants submit that no specific provision of the Act has been identified as having been violated. They further contend that section 9(2) of the Act relates specifically to exhaustion in judicial review proceedings, whereas the present matter is an ordinary claim. With regard to the KNUT constitution, the Claimants submit that it does not provide any internal mechanism for the resolution of election disputes, nor has the 4th Respondent identified any specific provision establishing such a mechanism. In support of this position, they rely on the decision in the case of **Kimani *&* another *v* Kenya National Union of Teachers *&* 3 others [2025] KEELRC 2891 (KLR)**, where the court, in circumstances similar to the present case, held that it had jurisdiction to determine KNUT election disputes pursuant to section 34(4) of the Labour Relations Act. On costs, the Claimants urge the court to award the same to them in accordance with section 27 of the Civil Procedure Act. Disposition 1. The dispute before the Court is an election dispute *strictu sensu* despite the same not being an election petition against the outcome of the Suba Branch elections. The case pits members of the Kenya National Union of Teachers, the union itself and the Ministry of Labour in the person of the County Labour Officer Homabay County. The elections in sharp focus are the elections of Suba branch. In the KNUT constitution, it is said that there is a dispute resolution mechanism prescribed. The 4th Respondent here has raised an objection that the Claimants did not comply with the KNUT constitution in preferring their complaints. The other Respondents here join him in that position. Trade Union elections take place ordinarily in cycles of 5 years. The last election cycle was in 2021 shortly after Covid had ravaged the world. This year is the year Ebola is menacing the world. 2. The Claimants in opposing the position taken by the Respondents assert the objection raised does not meet the test set out in the *locus classicus* on preliminary objections being the case of **Mukisa Biscuits Manufacturing Co. Ltd *v* West End Distributors Ltd** *(supra)*. It is argued the objection taken is not a proper objection. In that case it was famously held that: *“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration….a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”* 1. An objection cannot be taken where judicial discretion is sought. Neither can it be raised where facts have to be ascertained. Having had regard to the objection raised, the 4th Respondent asserts that the suit offends the express provisions of Article 159(2) of the Constitution, the provisions of the Fair Administrative Actions Act 2015 and offends the exhaustion doctrine by skipping the internal dispute resolution mechanism provided under the Kenya National Union of Teachers Constitution. 2. These aspects are all objections grounded in law and the raising of the objection fits well within the purview of a preliminary objection as the success of the objection would lead to determination of the suit *in limine.* I find and hold that the objection raised is on pure points of law. 3. The KNUT constitution under Article VI Sub-Article (C) Rule 4 of the 2022 KNUT constitution, mandates the National Executive Council and its Chairperson to enforce the Constitution, Rules, Regulations, Standing Orders and By-laws of the Union, and to take all necessary steps towards such enforcement. Nowhere is there an indication of an appeal process. My reading of the KNUT 2022 constitution reveals a constitution that is bereft of internal dispute resolution mechanisms on elections. In my considered view, the Claimants were entitled to move the Court. As such the objection fails and is dismissed with costs being in the cause. It is so ordered. **Dated and delivered at Nairobi this 28th day of May 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**