https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1849

Omosa & 5 others v Kenya Union of Post-Primary Education Teachers (KUPPET) & another (Petition E123, E136 & E144 of 2026 (Consolidated)) [2026] KEELRC 1849 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1849 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E123, E136 & E144 of 2026 (Consolidated) M Mbarũ, J June 30, 2026 Between Davis Nyamweya Omosa 1st Petitioner Monica Kamau 2nd Petitioner Victor Abima 3rd Petitioner Irene Njoki Ndung'u 4th Petitioner Bernard Ereneo Ngiza 5th Petitioner Brian Ochwoto 6th Petitioner and Kenya Union of Post-Primary Education Teachers (KUPPET) 1st Respondent The Registrar of Trade Unions 2nd Respondent Ruling 1.The matter in Petition E123 of 2026 was scheduled for judgment as agreed by the parties parties. However, based on the objections herein and the placing of the file together with other filed ELRC Petition E136 of 2026 and ELRC Petition E144 of 2026, the analysis thereof, a ruling shall suffice and not a judgment. 2.The petitioners filed an application dated 20 April 2026 under the provisions of the Constitution, section 34 and 35 of the Labour Relations Act, sections 12, 31 and 34 of the Employment and Labour Relations Court Act and Rules 45, 47 and 68 of the Employment and Labour Relations Court (Procedure) Rules, seeking orders:1.Spent.2.Spent.3.Spent.4.The court be pleased to issue a conservatory order restraining the persons purportedly elected as national officials of the 1st respondent from assuming office, acting, or holding themselves out as duly elected officials pending the hearing and determination of this application and the petition.5.The court be pleased to issue a conservatory order preserving the status quo obtaining before the impugned Special Delegates Conference held on 18 April 2026 pending the hearing and determination of this application and the petition.6.Costs of this application be provided. 3.The petitioners have supported the application by way of the Affidavit of Davis Nyamweya, the 1st petitioner. He avers that the petitioners have a prima facie case with a high chance of success, as the challenged Special Delegates Conference (SDC) was constituted in violation of Article 8.2.0 of the 1st respondent's constitution and Section 34 of the Labour Relations Act (the LRA). The participation of unlawfully picked pro-rata delegates in the electoral process rendered the entire SDC irregular, unlawful, and unconstitutional. The petition raises serious and arguable constitutional issues touching on the petitioners' rights under articles 27, 41, and 47, which warrant preservation pending the hearing of the petition herein. 4.Omosa avers that there exists a real and imminent danger that the 2nd respondent shall proceed to register the purported elected officials, thereby giving effect to an unlawful and irregular process. Unless the orders sought are issued, there will be an entrenchment of illegality, and the petition will be rendered academic. 5.Omosa avers that, upon the KUPPET holding the SDC on 18 April 2026 at Kasarani Gymnasium, Nairobi, it was not convened in accordance with the union constitution, which, under Article 8.2.0, should have comprised delegates appointed for every 100 members. While the 14 officials from each branch were duly elected through branch elections, no such assemblies were convened to appoint pro-rata delegates. Instead, the persons who attended as pro-rata delegates were irregularly and unlawfully hand-picked by officials of the 1st respondent without any democratic process or mandate as required under the 1st respondent's constitution. There exist no minutes or records of evidence of branch general assemblies for the appointment of such a pro-rata delegate. 6.Omosa avers that, as a member of the Murang’a branch of the 1st respondent, he can confirm that no such pro rata assembly or appointment occurred. The SDC that conducted the elections was improperly constituted, and its outcome is unlawful and irregular. The orders sought should be issued, as otherwise, the petition will be rendered academic. 7.In reply, the 1st respondent filed the Replying Affidavit of Maurice Akello Misori, the Secretary-General, who avers that under sections 4 and 5 of the Statutory Declarations Act and Rule 7 of the Commissioners for Oaths (Fees on Affidavits) Rules, the deponent of an affidavit must appear before the Commissioner, take the oath, and then make the declarations. The jurat must state where the oath is taken and indicate where the affidavit is commissioned. 8.In a case where the oath is taken in one place and committed in another, the affidavit is considered not to have been made in the presence of the commissioner and therefore not evidence made under oath. The probative value of the evidence in such an affidavit cannot be admitted. 9.The petitioners have not adhered to the provisions of Rule 9 of the Commissioners for Oaths (Fees on Affidavits) Rules. The exhibits must be sealed with the commissioner's seal and marked with serial letters of identification. One annexure is marked, and the rest are not. The majority of the evidence is submitted in conflict with the Rules. 10.Misori avers that the petitioners' application is premised on allegations that the 2nd respondent is continuing with the registration of electees. If so, the application is premature and academic. 11.There is no prima facie case as alleged. The petitioners have resorted to fraud and forgery to support their case. The alleged letter by the Murang’a branch secretary is an edited forgery. It contains typing errors and is a rushed attempt to mislead the court. 12.Misori avers that he has since contacted the Murang’a branch executive, who confirmed that the letter attached to the petition was not from the office. Thomas Kimani, the branch secretary, has filed his affidavit and confirms he never executed the impugned letter. There is thus deceit and fraud under to support the application before the court. The petitioners are in court with unclean hands and should not be entertained. 13.Misori avers that the petitioners' assertion that there was no branch general assembly conflicts with the fact that they were able to vote in the Murang’a branch elections on 24 February 2026. Article 13(a) (i) requires that elections take place during the branch general assembly. The petitioners admit that an election was held and that they voted. 14.The registration of the results of the election by the 2nd respondent was evidence of a branch election that was held in the Murang’a branch under the presiding officer and the County Labour Officer, Murang’a. Returns were filed with the 2nd respondent. These elections have not been challenged. 15.The letter forwarding the results by the branch executive secretary also communicated the appointment of pro-rata delegates as required under Article 8.2.0 of the Constitution. The allegations by the petitioners have no basis and reveal an effort to mislead the court into granting orders that are without merit. 16.In reply, the 2nd respondent filed the Replying Affidavit of Anne Kanake, the Registrar of Trade Unions. She avers that the mandate of the 2nd respondent is to register and regulate trade unions, employer organisations, and federations. The petitioners seek conservatory orders, which are without merit and hence an abuse of court process. 17.Ms Kanake avers that the stay orders stopping the registration of KUPPET union officials are already overtaken by events, as the election for national officials was conducted on 18 April 2026, and the 2nd respondent has already registered them upon presentation of Form Q. The elections were conducted peacefully in accordance with the union constitution and the LRA. A Labour Officer oversaw the election and submitted a report to the 2nd respondent. The filed report complied with the requirements of section 35(5) of the LRA, which sets out the evidence required before registration of elected trade union officials. 18.Ms Kanake avers that the office's action to register the election is unlawful and procedurally improper. The office exercised the legal mandate and proceeded to register the elected officials. The petition herein is meant to circumvent the will of the people and should be dismissed with costs. 19.Omosa filed his Further Affidavit and avers that an affidavit can be commissioned anywhere in the country, provided the Commissioner for Oaths and the place where the jurat is located are stated. In this case, the affidavit was sworn in Thika, and the Commissioner's stamp indicates Nairobi, where the address is registered and not the place of commissioning. 20.Events do not overtake the application as the 1st respondent asserts. Conservatory orders can be issued as held in Munya v Githinji & 2 others [2014] KESC 30 (KLR). The application was filed on 20 April 2026, seeking to stop the registration of the election results herald dated 18 April 2026, and, if already effected, a stay thereof. But the respondents rushed to register for the election to defeat the court process. Conservatory orders sought are, in their nature, public law remedies designed to uphold constitutional order and preserve the authority of the court. The challenged registration of the election is thus a continuing wrong that should be suspended. 21.There is a prima facie case. Trade union elections must adhere to section 34 of the LRA by following its constitution. The 1st respondent did not adhere to Article 8.2.0 of the Constitution. The branch general assemblies were convened earlier in the year, under which pro-rata delegates should be elected. This has not been done. 22.Various branches adopted different methodologies for electing pro-rata delegates. For the Murang’a branch, these were handpicked, not elected as allies, by the 1st respondent. There are no minutes to confirm how this process was conducted. Evidence that a special delegates' conference was held is missing. 23.The orders sought should be issued to allow petitioners to urge their case, since the registration of irregular elections would be contrary to justice and the fair administration of the matters addressed in the petition. The balance of continuity favours the petitioners. 24.Misori filed his Supplementary Affidavit and reiterates the averments in his Replying Affidavit. 25.In the application, the petitioners submitted that there is no dispute that the KUPPET national elections were held on 18 April 2026 at Kasrani Gymnasium in Nairobi. The same was conveyed through notice dated 9 March 2026 issued by the 1st respondent pursuant to Article 8.2.0 of the Union Constitution. Such an article requires that the special delegates conference comprise pro rata delegates appointed from the 47 branches for every 100 members. Whereas the 14 branch officials were elected, there was no consensus to elect pro rata delegates. Instead, such were handpicked by the 1st respondent, a practice that is irrelevant and unlawful. 26.Under section 34(1) of the LRA, a trade union should conduct its elections following its constitution. Article 8.2.0 of the Union constitution requires that the pro-rata delegates be elected from the branches, which was not done for the Murang’a branch, and the petitioners did not witness such an election. This renders the attendance of any purported special delegates' conference invalid. 27.The SDC held on 18 April 2026 comprised persons who were not lawfully entitled to attend. This nullifies the elections thereof. The conservatory orders sought are necessary and legitimate because the respondents' conduct of elections failed to meet the threshold requirements of the LRA and the union constitution. There is no record on file confirming the minutes taken during such elections for the pro-rata delegates. 28.In Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR, the court held that section 112 of the Evidence Act requires that, in civil proceedings, when any fact is within the knowledge of any party, the burden of proving such fact is upon him. 29.The petitioners submitted that the 1st respondent has the burden of proving compliance with the KUPPET constitution by producing the records. The question of pro-rata delegates is appointive rather than elective. The union constitution requires a lawful appointment process, which was not done; hence, this petition. Without adherence to the constitutional order, the elections conducted on 18 April 2026 are invalid ab initio. The registration of the union officials by the 2nd respondent is invalid and cannot be justified on the ground of illegality. This violates the constitutional rights of the petitioners, and the orders sought pending the hearing and determination of the petition are justified. 30.The 1st respondent submitted that the petitioners have failed to comply with the mandatory provisions of sections 4 and 5 of the Oaths and Statutory Declarations Act and the rules thereunder. The affidavit file in support of the application is materially deficient and has been sworn and commissioned at different locations, which is not possible. The attached documents are not sealed, rendering them inadmissible, and should be expunged. The application is thus without a proper supporting affidavit. 31.The 1st respondent submitted that the documents attached to the affidavit were obtained through fraud and forgery. The alleged author, Thomas Kimani, the executive secretary of the Murang’a branch, has since denied writing such a letter. This renders a fatal blow to the application. The petitioners cannot rely on forged records to support their case in court. 32.The 1st respondent held branch elections on 24 February 2026, including for the petitioners. Article 13.0 of the union constitution allows for pro-rata delegates to be appointed during the branch elections, which were done and registered with the 2nd respondent. Before the 2nd respondent could register the branch officials, a report was submitted, and upon checking compliance with the LRA and the union constitution, the 2nd respondent was satisfied with the process and outcome. 33.The 2nd respondent submitted that the petitioners are seeking conservatory orders to stop the 2nd respondent from registering the national union election, which has already been effected. There is nothing to be stayed or conserved as alleged. The election was held on 18 April 2026 and has since been registered. There is no prima facie case as required in Giella v Cassman Brown [1978] EA. Having been overtaken by events, the orders sought cannot be issued. 34.In Yenk & 13 others v Narok County Government & 6 others [2025] KEELC, the court held that where a title deed had already been issued, the event sought to be stopped had already occurred and the court could not injunct it. Similarly, in this case, the registration of the elections held on 18 April 2026 having taken effect, there is nothing to be stayed, enjoined, or conserved. Under section 35(2) of the LRA, upon notice of change of officials upon the registration of Form Q, such is a confirmation of the union officials. The law hence sets out the mandatory evidence that the 2nd respondent should confirm before effecting the registration of Form Q, which has since been done and is not in fault. Determination 35.The orders sought in the interim are for a conservatory order restraining the 2nd respondent from registering and giving effect to the election of the 1st respondent's national officials following the elections on 18 April 2026. Also, the petitioners are seeking conservatory orders restraining the 1st respondent from assuming office or holding themselves as elected officials of KUPPET. 36.Fundamentally, the petitioners are seeking a conservatory order preserving the status quo prevailing prior to the impugned Special Delegates Conference held on 18 April 2026. 37.Indeed, as the 2nd respondent has set out in the Replying Affidavit, this is the office mandated under the LRA to register and regulate trade unions, the procedures followed upon submission of Form Q. Upon this reply, the confirmation is that the union officials are registered upon submission of Form Q. Further, the same has taken effect pursuant to the LRA provisions. Also, the status quo sought in the instant application to revert to the situation before the challenged elections is not, in its nature, allowable. Union elections are conducted under its constitution and the LRA. 38.Under the LRA, upon submission of the FORM Q, section 35 (2) and (3) therefore mandates the 2nd respondent to confirm the records before registration. If not satisfied, direct the production of the relevant evidence:(3)Before registering any change of officials or correcting any register, the registrar may require the production of any relevant evidence of the change. 39.On the other hand, if not satisfied with the records, an inquiry must be conducted to confirm the validity of the record:(4)If, after inquiry, the Registrar is not satisfied as to the validity of any appointment or the propriety of any proposed correction, the Registrar may Refuse to register changes in officials or to correct the register. 40.Hence, the registration of union officials is a regulated process under the LRA. 41.Upon registration, such as herein done for the 1st respondent, the motions of section 30 of the LRA fall into place. 42.The election process for KUPPET hence ended with the 2nd respondent acting on Form Q upon the elections on 18 April 2026. 43.The orders sought herein do not form a good foundation for a petition as herein done. 44.The 1st respondent has raised the issue of compliance with sections 4 and 5 of the Oaths and Statutory Declarations Act and the Rules thereto. The fact that the deponent in an affidavit should attend before a jurat to take the oath. The documents attached to the affidavit must be sealed. 45.The petitioners contend that such technicalities should be addressed under Article 159 of the Constitution, which provides that parties should address substantive justice rather than technicalities. However, an affidavit is a serious record and account of facts. If such facts do not exist because the deponent did not attend before the jurat and Commissioner for Oaths, indeed, the probative value of such a record is not. Equally, an affidavit that has attachments that were not sealed by the Commissioner taking the oath, such as can only be termed as strange records. These are not part of what the Commissioner for Oaths witnessed. 46.These cannot be mere technicalities that can be cured by the application of Article 159 of the Constitution. They go to the heart of the entire affidavit. In this case, the petitioners' responses do not hold water. They do not explain how, with one in a different location and the Commissioner for Oaths in another, they were able to appear and take an oath. 47.The instant application is based on an irregular affidavit. It has no probative value. It results in a fatal error for the application. 48.In a case where the merits of the application were to be addressed, the basis of the instant application by the petitioners is the alleged non-compliance of the 1st respondent with Article 8.2.0 of the 1st respondent's constitution. However, the court reading of the entire constitution, and particularly Article 13.0 of the KUPPET constitution, upon a valid branch election, such as the Murang’a Branch of KUPPET, and the returns by the presiding officer and County Labour Officer, confirms the status of such elections. Indeed, the petitioners do not contest that they attended, participated in, and voted during their branch elections on 24 February 2026. The branch executive has since confirmed what took place. 49.In light of the petition and the respondents’ responses, the 1st respondent having submitted Form Q and the 2nd respondent having acted on it, the motions of section 30 of the LRA not addressed, the orders sought cannot issue as couched. The petition lacks a foundation. 50.Before conclusion, ELRC Petition E136 of 2026 and ELRC Petition No. E144 of 2026 were paced together with this file. 51.In ELRC Petition E136 of 2026, the petitioners filed an application dated 24 April 2026 seeking the following orders:1.Spent.2.Spent.3.A conservatory order be issued and/or suspending the declaration, implementation and legal effect of the election of the 1st respondent from the KUPPET National Election held on 18 April 2026 pending the hearing and determination of this application.4.Pending the hearing and determination of the petition, the court be pleased to:a.Restrain the 3rd Respondent from registering or recognising the 1st Respondent.b.Suspend the validity and legal effect of the election of the 1st respondent.c.Restrain the 1st respondent from assuming office, acting or holding himself out as duly elected pursuant to the said elections.5.If registration has already been effected, this court be pleased to issue an order suspending and/or nullifying the registration of the 1st respondent forthwith pending the hearing and determination of this application and petition.6.The court be pleased to direct that the office contested shall remain vacant or be administered through neutral interim arrangements, excluding the 1st respondent, pending the determination of the petition.7.Costs are to be provided for.8.Any further orders that the court may deem fit to grant in the interests of justice, constitutionalism and the rule of law. 52.The basis of this application is that the 2nd respondent conducted elections on 18 April 2026 in which the 1st respondent was declared elected. The petitioners do not challenge the entire election but the constitutional eligibility of the 1st respondent to contest and hold office. The 1st respondent is a sitting Member of Parliament and therefore a state officer within the meaning of Article 260 of the Constitution. The 2nd respondent is a trade union, and the election of the 1st respondent as a union official violated articles 73 and 75 of the Constitution. The holding of a state office and also seeking to occupy office in a trade union creates inherent conflict between public duties and union interests, hence rendering the decisions of the 2nd respondent defective. 53.The respondents filed a Notice of Preliminary Objections, alleging that the petition is sub judice and that there exists a similar suit, Nairobi ELRC Petition No. E225 of 2025 and Nairobi Petition No. E253 of 2025. 54.Thus, this petition raises a different and separate issue(s) and objections that the court must address on the merits. The admission by the petitioners that they do not challenge the entire electoral process and the elections, save for the election of the 1st respondent, must then be heard on its merits. 55.This file shall be removed from the others for hearing and determination. 56.Regarding Nairobi Petition E144 of 2026, the petitioners raise 11 orders. The gist of these orders is that the respondents, especially the 8th respondent, are to produce records used in the elections held on 18 April 2026, particularly the list of delegates, indicating the basis on which they were elected. That the 15th respondent disclose the documents and records related to the selection, appointment and accreditation of delegates, including the minutes of branch general assemblies, voting records and all official communication. 57.In particular, under order (i), the petitioners are seeking an order to Safaricom Limited to produce and furnish to this court certified M-Pesa statements for the period 1 February 2026 to 30 April 2026 in respect of the following mobile numbers:a.070 …..b.[etc]. 58.Although the petitioners seek these records, Safaricom Limited is not a party herein. 59.The petitioners are also seeking empanelment of a 3-judge bench. 60.The basis of this application is that it raises serious questions of law, including the interpretation of Article 260 of the Constitution in the definition of a public officer and the eligibility of trade union officials to hold or contest public employment or elective office. The petition also addresses the legality and constitutionality of the elections held on 18 April 2026, as well as the effect of conflicting judicial decisions on the same legal question. 61.Hence, based on the petitioners' application, this petition should be separated from the others and heard on its merits. 62.Accordingly, the application and Petition E123 of 2026 dated 20 April 2026 are hereby dismissed. Costs to the respondents. 63.The Petition E136 of 2026 shall be removed from this file and heard separately. 64.The Petition E144 of 2026 shall be removed from this file and heard separately. DELIVERED IN OPEN COURT THIS 30TH DAY OF JUNE 2026M. MBARŨJUDGEIn the presence of:Court Assistant: Samuel Maruga…………………………………………… and……………………………………………