https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1350

Onyango (Suing in the capacity as the CHAIRPERSON KUDHEIHA UoN Chapter) & 2 others v Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals, and Workers (KUDHEIHA workers) (KUDHEIHA) & another (Constitutional Petition E039 of 2025) [2026] KEELRC 1350 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1350 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Constitutional Petition E039 of 2025 JW Keli, J May 15, 2026 Between Abok Elisha Onyango (Suing in the capacity as the CHAIRPERSON KUDHEIHA UoN Chapter) 1st Petitioner Kaburu Rose Kagwiria (Suing in the Capacity as the Secretary KUDHEIHA UoN Chapter) 2nd Petitioner George Obili (Suing in the capacity as the SHOPSTEW ARD KUDHEIHA UoN Chapter) 3rd Petitioner and Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals, and Workers (KUDHEIHA workers) (KUDHEIHA) 1st Respondent Registrar of Trade Unions 2nd Respondent Judgment Introduction 1.The Petitioner commenced this suit vide a Petition dated 19th March 2025 seeking for the following relief:-a.A declaration that the elections conducted on 7th and 8th March 2025 were in contravention of the Respondent’s Constitution, the Constitution of Kenya, and the Fair Administrative Actions Act.b.An order nullifying the elections conducted on 7th and 8th March 2025 at parklands campus, main campus and at Chiromo/SWA/ADD/UHSc.An order that the nullified elections be repeated in compliance with the law and the procedures agreed upon.d.Any other relief that the Court may so grant in the dispensation of justice thereto. 2.The Petition was filed alongside the Supporting Affidavit of the 1st Petitioner, sworn on 19th March 2025. 3.In response to the said Petition, the Respondent filed a Replying Affidavit sworn by Albert Njeru Obed on 24th September 2025. The Petitioner’s case in summary 4.The 1st Respondent, being a trade union registered under the Labour Institutions Act mandated to represent employees engaged in sectors of Domestic, Hospitals, Hotels, Educational Institution either private or public owned (Universities, Polytechnics, Colleges, High and Secondary Schools, Primary and Academies and Clubs and Church owned Institutions), conducted an election of its officials on the following dates at the following locations:a.On 3rd February 2025 at the Lower and Upper Kabete campuses;b.On 4th February 2025 at the Kenya Science and Kenyatta National Hospital;c.On 6th February 2025 at the Parklands and main campuses; andd.On 7th February 2025 at CHIROMO/SWA/ADD/UHS. 5.The Petitioner states that the elections were not conducted fairly at the Parklands Campus, Main Campus and Chiromo/SWA/ADD/UHS as the same were marred by chaos and rigging, such that a resolution was reached that the said elections in the three areas be repeated. It was resolved that the respondent schedules the repeat elections but on the following terms:a.The Respondent to publish a clean voters’ register for Parklands, Main Campus and Chiromo/SWA/ADD/UHS.b.The Respondent to conduct civic education before the repeat elections.c.The Respondent do print ballot papers with the images of the aspirants. 6.The Respondent disregarded the resolutions reached and proceeded to schedule elections in the three polling areas on 17th and 18th March 2025 without issuing adequate notice thereof. The elections went ahead despite protests by the Petitioners and other Union members communicated to the 1st Respondent vide a letter dated 14th March 2025. Some grievances raised by the Petitioners are that some of the members who participated in the contested elections were retirees, had been promoted to higher levels, and were on agency, hence were not eligible to vote. 7.The Petitioner complains that the election of the 1st Respondent was conducted in contravention of the 1st Respondent's Constitution; Article 10 of the Constitution on national values and principles of governance including transparency and accountability; and Article 47 of the Constitution as read with Section 4 of the Fair administrative action Act Cap 7L of the Laws of Kenya on the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Respondents’ case in brief 8.The Respondents deny that the 1st Respondent held Union Branches elections on 7th and 8th March 2025, instead stating that it held these elections on 17th and 18th March 2025. Further, they deny that elections were conducted at Parklands Campus and Chiromo Campus, clarifying that KUDHEIHA Members who work at Parklands Campus voted at the Main Campus, while those who work at Chiromo Campus voted at the University of Nairobi Graduation Squares. Elections held at both locations, per the Respondent, were fair and transparent. 9.On the material dates being 17th and 18th March 2025, according to the Respondents, the Petitioners, specifically the 1st Petitioner, fully participated, and never complained of any irregularities at the commencement of and during the election exercise, only raising complaints after failing to win the election. The Respondents confirm that the 1st Respondent’s name appears in the attendance register for the participants/members of the Union for the elections held on 17th & 18 March 2025 at No. 9 in the lists dated 18th March 2025, while the 3rd Petitioner does not appear in either of the lists because he is no longer a member of the 1st Respondent Union – as a member of KUSU (Kenya Universities Staff Union) - in order to be eligible to either participate in or contest any KUDHEIHA election. 10.The Respondents insist that the Union Branches Elections were conducted in a fair, transparent and humane manner, with no incidences of chaos and rigging. They point out that the Petitioners have not produced any evidence of their allegations. They discredit the letter of complaint dated 14th March 2025 alluded to by the Petitioners as mere communication, rather than proof of violence, vote rigging and violation of the petitioners' human rights as alleged. 11.The result of the elections was that the 1st Petitioner lost the election, having scored only 118 votes to the winner, Allan Oriokot Eboi’s 192 votes. Similarly, the 2nd Petitioner only scored 092 votes and lost to Evan Karimi Wachiuri, who won by scoring 208 votes. 12.The Respondent’s deny that they agreed to the terms of the purported fresh elections as particularized by the Petitioners, averring that KUDHEIHA as a Union could not agree to publish the list of Voters since the list is held and provided by the Employer who is the University of Nairobi, and not the Union. In the list published by the University of Nairobi, the 1st Petitioner appears as No. 495. 13.The Respondent admits that elections for the various Union branches which were held in February 2025 were cancelled after complaints were raised. They state that the Petitioners were served physically on l8th June 2025 with letters of invitation to a hearing scheduled for 25th June 2025, but squandered the chance, and conclude that the present suit is an afterthought. 14.The Respondents deny that they violated any of the Petitioners Constitutional and/or statutory rights and challenge the petition for failure to demonstrate how any of the listed provisions were violated to a satisfactory degree or with specificity as required by the cases of Anarita Karimi Njeru V Republic (NO. l) (1979) 1 KLR 154 (page 156), and Mumo Matemu V Trusted Society Of Human Rights Alliance, Civil Appeal NO. 290 OF 2012 [2013] eKLR (at page 26 paragraph 87(3)). The Respondents’ case is that the Petitioners have not met the threshold for a Constitutional Petition. DETERMINATION 15.The petition was canvassed by way of written submissions. Both parties complied. Issues for determination 16.In his submissions dated 17th February 2026, the 1st Petitioner identified the following issues for determination:i.Whether the petition meets the specificity threshold required in Constitutional petitions;ii.Whether the 1st Respondent’s actions violated the Petitioner’s Constitutional rights;iii.Whether the 1st Respondent’s actions violated the 1st Petitioner’s legitimate expectation; andiv.Whether the reliefs sought should be granted. 17.On their part, the 1st Respondent filed submissions dated 9th February 2026, where they submitted generally on the petition. 18.The court finds the issue for determination to be whether the petition had merit. Whether the petition had merit 19.The Petitioners were union members of the 1st respondent. They filed the instant petition, being dissatisfied with the conduct and outcome of the University of Nairobi's 1st respondent’s branch elections. 20.The 1st Respondent is a Trade Union registered in Kenya in the section of domestic, hospitals, hotels, and education institutions, either private or public owned. 21.The 2nd Respondent was the Registrar of Trade Unions. 22.The 1st Petitioner was the then incumbent Chairperson of the University of Nairobi’s 1st Respondent’s branch and swore an affidavit in support of the petition on 19th March 2025. The Petitioners alleged that the elections of 8th and 9th March 2025 were marred by unfairness (see paragraph 20 of the petition). The petitioner contended as follows: “Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act No. 4 of 2015. The manner in which the 1st respondent conducted itself in disregarding the views of the petitioner and going against the agreed terms for the elections was in violation of Article 47 of the Constitution, which required it to act in a fair manner. The whole conduct of the elections of the 7th and 8th of March, 2025, was marred with unfairness having not conformed to the strictures of the Constitution. Article 47 of the Constitution states as follows:- “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” 23.The 1st Petitioner asserted as follows in his affidavit in support of the petition-a.That the 1st Respondent conducted an election of its officials on the 3rd February, 2025, at the lower & upper Kabete campuses. On the 4th of February, 2025, the Respondent conducted elections at Kenya Science & Kenyatta National Hospital and on the 6th of February, 2025, conducted elections at Parklands and main campuses. On the 7th of February, 2025, the Respondent conducted elections at CHIROMO/SWA/ADD/UHS (Attached herewith & marked "AEO-1" is a true copy of the said elections schedule/timetable dated 22nd January 2025).b.That the elections were not conducted fairly at Parklands, the main campus and CHIROMO/SWA/ADD/UHS as the same were marred by chaos and rigging as such a resolution was reached that the said elections in the three areas be repeated (Attached herewith & marked "AEO-2" are true copies of the cancellation notices).c.That it was resolved that the respondent do schedule the repeat elections but on the following terms:- THAT the Respondent do publish a clean voters register for Parklands, main campus and CHIROMO/SWA/ADD/ UHS.d.That the Respondent, in total disregard of the resolutions reached, proceeded to schedule elections in the three polling areas and without issuing adequate notice of the elections. That despite protest from the petitioners and many other members of the Respondent, the Respondent proceeded to conduct elections on the 17th and 18th of March, 2025 in the three polling areas (Attached herewith & marked "AEO-3" are true copies of the said protests by the 1st Petitioner)e.That on the 14th March 2025, the Registrar of the University of Nairobi replied to the 1st Petitioner's protests, directing its Director, Security & Safety Services, to apprise the management of the progress made on the complaint. (Attached herewith & marked "AEO-4" is a true copy of the response).f.That it was apparent that some of the members who participated in the contested elections were either retirees or had been promoted to higher levels hence not eligible to vote. That it is also apparent that some members especially who are on agency and not eligible to vote, participated in voting i.e Mr. Okere James Obondo. (Attached herewith & marked "AEO-5" is a true copy of the voters list). The conduct of the Respondent was not only unfair but an affront to the Constitution of the Respondent, the Constitution of Kenya and the Fair Administrative Actions Act.g.That the Respondent having proceeded to conduct the elections contrary to the law may proceed at any time to swear-in the illegally elected officials of the Respondent. 24.The 1st Respondent responded to the petition vide replying affidavit dated 24th September 2025 sworn by Albert Njeru Obed who stated he was the Secretary General of the 1st Respondent. He responded as follows:-a.That the Petition lacks merit and should be dismissed with costs. That the Petitioners, specifically the 1" petitioner fully participated in the Union Branches elections that were conducted on 17th and 18th March, 2025 but never complained as at the time the elections were commencing and during the election exercise but only started raising complaints after they failed to win the said election. They are blowing hot and cold, and the Honourable Court should decline to order sought in the petition. Subsequently, in the petition at paragraph 20, they are challenging an election which allegedly took place on 7 and 8 March,2025. We did not have any election on those dates. (annexed hereto and marked exhibit "Al' are copies of the attendance register for the participants/members of the Union for the elections held on 17 & 18 March, 2025 attached with the list provided by the University of Nairobi, which list is not provided by the Union in which the 1 petitioner appears at no.495).b.That in the attendance register for the participants/members of the Union for the elections held on 17th & 18th March, 2025. Abok Elisha appears at no.9 in the lists dated 18th March, 2025. George Obili does not appear in either of the lists because he is no longer a member of the Union. He is not legible to either participate in or contest any KUDHEIHA election because he is a member of KUSU union (Kenya Universities Staff Union).c.That in response to paragraphs; 4 and 5 of the supporting Affidavit in support of the Petition sworn by Abok Elisha Onyango, I state that the allegations are not true. The Elections were conducted in a fair, transparent and humane manner. There were no incidents of chaos, rigging or any such evidence has been provided by the petitioners to support such false allegations. As seen from the election results, Abok Elisha Onyango lost the Election and only scored 118 votes and lost to Allan Orikot Eboi, who won by scoring 192 votes and thereby defeated him.d.That in response to paragraphs; 4 and 5 of the supporting Affidavit in support of the Petition sworn by Abok Elisha Onyango, I state that the allegations are not true. Rose Kagwira Kaburu only scored 092 votes and lost to Evan Karimi Wachiuri who won by scoring scored 208 votes and thereby defeated her. (annexed hereto and marked exhibit "A2" are copies of the Elections results)e.That in further response to paragraphs; 4 and 5 of the supporting Affidavit in support of the Petition sworn by Abok Elisha Onyango I state that the allegations are not true. There were No Elections conducted at Parklands Campus. KUDHEIHA Members who work at Parklands Campus voted at the Main Campus, where the Elections were held and conducted in a fair and transparent manner. There were no incidences of chaos, rigging and the no any such evidence has been provided by the petitioners to support such false allegations.f.That in further response to paragraphs; 4 and 5 of the supporting Affidavit in support of the Petition sworn by Abok Elisha Onyango I state that the allegations are not true. There were no elections conducted at Chiromo Campus. KUDHEIHA Members who work at Chiromo Campus voted at the University of Nairobi Graduation Squares, where the Elections were held and conducted in a fair and transparent manner. There were no incidences of chaos, rigging and the no any Such evidence has been provided by the petitioners to support such false allegations.g.That in further response to paragraph 5 of the supporting Affidavit in support of the Petition sworn by Abok Elisha Onyango I state that the allegations are not true. The terms alleged by the petitioners were not provided for by the 1st respondent. Similarly, KUDHEIHA as a Union was not supposed to publish the list of Voters since the list is held by the Employer who is the University of Nairobi, which list is not provided by the Union. In that list published by the University of Nairobi, the 1" petitioner appears at no.495. See exhibit "A1" above.h.That response to paragraphs; 6 and 7 of the supporting Affidavit in support of the Petition sworn by Abok Elisha Onyango I state that the allegations are not true. The petitioner are put to strict proof of the allegations.i.That response to paragraph 8 of the supporting Affidavit in support of the Petition sworn by Abok Elisha Onyango I state that the allegations are not true. The alleged exhibit is not attached to the Petition Moreover, the letters alluded to was merely communication and does not amount to any violence, vote rigging and violation of the petitioners' human rights as alleged.j.That response to paragraph 9 and 10 of the supporting Affidavit in support of the Petition sworn by Abok Elisha Onyango I state that the allegations are not true. The alleged exhibit is not attached to the Petition Moreover, the letters alluded After the elections for the various Union branches were held in February, 2025, there were complaints. As a Union, we decided to cancel those elections and the Petitioners' appears in the respondents having been served physically on 18th June, 2025 for the hearing scheduled for 25th June, 2025 squandered the chance. The present application is an afterthought.k.That in response to paragraphs; 9 and 10 of the supporting Affidavit in support of the Petition sworn by Abok Elisha Onyango I state that the allegations are not true. The list that the Union relies on for such election is provided by the University of Nairobi through their management but not the union. The list contains names of those who still in Employment of University of Nairobi, for which Union dues are deducted hence members of KUDHEIHA Union.l.That in response to paragraphs; 11-16 of the supporting Affidavit in support of the Petition sworn by Abok Elisha Onyango I state that the allegations are not true. The petitioners have failed to prove how the Elections were marred with violence, vote rigging and violation of their rights as alleged.m.That in this Petition, the Petitioners' alleged violation of Fair Administration Act and their rights which are based on a mere assertions, but there is no tangible evidence provided by the petitioners to show that the 1st respondent violated any such provisions of the Constitution or any other written Law. The manner in which they are breached.n.That in this Petition, the Petitioners' alleged violation of Fair Administration Act and their rights which are based on a mere assertions, have failed to demonstrate how any of these provisions has been violated and none is satisfactorily pleaded by the Petitioners. That the Petition does not raise any issues on violation of the Constitution to meet the threshold of a constitutional petition. The petitioners failed to give particulars of the said contravention within the body of the Petition. The Petitioners have failed to satisfy the threshold of specificity as espoused in the celebrated cases of Anarita Karimi Njeru V Republic (NO. 1) [1979] 1 KLR 154 (see page 156 of that Authority), ANd Mumo Matemu Trusted Society Of Human Rights Alliance, Civil Appeal No. 290 OF 2012 [2013] eKLR. (At page 26 paragraph 87(3) of that Authority.o.That the petition does not raise any issues on violation of the rights of the petitioners’ who duly participated in the Election but lost. As held by the Court in the case of Francis James Ndegwa -vs-tetu Dairy Co-operative Society Limited [2016] eKLR, the Court reiterated that not all breaches of the law pave way for a constitutional petition. The present petition should be struck out for failing to meet the specificity threshold of a constitutional petition. 25.The court’s attention was drawn to the petition challenging the election held on 7th to 8th March 2025 in paragraph 20. The prayers were with respect to elections of 7th to 8th March 2025. The supporting affidavit referred to the election from 17th to 18th March 2025. The Secretary General, in an affidavit, denied there was an election on 7th to 8th March 2025. From the evidence by the petitioners, it was obvious there was no election held on 7th to 8th March 2025. The petitioners never bothered to amend their petition despite the response. Exhibit “AE2-2” by the petitioner was a letter informing the Vice Chancellor of the University of Nairobi that the election had been cancelled and would be conducted on 17th March and 18th March 2025.The Petitioners produced a letter received by the Respondents on 13th March 2025 where 3 issues were raised-‘1). A full and transparent circulation of all relevant memos to ensure equal access to information for all parties involved.2)Provision of the cleaned membership register to ensure the accuracy and verifiability of the voting list.3)Immediate conduction of civic education sessions to equip members with the necessary information to make informed and responsible voting decisions.’’ The letter authored by the 1st petitioner requested that the issues be addressed to ensure fair, transparent and credible elections. 26.The petitioners further produced a list of members' union dues deductions and agency dues. The Petition stated one James Obondo under agency participated in voting.“AEO’5” was the agency list, and Mr. Okere James Opondo is listed at No. 14. The 1st Petitioner also stated some voters were retired or had been promoted to higher levels, thus not eligible to vote. The court noted that the list was just on union dues and agency deductions. There was no indication the list was used as the voter register. 27.Conversely, the 1st respondent’s Secretary General states there were no incidents of malpractices or rigging reported on the dates of the election, and allegations only arose on the petitioners' failing to win. The Secretary General stated that the union was not required to publish the list of voters since the list was held by the employer, the University of Nairobi. The Secretary General produced a copy of what he said was the list published which indicated the 1st Petitioner under No. 495 “exhibit AI”. The court confirmed that the name of the petitioner appeared on the register produced by the respondent at No. 495. 28.The court confirmed the petitioner did not attach the voters' register as alleged. The Secretary General denied the allegation of retired persons having voted and reiterated that the voters were in employment and being deducted as per the list of voters provided by the employer (Exhibit “A1”).The Respondent produced a list of persons who voted and had signed against their names on 17th March 2025.The court did not find the name of Okero Opondo stated to have voted while under agency. There was no reply to the replying affidavit of the Secretary General. 29.This was a petition to challenge the 1st respondent’s University of Nairobi’s KUDHEIHA branch election. The elections are to be conducted in accordance with Section 34 of the Labour Relations Act, to wit:- “34.(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.” There was no evidence placed before me to prove violation of the forgoing provisions of the union constitution. The 1st respondent placed before the court the impugned voters register which had no evidence of any agency member or prove of any retired person having voted. The court believed that all the voters on the 17th March 2025 were valid employees, as the union deductions list was annexed. 30.On evaluation of evidence before the court, I did not find evidence of the alleged malpractice. There was no evidence of violation of the provision of the constitution of the union. Further, the petition was fatally flawed as it sought to challenge an election held on 7th March 2025, while elections were held on 17th March 2015. The petition is held to lack merit and is dismissed. The petitioners are members of the 1st respondent union, and are seeking to promote harmony within the union. I make no orders as to costs. The file is marked as closed 31.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026.JEMIMAH KELIJUDGE.In The Presence Of:Petitioners – absent1st respondent - Maina for Union2nd respondent – Jepkemei h/b Akuno