https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2227

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA ELRC CAUSE NO. E066 OF 2026 IN THE MATTER OF: SECTION 35(6) OF THE LABOUR RELATIONS ACT, NO. 14 OF 2007 AND IN THE MATTER OF: ARTICLE 15(B), ARTICLE 12, ARTICLE 18 AND THE CONSTITUTION OF THE DOCK WORKERS UNION BETWEEN SULMAN OTIENO OWUOR.................. CLAIMANT VERSUS MOHAMMED MWASERA.............................. 1ST RESPONDENT FREDERICK BAYA................................ 2ND RESPONDENT FATMA SHAFFI....................... 3RD RESPONDENT JOSHUA KASERA................... 4TH RESPONDENT KASSIM WENDO......................... 5TH RESPONDENT MUSA RAJAB..................................................... 6TH RESPONDENT JAMES WANJE..................................................... 7TH RESPONDENT MARKO ADEN..................................................... 8TH RESPONDENT YVONNE NGUTU........................... 9TH RESPONDENT **BEFORE: HON. MR. JUSTICE OCHARO KEBIRA** *(Ruling on the Claimant's Notice of Motion dated 13th July 2026)* **RULING** **A. Introduction** 1. Institutions do not administer themselves; they are given life by the individuals who occupy their organs from time to time. Yet the legitimacy of an institution such as a trade union's Elections Board cannot be permitted to become a perpetually moving target, vulnerable to challenge by any person with an interest in disrupting its work, merely because the personal circumstances of one or more of its members have changed since they were called upon to act. This Ruling considers precisely that tension: whether the Elections Board which this Court, by its Judgment delivered on 17th June 2026, directed to conduct fresh elections for the Dock Workers Union (“the Union”) may be said to have ceased to exist in law because some of its members have, in the interim, been promoted into management positions with their employer. 2. The application before me is brought, notably, by the very individual whose election as General Secretary of the Union this Court nullified in ELRC Petition No. E009 of 2026, and whose subsequent resistance to the implementation of that Judgment has already been the subject of two prior decisions of this Court. That history — the Judgment of 17th June 2026, and the Ruling of 20th July 2026 declining a stay of its execution — is not incidental background; it supplies the context, and, as will become apparent, a substantial part of the basis, for the disposal of the present application. 3. Four matters fall for determination: first, what effect, if any, attaches to the Respondents' failure to file a replying affidavit or grounds of opposition to the Notice of Motion dated 13th July 2026; second, whether this Court's direction in the Judgment of 17th June 2026, that “the Election Board that was in office prior to the sham elections” conduct the fresh elections, is to be understood by reference to that Board's composition as it stood before the impugned election of 4th April 2026, or by reference to its composition as it stands today; third, whether the individual current status of the Board's members — including any subsequent promotion into management — bears upon the exercise this Court directed be carried out; and fourth, whether, and to what extent, the fact that the matters raised in this suit were live, or ought to have been raised, in ELRC Petition No. E009 of 2026 bears upon the propriety of the interlocutory relief sought in this fresh cause. **B. Background: ELRC Petition No. E009 of 2026** 4. By its Judgment delivered on 17th June 2026 in ELRC Petition No. E009 of 2026, this Court declared the purported elections of the Union's national officials, held on 4th April 2026, to be a sham, null and void, and nullified them accordingly. It directed that fresh elections be conducted within sixty (60) days, and — critically for present purposes — it directed that the Election Board that was in office before the sham elections would conduct and oversee those fresh elections. 5. That direction was subsequently the subject of an application for a stay of execution pending an intended appeal, brought by the 2nd Respondent in that Petition, Salman Otieno Owuor — who appears before me in these proceedings as the Claimant, under the name Sulman Otieno Owuor — together with certain Interested Parties. By a Ruling delivered on 20th July 2026, this Court dismissed that application, holding that the Judgment remained valid, binding and in full force, that the nullity of the 4th April 2026 election was a nullity ab initio incapable of being preserved by a stay, and that the public interest in the orderly and lawful governance of the Union weighed decisively against further delay. 6. In that same Ruling, the Court noted — but declined to determine — a dispute, raised for the first time through Supplementary Affidavits filed in support of the stay application, touching on the composition of the Elections Board directed to conduct the fresh elections. The Court observed that the dispute fell to be addressed in another, more appropriate forum, it not having been properly pleaded or ventilated in a form permitting its determination at that stage. 7. Subsequently, upon an application by the 3rd Petitioner in that Petition for implementation and enforcement directions, this Court found that the 2nd Respondent's resistance to implementation of the Judgment had placed the sixty-day compliance period at real risk of lapsing without compliance, granted specified implementation directions in favour of the National Executive Committee and the National Chairperson of the Union. 8. It is against that detailed, and by now extensively litigated, background that the Claimant, having failed to secure a stay of the Judgment, and having been the subject of implementation directions issued against him, now brings this fresh cause — naming, not the Petitioners or the National Executive Committee, but the nine individual members of the Elections Board itself as Respondents — seeking, in substance, to have that Board declared incapable, in law, of discharging the very mandate this Court conferred upon it. **C. The Present Suit and Application** 9. By a Memorandum of Claim and a Notice of Motion, both dated 13th July 2026, brought under, among other provisions, section 35(6) of the Labour Relations Act, No. 14 of 2007, and Articles 15(b), 12 and 18 of the Constitution of the Union, the Claimant sues the nine named Respondents — Mohammed Mwasera, Frederick Baya, Fatma Shaffi, Joshua Kasera, Kassim Wendo, Musa Rajab, James Wanje, Marko Aden and Yvonne Ngutu — said to comprise, or to purport to act as, the members of the Union's Elections Board. 10. The Claimant's case, as developed in his Written Submissions filed in support of both the Notice of Motion and the Memorandum of Claim, is that Article 15 of the Union's Constitution establishes the Elections Board and prescribes its composition at nine persons; that six of those nine — he names Fatma Shaffi, Edwin Birech, Joshua Kasera, Musa Rajab, Marko Aden and Yvonne Ngutu — have, since their appointment, been promoted into management positions with their employer, the Kenya Ports Authority, and have thereby ceased to be unionisable employees and, in consequence, to qualify for continued service on the Board; that this fact is said to be confirmed by correspondence between the Union and the Kenya Ports Authority, and to have been independently noted by the Registrar of Trade Unions in a letter dated 9th July 2026 questioning the legality of the Board's composition; and that, notwithstanding this asserted incapacity, the Respondents have continued to hold themselves out as the Elections Board, culminating in a Notice dated 10th July 2026, issued by the 3rd Respondent, declaring all elective offices vacant and commencing a fresh nomination and election process. 11. The Claimant submits that a body which has lost the constitutionally prescribed majority of its qualified members ceases to exist in law; that none of the Respondents can rely on historical appointment to justify continued exercise of powers reserved exclusively to a constitutionally composed Board; that the Notice of 10th July 2026, and everything flowing from it, is accordingly unconstitutional, ultra vires, and void ab initio; and that this Court should so declare, and should restrain the Respondents from taking any further steps under it. 12. By way of the Notice of Motion, the Claimant seeks, pending the hearing and determination of the suit, orders in terms materially identical to the declaratory and permanent injunctive relief claimed in the Memorandum of Claim — namely, declarations that the Elections Board is not lawfully constituted, that the Respondents lack authority to act as its members, and that the Notice of 10th July 2026 is void; and orders restraining the Respondents from issuing notices, convening meetings, calling for nominations, or otherwise purporting to act as the Elections Board, pending the final determination of the suit. 13. In support of the application, the Claimant relies on **Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR**, for the proposition that legal authority derives exclusively from the constitution or statute creating it; and **Speaker of the National Assembly v Karume [1992] KLR 21**, for the proposition that where a constitutive instrument prescribes the manner in which a power is to be exercised, that procedure must be followed strictly; on **Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169**, for the proposition that a void act is a nullity from inception; and, on the requirements for interlocutory injunctive relief, on the classical formulation in **Giella v Cassman Brown & Co. Ltd [1973] EA 358,** as elaborated in **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.** 14. None of the nine Respondents has filed a replying affidavit or grounds of opposition, notwithstanding the opportunity afforded by the Rules of this Court, and the Civil Procedure Rules applicable thereto, for a respondent to an interlocutory application to place before the Court its version of events or its legal objections to the relief sought. The application is, in that narrow procedural sense, unopposed. **D. Issues for Determination** 15. The following issues arise for determination: (a) What effect, if any, attaches to the Respondents' failure to file a replying affidavit or grounds of opposition to the Notice of Motion; (b) Whether this Court's direction that “the Election Board that was in office prior to the sham elections” conduct the fresh elections falls to be assessed by reference to the Board's composition before the impugned election of 4th April 2026, or by reference to its composition today; (c) Whether the individual current status of the Board's members bears upon the exercise this Court directed be carried out; and (d) Whether the history of ELRC Petition No. E009 of 2026 bears upon the propriety of the interlocutory relief sought in this fresh cause, and, applying the settled principles governing interlocutory injunctions, whether that relief should be granted. **E. Analysis and Determination** ***(i) The effect of the Respondents' non-opposition*** 16. I deal first with the consequence, if any, of the Respondents' failure to oppose the application. It is a common, and understandable, assumption that an unopposed application must succeed as a matter of course. That assumption is mistaken, and it is important to say so clearly, given the far-reaching nature of the orders sought — orders that would restrain nine named individuals from performing functions that this Court's own Judgment charged them with performing, and that would, in practical effect, suspend indefinitely the electoral process of a registered trade union with a membership far wider than the parties before me. 17. The burden of establishing entitlement to interlocutory relief rests, at all times, on the party who seeks it. That burden does not shift, diminish, or disappear because the opposite party has elected — for whatever reason, whether tactical, financial, or simple oversight — not to file a replying affidavit or grounds of opposition. Sections 107 to 109 of the Evidence Act codify the ordinary principle that he who alleges a fact must prove it; that principle does not admit of an exception for facts that happen to go unchallenged on the papers. A court called upon to grant an order must still satisfy itself, from the material properly before it, that the order is merited in fact and in law. 18. This principle finds a close analogue in the treatment the courts have given to default judgments. In **James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR,** the Court of Appeal cautioned that a claimant is not entitled, merely because the opposite party has failed to respond, to the relief sought where that relief is not, on its face, properly founded or sufficiently made out; a court retains, and must exercise, its own judgment on the propriety of what is sought, the other party's default notwithstanding. That logic applies with at least equal force to an interlocutory application for injunctive relief, where the consequences of an order granted in error may be considerably more difficult to unwind than a default judgment regularly set aside. 19. There is, moreover, a further and independent reason for particular caution in this case. The Respondents are not the only persons with an interest in the outcome. The wider membership of the Union — thousands of workers whose right under Article 41(2)(c) of the Constitution to participate in free and fair elections for their union leadership is the very right this Court's Judgment of 17th June 2026 was fashioned to protect — are not parties to this suit, yet stand to be directly affected, and potentially prejudiced, by any order suspending the work of the body charged with conducting their elections. Where the practical consequence of a prayer is to affect the interests of persons not before the Court, the Court's duty to satisfy itself independently of the merits is, if anything, heightened rather than relaxed by the absence of opposition from the named parties. 20. I proceed, therefore, to consider the application entirely on its merits, according the Claimant neither more nor less than what the pleadings, the supporting affidavit and the submissions, properly scrutinised, can sustain. ***(ii) The backwards-looking character of the Judgment's direction as to the Elections Board*** 21. I turn to the central plank of the Claimant's case: that the Elections Board directed by the Judgment of 17th June 2026 to conduct the fresh elections has ceased, in law, to exist, because six of its nine members have since been promoted into management and thereby, on the Claimant's submission, ceased to satisfy the qualifications prescribed by Article 15 of the Union's Constitution. 22. The starting point must be the Judgment itself, and the precise language it employed. This Court did not direct that “the Elections Board, as constituted from time to time” or “the Elections Board however presently composed” conduct the fresh elections. It directed, in specific and deliberately chosen terms, that the Election Board that was in office prior to the sham elections would conduct and oversee them. That formulation was not accidental, and it is not, in my view, susceptible of the reading the Claimant urges. 23. The purpose of that direction was to identify a body whose legitimacy was not itself in question — a body whose composition predated, and was therefore untainted by, the very electoral process this Court had found to be a sham. By anchoring the mandate to the Board “that was in office prior to the sham elections,” the Judgment fixed a historical reference point: the Board's composition as it stood immediately before 4th April 2026. That reference point was chosen precisely because it represented the last uncontested baseline from which fresh, lawful elections could be directed without this Court first having to resolve a fresh dispute over who properly constituted the body to conduct them. The direction was, in that sense, deliberately backwards-looking: it looked to the Board as it was, not as it might subsequently become. 24. It follows, in my view, that the appropriate inquiry into the Board's qualification to discharge the mandate conferred upon it is an inquiry into its status as at that fixed historical point — immediately prior to the impugned election — and not a continuing, open-ended inquiry into the personal circumstances of its individual members as those circumstances evolve, months later, in the course of discharging that mandate. To hold otherwise would convert what this Court intended as a stable, historically anchored point of reference into a perpetually shifting target, whose validity could be reopened at will by any person able to point to a subsequent change in the professional or personal circumstances of one or more of its members. 25. This construction is reinforced by the practical consequence of the alternative. If the Board's continuing legal existence depended on the perpetual eligibility of each of its nine members, tested afresh at every moment against evolving circumstances entirely unconnected to the electoral process it was appointed to oversee, its legitimacy would never be secure, and its work could be brought to a halt at any time by a litigant — as has, in substance, occurred here — pointing to changes of employment status that have nothing whatsoever to do with the integrity of the electoral process itself. Constitutional and statutory bodies are, as the Claimant himself correctly submits by reference to **Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others** (supra), creatures of the instruments that establish them; but it is equally true, and of equal significance, that those instruments — and orders of this Court made in aid of them — must be construed sensibly and purposively, so as to give effect to the object they were designed to achieve, rather than to defeat it. 26. I have, in reaching this view, also had regard to the text of Article 15 of the Union's Constitution itself. Article 15(1)(d) requires only that persons nominated for election to the Board have no intention of vying for, and no interest in, any position in the Union for the period of their service — a qualification addressed to independence and impartiality at the point of nomination, not to continuing eligibility for ordinary Union membership thereafter. More tellingly, Article 15(1)(e) expressly permits persons who are not members of the Union at all to be nominated to the Board. That provision sits uneasily with the Claimant's premise — that a member's promotion into management, and consequent loss of ordinary “unionisable” status, automatically disqualifies him or her from continued service on the Board — since the Constitution itself contemplates service on the Board by persons who were never Union members in the first place. Nor does Article 15 contain any provision addressing cessation of Board membership analogous to Article 14(1)(e), which expressly specifies the events upon which a Trustee ceases to hold office, or Article 12(1)(k) and (l), which do likewise for members of the National Executive Committee. Where the framers of this Constitution intended that a change in an office-holder's circumstances should terminate his or her tenure, they said so, in terms. They did not say so in respect of the Elections Board. 27. On the material before me, therefore, the premise underlying the Claimant's central contention — that the Board “ceased to exist in law” upon the promotion of six of its members — finds no clear support in the very Constitution he invokes, and sits uneasily with the deliberately backward-looking terms of this Court's own Judgment. I do not say, finally and for all purposes, that the contention must fail; that is a matter for determination at the trial of the suit, upon a full evidentiary record and after the Respondents have had the opportunity, which they retain, to be heard. I say only that, assessed as a matter of prima facie likelihood for purposes of the interlocutory relief now sought, the contention is considerably weaker than the Claimant's submissions suggest. ***(iii) Relevance of the members' current individual status*** 28. Closely related to the foregoing is the question whether the individual, current circumstances of the nine named Respondents — in particular, the promotions said to have been secured by six of them — bear upon the exercise that this Court's Judgment directed be carried out. 29. In my view, they do not, at least not in the manner the Claimant contends. The exercise directed by the Judgment of 17th June 2026 is a specific, time-limited, and clearly defined task: the conduct and oversight of fresh elections for the Union's national officials, to be completed within a fixed period. It is not an open-ended tenure of office to be measured against the ordinary, continuing qualifications for Union membership generally. 30. It is telling that not one of the nine Respondents has come before this Court, or is shown on this record to have communicated to the Union, the Registrar, or any other party, that his or her promotion, or any other change in personal or professional circumstance, renders him or her unable, unwilling, or unsuited to complete the specific task of overseeing the fresh elections. The objection to their continued service comes not from within the Board, nor from any concern going to their capacity, integrity or independence in discharging that task, but from a litigant outside the Board altogether — one whose own election the Board's predecessor composition was, in essence, appointed to unwind, and who now asks this Court to accept that a status change of which the Board's own members make no complaint should nonetheless incapacitate the entire Board from completing its assigned task. 31. A distinction must be drawn between a formal, status-based objection of this kind, and a genuine, functional incapacity going to a Board member's ability to discharge the mandate conferred. The former, unaccompanied by any suggestion of actual unfitness, bias, or inability to act, does not, in my provisional assessment, furnish a sufficiently compelling basis to restrain, by interlocutory order, the completion of an electoral process this Court has already directed, and whose timeline — as this Court has previously observed in the related proceedings — is a real and diminishing one. 32. I accordingly find that the current individual status of the Respondents, absent any suggestion from within their own ranks of resulting incapacity to perform the specific task directed by the Judgment, does not, at this interlocutory stage, warrant the drastic remedy of restraining the entire Board from completing that task. ***(iv) The bearing of ELRC Petition No. E009 of 2026 on the propriety of a fresh suit*** 33. I turn to a further consideration, which bears not on the substantive merits of the suit — a matter I am careful not to pre-judge, and upon which I make no final finding — but on the propriety, at this interlocutory stage, of the relief sought in this particular cause, brought in this particular form. 34. The composition and legitimacy of the Elections Board directed to conduct the fresh elections was not an entirely new subject when this suit was filed on 13th July 2026. It had already been raised — by the very Claimant who now brings this suit, among others — through Supplementary Affidavits filed in the stay application in ELRC Petition No. E009 of 2026, and was addressed, if only in passing, in this Court's Ruling of 20th July 2026, which observed that the dispute over the Board's composition fell to be canvassed in another, more appropriate forum. 35. That observation was not, and should not be read as, an invitation to commence an entirely fresh and free-standing cause of action, naming the nine individual Board members personally as Respondents, and raising, in substance, the identical composition objection already flagged, and left open, in the earlier proceedings. The law provides a range of avenues through which such a dispute could, and in my view more appropriately should, have been ventilated: by a focused application within ELRC Petition No. E009 of 2026 itself, invoking this Court's continuing jurisdiction to give effect to, and resolve difficulties arising in the implementation of, its own Judgment; or through the Union's own internal dispute resolution mechanisms established under its Constitution. 36. To permit a dispute of this character — arising from, and substantially overlapping with, matters already live in ELRC Petition No. E009 of 2026 — to be re-litigated as a discrete cause naming individual Board members personally is undesirable for reasons that go beyond the convenience of this Court. It multiplies proceedings touching the same underlying subject matter; it creates a real risk of inconsistent findings between two causes of this Court arising from a single, continuous dispute over the governance of the same trade union; and it permits a party who did not obtain the relief he sought in one cause to pursue, in substance, a further attempt at the same objective under a different case number and against different, individually named respondents. 37. I am mindful that the Claimant is entitled, as a matter of constitutional right, to access this Court and to have his grievances determined; nothing in these observations forecloses that right, nor determines the outcome of the suit he has brought, which will be heard and determined on its own merits, upon a full record, and with the Respondents afforded every opportunity — of which they have not yet availed themselves — to state their case. I say only that, for purposes of the discretionary, interlocutory relief presently sought, the existence of this closely related and substantially overlapping history is a material and legitimate factor bearing on the balance of convenience, and on whether this Court should, at a preliminary stage and without the benefit of a full hearing, restrain the Respondents from continuing to perform functions that this Court's own Judgment, and its subsequent Ruling and implementation directions in ELRC Petition No. E009 of 2026, have repeatedly affirmed must be performed, and performed without further delay. 38. That factor weighs against, rather than in favour of, the grant of the interlocutory relief sought. ***(v) Application of the Giella threshold*** 39. It remains to test the application against the settled principles governing the grant of interlocutory injunctions, correctly identified in the Claimant's own submissions: **Giella v Cassman Brown & Co. Ltd** (supra), as elaborated in Nguruman Limited v Jan Bonde Nielsen & 2 Others (supra), which confirms that an applicant must establish, sequentially, a prima facie case with a probability of success; that he stands to suffer irreparable injury not adequately compensable in damages; and, only where the Court remains in doubt on the first two limbs, that the balance of convenience favours him. 40. For the reasons given at paragraphs 21 to 32 above, I am not satisfied that the Claimant has established a prima facie case with a probability of success. The premise that the Board “ceased to exist in law” upon the promotion of six of its members sits uneasily with the deliberately backward-looking terms of the Judgment of 17th June 2026, finds no clear textual support in Article 15 of the Union's Constitution — which expressly contemplates non-member service on the Board and contains no provision terminating a member's tenure upon change of employment status — and is not supported by any suggestion, from within the Board's own ranks, of resulting incapacity. 41. On irreparable injury, I find the balance runs, if anything, against the Claimant. It is the fresh elections themselves — elections this Court has twice affirmed must proceed, most recently by extending the compliance period in the implementation Ruling in ELRC Petition No. E009 of 2026 — that stand to suffer irreparable harm from further suspension: the compliance period is a real, diminishing one, and the wider membership's constitutional right under Article 41(2)(c) to timeous, free and fair elections is directly at stake. Restraining the Board from proceeding risks precisely the harm this Court's earlier decisions were designed to avert. 42. On the balance of convenience, for the same reasons, and having regard also to the considerations discussed at paragraphs 33 to 38 above touching on the history of this dispute, I find that the balance favours allowing the Elections Board to proceed with the fresh elections, without prejudice to the final determination of this suit, rather than suspending that process at the instance of a litigant whose own election was nullified in the related proceedings, and whose resistance to the implementation of that nullification has already been the subject of adverse findings by this Court. 43. The application, tested against each of the three sequential Giella conditions, accordingly fails. **F. Disposition** 44. For the foregoing reasons, I make the following orders: (a) The Claimant's Notice of Motion dated 13th July 2026 is hereby dismissed. (b) For the avoidance of doubt, and without prejudice to the final determination of this suit, the Elections Board of the Dock Workers Union, as constituted immediately prior to the elections of 4th April 2026, may proceed to conduct and oversee the fresh elections directed by the Judgment of this Court delivered on 17th June 2026 in ELRC Petition No. E009 of 2026, including all steps consequent upon the Notice dated 10th July 2026, pending the hearing and final determination of this suit or further order of this Court. (c) Nothing in this Ruling determines, or shall be taken to determine, the merits of the Memorandum of Claim dated 13th July 2026, which shall proceed to hearing in the ordinary course. The Respondents shall have fourteen (14) days from the date of this Ruling within which to enter appearance and file their Statement of Defence, if so advised. (d) The parties shall take a mention date before the Deputy Registrar within thirty (30) days of this Ruling for further directions on the expeditious hearing of the suit. (e) The costs of the Notice of Motion dated 13th July 2026 shall abide the outcome of the suit. 45. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 31st DAY OF JULY, 2026. **OCHARO KEBIRA** **JUDGE**