https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1448

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI JUDICIAL REVIEW APPLICATION NO.E027 OF 2026 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS FOR CERTIORARI AND PROHIBITION AND IN THE MATTER OF AN APPLICATION UNDER ARTICLES 1, 2, 3, 10, 22, 23, 25, 27, 47, 50, 159 AND 165 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF AN APPLICATION UNDER ARTICLES 2. 31(1) AND 34(2)(a) OF THE LABOUR RELATIONS ACT AND IN THE MATTER OF AN APPLICATION UNDER ARTICLES 1.0.1, 7.0, 8.2.0, 8.6.0. 8.7.1, 12.0, 13.0, 14.0, 17.0, 22.0, KENYA UNION OF POST PRIMARY EDUCATION AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS BETWEEN REPUBLIC……………………………………….………………………………….APPLICANT VERSUS REGISTRAR OF TRADE UNIONS………………………………………...1ST RESPONDENT THE SECRETARY GENERAL, KUPPET………………………………....2ND RESPONDENT SKENYA UNION OF POST PRIMARY EDUCATION TEACHERS.........3RD RESPONDENT SAMBURU KUPPET BRANCH EXECUTIVE COMMITTEE…………...4TH RESPONDENT SAMBURU LABOUR OFFICER…………………………………………..5TH RESPONDENT PETER LTANTIRAN LETIPILA…………………………………………...6TH RESPONDENT SAMBURU ACTING EXECUTIVE SECRETARY…………………….....7TH RESPONDENT CEO/SECRETARY TEACHERS SERVICE COMMISSION……………...8TH RESPONDENT AND WILLIAM LENGOYIAP……………………………………………EX PARTE APPLICANT CORAM Before Lady Justice Jemimah Keli C/ A Otieno RULING 1. The exparte applicant filed before the court a Notice of Motion dated 5th March 2026 brought under the Civil Procedure Rules order 53(3), Section 3A Civil Procedure Act Cap 21. Section 8 and 9 of the Law Reform Act Cap 26 and all other enabling powers and provisions of law for orders THAT:- 2. The Chamber Summons be certified URGENT due to the urgency pleaded herein and be heard Exparte at first instance. 3. Pending the hearing and determination of this Application, the Honourable Court be pleased to quash the registration of the newly registered Samburu KUPPET Branch Executive Committee members by the 1st Respondent until the substantive Judicial Review is determined. 4. Pending the filing, hearing and the final determination of the substantive Judicial Review Chamber Summons herein, or until further Court Orders, leave so granted do operate as a stay against the announced results of Samburu KUPPET Branch elections by the 5th Respondent on 22nd February 2026. 5. Pending the hearing and determination of this Application, the Honourable Court be pleased to issue an order reversing all the KUPPET members transferred to AGENCY back to KUPPET membership before a by-election by both the 8th and 2nd Respondents. 6. Pending the hearing and determination of this Application, the Honourable Court be pleased to stay the 3rd Respondent's National elections until KUPPET constitution article 13(a)(xiv) is complied with. 7. Pending the hearing and determination of this Application, the Honourable Court be pleased to stay the 3rd Respondent's National elections until after Samburu KUPPET Branch by-elections. 8. Leave be granted to the Ex Parte Applicant to seek by way of Judicial Review, that an order of certiorari do issue, to bring to this Honourable Court for purposes of being quashed, and to be quashed, the announced results of Samburu KUPPET Branch elections by the 5th Respondent on 22nd February 2026. 9. Leave be granted to the Exparte applicant to seek by way of Judicial Review, that an order of prohibition do issue, prohibiting the 1st Respondent herein and any person acting under its behest or direction, in registering the Samburu KUPPET Branch Executive Committee members 10. Leave be granted to the Ex Parte Applicant to seek, by way of Judicial Review. an order of Mandamus compelling the 7th and 2nd Respondents to reinstate all teachers moved illegally to agency status back to the KUPPET membership register. 11. The Honourable Court be pleased to make or issue such orders as it may deem fit to grant. 12. Consequent to the grant of the prayers above the Honourable Court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders, and/or favour the cause of justice. Grounds of the application 1. That I wrote a letter through email to both the 1st and 2nd Respondents about the anomalies in KUPPET Samburu branch elections and they refused to act on the letter dated 23rd February 2026. (Attached and marked WL01 is a letter to the 1st and 2nd respondent dated 23/02/2026) 2. The 1st Respondent wrote a circular dated 25th September 2025 directing all trade unions to send to the labour officers a register of members at least 60 days to the elections day for voter verification. (Attached and marked WL02 is a circular from the 1st respondent about elections guidelines). 3. The 2nd and 6th Respondents refused to comply with the circular of the 1st Respondent by not supplying the register to the Samburu labour officer at least 60 days to the elections day. They had adequate time to comply from 25th September 2025. 4. The KUPPET constitution article 11.3.0(g) mandates the 2nd Respondent to prepare the union register and therefore he was in a position to comply with the circular of the 1st Respondent. 5. The KUPPET constitution article 11.13.0(e) mandates the 7th Respondent to maintain branch membership register and therefore he was in a position to comply with the circular of the 1st Respondent in supplying the membership register to the 5th Respondent. 6. The 5th Respondent is mandated by KUPPET constitution article 13(a)(x) to preside over KUPPET branch elections. In furtherance of this rule, the 5th Respondent invited Samburu KUPPET Branch candidates for a meeting on 16th February 2026 (Attached and marked WL03 is an invitation letter from the 4th respondent dated 16/02/2026). 7. That during the said meeting, the 5th Respondent informed the candidates that the Union had failed to comply with the 1st Respondent's circular on availability of branch membership register at least 60 days to elections for membership verification. 8. The 5th Respondent proceeded to conduct elections irregularly by ignoring the fact that the Union had refused to comply with the circular of the Registrar of Trade Unions without any clarification given. 9. That the 5th Respondent proceeded to forward the results of the impugned elections to the 1st respondent for registration. (Attached and marked WL13 is the communication from the 5th respondent to the 1st respondent) 10. That Sammy Chelang'a the National Secretary Tertiary irregularly supplied unverified membership register on the elections day, therefore denying KUPPET members opportunity to verify their membership in advance. 11. That many KUPPET members' names were missing in the register and therefore they were denied their constitutional rights to participate in KUPPET elections as provided in National constitution article 41(2) (c) and Labour Relations Act 4(2)(b). (Attached and marked WLO4 are the witness statements) 12. That there was massive voter bribery. The newly and allegedly elected Executive Secretary, the 6th Respondent visited schools to campaign and gave KUPPET members up to five thousand shillings each as a bribe to vote for him. (Attached and marked WL05 are the witness statements) 13. That the voting arrangements were such that the agents could see who the voter voted for. There was no privacy in ticking the ballots intentionally meant to intimidate those who had received bribes to vote as directed. 14. That there were no polling booths to protect the secrecy of the vote as provided in the national constitution 81(e) (i) and (ii) for free and fair elections. 15. KUPPET National officials sent money to their supporters in the branches to facilitate voter bribery through KUPPET National Treasurer. (Attached and marked WL06 is a screenshot of a WhatsApp chat) 16. That the facilitation of voter bribery by KUPPET National officials was communicated through a WhatsApp post of the KUPPET National Treasurer and a screenshot of the same was taken through my phone whose security details are attached as certificate of electronic evidence (Attached and marked WL07 is a screenshot to show security details of my electronic device28. That the 8th Respondent, the Teachers Service Commission connived with the Union to irregularly change KUPPET membership status to KUPPET agency paying status of some selected members to deny them their constitutional rights to participate in union elections. 17. That in all other branches, online TSC payslips provided by the 8th Respondent were used to identify genuine members because the KUPPET register does not possess the national identity card number of the individual Members. 18. That the Union relies entirely on the list of the members who paid monthly union dues from the Teachers Service Commission from the list authorized by the 8th Respondent to be given to 2nd Respondent. 19. That the manipulation of KUPPET membership during elections time by the commission has never happened before implying that the current TSC Secretary and Chief Executive Officer Ms Eveleen Mitei personally authorized the illegality and therefore it is a confirmation that she is extremely corrupt and partisan. 20. The manipulation of KUPPET membership affected very many branches and brings into question the credibility of the whole elections process and the impact will extend to the national elections. That many branches affected wrote to both the 2nd and the 8th Respondents who failed to correct the anomaly. (Attached and marked WL08 are letters from various KUPPET branches). 21. The Employment and Labour Relations Court at Narok, in Petition E001 of 2026, issued orders directing that all persons who had been converted to agency fee status be reinstated as KUPPET members and be permitted to participate in the Narok Branch elections. In contrast, in the Samburu Branch elections, members similarly converted to agency fee status were denied the opportunity to participate in a constitutionally protected union activity. (Attached and marked WL11 is a court ruling for ELRCPET/E001/2026 at Narok) 22. That the margin between the purported winner and the Applicant stood at 19 votes, while 142 members, largely drawn from the Applicant's stronghold, were unlawfully denied the right to vote, and had those members participated in the election there was no possibility of the Applicant losing the election. (Attached and marked WL12 is a list of members denied their constitutional right of voting.) 23. That, surprisingly during Samburu KUPPET elections, the TSC online payslip was not used clearly with the intentions of allowing non-members to vote. Every vote should be verifiable.37. That the names of the genuine members with TSC payslips were missing in the irregularly delivered register used and they were denied their constitutional right to participate in union activities including voting. 24. That the 2nd Respondent deliberately failed to provide a register of those teachers paying agency as was the case in other branches to deliberately deny those transferred to agency the chance to confirm their change in membership status. That the Applicant wishes to contest the position of the KUPPET National Chairman during the forth coming elections currently held by Hon Jeremiah Omboko Milemba the Member of Parliament of Emuhaya constituency and who triples up as the UDA Deputy Secretary General. 25. The union convened a National Governing Council to approve both the KUPPET branch and national elections dates and venues as provided by KUPPET constitution article 13(a)(xiv).The KUPPET constitution article 13(a)(xiv) says that "the Secretary General shall issue notices of national and county branch elections guided by the timetable prepared by the National Executive Board in consultation with National Governing Council". 26. The said National Governing Council meeting approved a timetable which gives branch elections' dates and venues but failed to include a date and venue of the national elections in contravention of KUPPET constitution article 13(a)(xiv) and therefore there is no valid date and venue of the KUPPET National elections. (Attached and marked WL09 is the approved KUPPET elections schedule). The exparte applicant filed an affidavit in support of the application dated 5th March 2026, where he produced Correspondence and documents in relation to the elections of the KUPPET SAMBURU BRANCH. Response 1. The application was opposed by the 2nd ,3rd,4th,6th and 7th respondent vide grounds of opposition dated 11th March 2026 as follows- the 2nd, 3rd, 4th, 6th & 7th Respondents shall on the Hearing of William Pengoiyap's Application dated 5th March, 2026 oppose the same on the following GROUNDS and other grounds that may be adduced at the hearing thereof: - 1)The ex-parte Applicant being disgruntled with the decision of the 1st Respondent to register the KUPPET @amburu Branch new officials, the legal route is stipulated in Section 30 of the Labour Relations Act. His ecourse lies in a Section 30 Appeal to the Registrar of Trade Unions. 2) The Application falls short of the threshold for grant of leave under Judicial Review to file substantive Motion. At the leave stage the Applicant needs to demonstrate that the intended judicial review raises an arguable Case deserving further judicial investigation, and that the application is not frivolous, vexatious, or an abuse of the court process. 3)The Samburu Branch elections were conducted in strict adherence to Section 34 of the Labour Relations Act and the KUPPET Constitution, overseen by a designated Labour Officer as the Retiming Officer. 4) The Voter Register used during the election was assessed for correctness by all the candidates and their respective agents before the voting exercise. Any discrepancies alleged by the Applicant are unsubstantiated and do not meet the high threshold required to invalidate a democratic process5. Mr. Lengoiyap has misconceived "Agency" status. The employer TSC acts independently in the remittance of union dues upon consent of the teacher. The classification of certain members to agency status is a statutory administrative process under the Labour Relations Act and does not constitute "tampering" by the Union. 6) There is no proof of Electoral Malpractice. The allegations of voter bribery and lack of secrecy are generic, lack specific particulars of the alleged givers and takers, and are a mere afterthought by a candidate who lost a democratic process. 7). The prayer to stay the KUPPET National Elections is an attempt to paralyze the entire Union's operations based on a localized branch dispute, which is contrary to the principle of proportionality. 8). In line with Article 41 of the Constitution of Kenya and ILO Convention No. 87 (Freedom of Association), he Court should refrain from undue interference in the internal management and democratic transitions of Fade unions unless a gross violation of the law is proven, which Mr. Lengoiyap has failed to do. 9) The ex-parte Applicant has approached the Court with "unclean hands" as Mr. Lengoiyap, a former official, misusing the Judicial Review process in an attempt to overturn a democratic defeat rather than to correct alleged procedural illegality. DECISION ### The instant application by way of Notice of Motion seeks leave of the court to file a judicial review application. The applicant is brought under Order 53 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act. 1. The cause of action is an allegation of denial of the right to vote on the basis of being placed on the agency list. This court rendered a decision in NAIROBI ELRC.PET/E013/2026 on the agency dispute, and the matter is active before the court. The applicant further raises issues of dues to the branch, which is an active issue in ELRC PET NO. E008 OF 2024 and the petitioner is involved. The court at the outset states that the application is defective as leave has to be sought via chamber summons and not notice of motion. Order 53 of the Civil Procedure Rules states- ‘**Applications for mandamus, prohibition and certiorari to be made only with leave [Order 53, rule 1]** (1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule. (2) An application for such leave shall be made *ex parte* to a judge in chambers, and shall be accompanied by — (a) a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and (b) affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.’ The exparte applicant ought to have filed a chamber summons application seeking leave of the court to file a judicial review application for an Order of Mandamus. The instant application is held to be fatally defective. 1. The court further holds that the proper way to approach the court was vide election petition under 34(4) of the Labour Relations Act which provides that disputes arising from election of trade union officials or connected directly or indirectly to the elections may be referred to the Court and as guided under the 2025 Employment and Labour Relations Court(Trade Union Election Disputes) Procedure and Practice Directions. The application is struck off for being defective. The court grants the ex parte applicant leave to join the pending election petition, Petition No. E013 of 2026 if he so wishes. I make no order as to costs in the application as the applicant is a member of the KUPPET and his application was not frivolous. The file is marked as closed. 2. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 22nd DAY OF MAY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Exparte Applicant : - in person 1st Respondent: absent 2,3,4 and 7th respondents- Ms Akello