https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1858

Rono v Secretary-General,KUPPET & 6 others (Judicial Review Application E002 of 2026) [2026] KEELRC 1858 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1858 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Judicial Review Application E002 of 2026 J Rika, J June 30, 2026 Between Daniel Rono Ex parte Applicant and Secretary-General,KUPPET 1st Respondent Branch Executive Secretary, Nakuru Kuppet Branch 2nd Respondent Nakuru County Labour Officer 3rd Respondent Registrar Of Trade Unions 4th Respondent Kuppet 5th Respondent Omboko Milemba 6th Respondent Teachers Service Commission 7th Respondent Judgment 1.The Applicant filed this Judicial Review Application, following what he states was a discovery, that names of Teachers from his ethnic community, were omitted from the register of voters, Nakuru Kuppet Branch. 2.He also discovered that the Employer, the Teachers Service Commission [TSC], had switched his trade union membership status to agency status, without his consent, in December 2025. 3.He urges the Court to grant an order of certiorari quashing the outcome of Nakuru Kuppet Branch elections; prohibition against implementation of the outcome; mandamus compelling the Union to hold fresh elections; conservatory order barring the holding of national elections; and costs of the application. 4.The Application is founded on the Affidavit of the Applicant sworn on the 12th February 2026, and other Supplementary Affidavits presented later. 5.He states that some Teachers’ trade union status, including his own status, was secretly converted by the TSC from direct membership to agency. 6.He states that this was done to deny the affected Teachers their right to join a trade union of their choice, and to freely participate in its activities, including its elections. 7.He faults the conduct of the Nakuru Branch elections on the ground that the 6th Respondent, Omboko Milemba, oversaw the exercise, usurping the role of the Labour Officer. 8.The voting was not verifiable. Agency fee paying Teachers were allowed to vote, despite them not being Kuppet members. The 1st Respondent issued an illegal circular, allowing agency Teachers to vote. 9.Elections in Mombasa and Kiambu Branches were stopped over similar violations, and the doctrine of precedent, binds the Court to similarly put a freeze on the process and outcome at Nakuru. 10.The 2nd and 5th Respondents engaged in bribery of members, ferrying them in buses. 11.Teachers from the Applicant’s ethnic community were profiled. They were targeted in a quest to transfer them to agency status, with a view to disenfranchising them. 12.The 2nd Respondent ought to have transported all Branch members and provided them with lunch reimbursements, in accordance with the trade union constitution. 13.The Registrar of Trade Unions went on to register elected officials illegally. 14.The Applicant submits that Section 30 of the Labour Relations Act 2007, requires decisions of the Registrar to be appealed against at the Industrial Court, but that the Industrial Court does not exist, making it impossible for the Applicant to present the contemplated appeal. 15.The Applicant submits that his right under the Constitution and the Labour Relations Act to vote and to vie for office, have been, or are likely to be violated by the Respondents. 16.He urges the Court to allow the Application. 17.General Secretary Akello Misori, swore a Replying Affidavit on 19th March 2026, replying on behalf of the 1st, 2nd, 5th, 6th Respondents and the Interested Party. 18.He terms the Application as inaccurate, with no concise issues, and is an abuse of the process of the Court. 19.The Applicant did not win any seat at the Nakuru Branch elections, and is misusing the judicial process, to challenge the will of the voters. 20.The County Labour Officer Nakuru was directed in Nakuru Petition E006 of 2026, to oversee the elections, exercised in accordance with the law. Members were allowed access to the voters’ register in accordance with the orders of the Court. The County Labour Officer confirmed compliance with the orders of the Court. 21.The alleged anomalies were also addressed by the Court through a ruling delivered on 5th February 2026, and the complaints are res judicata. The Nakuru County Labour Officer successfully conducted the elections, and the results were registered by the Registrar of Trade Unions. 22.The decision of the Registrar of Trade Unions, can only be challenged under Section 30 of the Labour Relations Act. 23.The Respondents further state that Judicial Review Application is concerned with the process, not the merit. The Application cannot resolve contested facts. 24.Misori states that Teachers determine whether to be classified as bona fide members, or agency members. There were no non-members who voted. 25.The Applicant is not eligible to vie for national office. He cannot therefore be allowed to interfere with elections for national office. 26.The allegation that members of his ethnic community were profiled and disenfranchised is shocking, untrue and political clout-chasing. 27.There was no bribery of members. The Respondent is authorized to make certain facilitation of members and to account for such facilitation, during the elections. The accounts are subject to audit, carried out by the Registrar of Trade Unions. 28.The case cited by the Applicant from E&LRC Mombasa, was concluded and dismissed, with the Court underlining the appeal mechanism on decisions of the Registrar, under Section 30 of the Labour Relations Act. 29.The 1st, 2nd, 5th, 6th Respondents and the Interested Party, pray the Court to dismiss the Application for Judicial Review with costs. 30.The Court has not traced any responses filed by the remaining Respondents. 31.Parties were directed to file and exchange submissions. The Application was last mentioned before the Court on 28th April 2026. The Court Finds: - 32.Although Nakuru is a cosmopolitan county, with all the Kenyan communities fairly represented, the Kuppet Branch elections appear to have revolved around ethnic mobilisation. 33.Teachers, who are professionals appear to have been bitten by the bug of ethnic mobilisation from our politicians, currently spreading in the Country like a bushfire. . 34.It is clear that the multiple Claims filed in this Court challenging the Nakuru Kuppet Branch elections, have involved the Applicant’s ethnic community against Kuppet Officials, and the concerned government agencies. 35.The persons elected on 7th February 2026, as shown in the extract from the Trade Unions Registry, dated 9th February 2026, supports the view that Teachers opted to mobilize voting, along ethnic lines. 36.The list includes Waita Simon Kimani, Chairman; Isaiah Macharia Mathenge, Vice-Chairman; Gitau Duncan Macharia, Executive Secretary; Simon Kirubi Wanjohi, Assistant Executive Secretary; James Kamau Macharia, Treasurer; Mercy Wamahiga Wamunyu, Assistant Treasurer; Agatha Waithera Muturi, Secretary Gender; Canvas Onkworu Moenga, Organizing Secretary; James Kariuki Mwangi, Secretary Secondary; Catherine Chemeli Sanga, Secretary Tertiary; Simon Kuria Mwangi, Secretary Junior Secondary; Phyllis Wanjuru Waweru, 1st Assistant Secretary Gender; Evans Okello Atitwa 2nd Assistant Secretary Gender; and Phelista Wanjiku Muraya, 3rd Assistant Secretary, Gender. 37.The overwhelming number of persons elected, appear to be from one ethnic community. They could comfortably sing ‘solidarity forever,’ in their mother tongue. In itself, this does not support the submission that the Applicant’s ethnic community was profiled and disenfranchised; most likely, the outcome was as a result of ethnic mobilization, rather than ethnic profiling and disenfranchisement. The ethnic group that mobilized the highest number of its kinsmen and kinswomen carried the day, leaving those who failed disenchanted. 38.Kuppet General Secretary submits that the will of the voters prevailed, and that the Application is an expression of an individual’s disgruntlement, having failed to secure a position. 39.The Court thinks it was the will of an ethnic bloc that prevailed, and the Application, like many placed before the Court surrounding Nakuru Kuppet Branch elections, is an expression of another ethnic bloc’s disgruntlement at the results, rather than an individual’s disgruntlement. 40.It is true that the Court, in Petition E006 of 2026 brought by Bett Kiprono, Jelangat Korir, and Cheruyiot Mutai against Kuppet, ordered the County Labour Officer Nakuru to avail the voters’ register to members, and to allow members to inspect the register. 41.There is evidence that this was done and that on 5th February 2026, the Court gave its greenlight for the conduct of Branch elections. Elections were conducted, overseen by the County Labour Officer, resulting in election of the persons named in the extract above. 42.There is nothing on record to show that elections were conducted by any of the national officials of Kuppet, as suggested by the Applicant. In any event why would Kuppet national office, whose officials are of diverse backgrounds, wish to have a section of its Nakuru Branch members disenfranchised? 43.Registration of the elected officials, does not prevent the Court, from examining the merit of the registration decision, and from determining if the results should be quashed, and fresh elections held. 44.The submission by the Respondents that the Applicant ought to file an Appeal against registration under Section 30 of the Labour Relations Act, has no merit. 45.Registration was made while the Application for Judicial Review is pending before this Court. 46.Judicial Review Application anchored on the Constitution of Kenya, is not restricted to procedural review. It explores procedural as well as substantive compliance. The Applicant invokes Articles of the Constitution. The submission by the Respondents that the Application is flawed, because it challenges merit of the decision, has no place under the Constitution. 47.The submission by the Applicant concerning direct trade union membership and agency status, does not seem to the Court to have disadvantaged any Teacher. 48.The Applicant argues somewhat incoherently, that some Teachers, especially from his ethnic community were transferred to agency category by the TSC, to disenfranchise them. 49.Why would the TSC, a constitutional body servicing the entire country, target one ethnic group, in one County, in a Trade Union Branch election, and disenfranchise them? What is to be gained by the TSC? This submission by the Applicant is preposterous and is rejected. 50.The Applicant argues on the other hand, that agency Teachers were allowed to vote, while only bone fide members, should have been allowed to vote. 51.The two positions by the Applicant, on bona fide members, and those classified as agency members, are not in harmony. They are incongruous, and the Court does not find persuasion in the arguments. 52.The Court is nonetheless concerned, that the elections conducted at the Nakuru County, Kuppet Branch disregarded the constitutional principles of non-discrimination and inclusivity, in appointive as well as elective offices. 53.Trade Unions are private organizations, but are not immune from these values, and the values of national cohesion and integration. 54.Article 10 of the Constitution binds the State, and all Persons, in the application and interpretation of the Constitution and any Law, to observe national values and principles of governance. 55.The values and principles include national unity, equity, inclusiveness, equality, non-discrimination and good governance. 56.Article 27 of the Constitution prohibits the State and other Persons, from directly or indirectly discriminating another Person, on certain grounds, among the ethnic origin. 57.The National Cohesion and Integration Act, Cap 7N, encourages national cohesion and integration by outlawing discrimination on ethnic grounds. 58.Although addressed to public establishments, the values and principles enunciated in the Act reflect the broad spectrum of values and principles under the Constitution, and are to be read across private and public entities, serving the public, such as Trade Unions. 59.Teachers ought not to have organized themselves in ethnic enclaves, and elected their officials on the basis of ethnicity. They ought not to have borrowed from the destructive policies of political leaders, in electing their leaders. Teachers must retain the nobility of their profession, uphold multiculturalism, protect our national values, and guard against the il-bred influences of Kenyan politics. 60.Nakuru is a cosmopolitan community, and its Teachers, of all professionals, must not sink into the bowels of ethnic balkanization. They must not take cue from their political leaders. 61.Trade Unions should not directly or indirectly, encourage discrimination against certain groups regarding membership, leadership and fair representation. 62.Elective and appointive positions, particularly in cosmopolitan Branches, must reflect the Branches’ ethnic diversity. 63.Kuppet ought to have organized its Branch elections at Nakuru in a way that distributes the 14 elective positions, in a fair, non-discriminative way, reflecting the County’s ethnic diversity. 64.It should have rules and regulations on conduct of its elections, tailored to lower ethnic tensions, and ensure there is national cohesion and integration in the Branch. 65.Most of these Teachers are working in multi-ethnic schools in the County, and the outcome of the Branch elections, could have disruptive effect on the schools. 66.Against this background, the Court would conclude that although the Applicant has not demonstrated ethnic profiling and disenfranchisement, the extract from the Registrar of Trade Unions showing the officials who were elected and registered at the Branch, and the multiple actions filed in this Court against the election results, suggest elections were based on ethnic mobilization. 67.The Applicant has not however, persuaded the Court that the results should be quashed, and fresh elections held. A repeat exercise, without a rethink on the electoral rules and regulations, is likely to take a similar ethnic angle, with a similar skewed result. It would open another round of ethnically driven mobilization among Nakuru Teachers, and cyclic, ethnic based actions presented before the Court 68.The Union needs to rethink its rules and regulations, in order to attain ethnic balancing and diversity in its future Branch elections, especially in its cosmopolitan units. It can introduce a rule, that available positions are not occupied by more than 50% officials from one ethnic community. It can introduce quotas, and even embrace a negotiated-democracy model. It can have control of the numbers, at nomination. 69.At present, the Court cannot interfere with the outcome. There are elected officials who have been registered, and annulling the outcome, and directing a fresh exercise, would result in condemning the elected officials unheard. 70.On the eve of delivery of this Judgment, the 29th June 2026, the Applicant presented an application under certificate of urgency, indicating that he had filed an application for withdrawal of the entire Judicial Review Application, and apprehends that delivery of Judgment would render his intended withdrawl of action, moot.. 71.Applications filed on the eve of a Judgment are disruptive. They interrupt the Court’s ability to manage its proceedings. When a date for Judgment has issued, Parties ought to wait for its delivery, and take further actions after delivery. 72.Does the Court unwrite its Judgment, to consider other applications made on the eve of its Judgment? 73.There are 7 Respondents and an Interested Party, who were brought to Court by the Applicant, and who woke up today, expecting delivery of Judgment, as advised by the Court. 74.While an Applicant has the right to withdraw an action before the Court renders its decision, the right is not without limitation. It must be read in harmony with the Court’s authority to manage its proceedings, and its inherent power under Section 12 (3) (viii) of its constitutive law, the E&LRC Act,to grant appropriate reliefs, as it may deem fit to grant. It must be weighed against the rights of the other Parties. 75.Notices of withdrawal of suit, do not therefore automatically withdraw suits. If allowed to operate automatically, it would result in obstruction of the fair path of justice for all the parties. 76.The Court risks becoming a mere postman or a spectator, if automatic withdrawal is allowed. The outcome of an action must not be dictated to the Court by a Party. 77.Granted that Judgment has already been prepared; cognisant of the Applicant’s limited right to withdraw his action under Rule 64 of the E&LRC (Procedure) Rules, 2024; taking into account the rights of the other Parties; and considering the final orders intended to be given by the Court, dismissing the Judicial Review Application with no order on the costs; the Court shall ggrant final orders, marking the Judicial Review Application as withdrawn and file closed, with no order on the costs. It Is Ordered: - a.The Application for Judicial Review is marked as withdrawn and file closed. b.No order on the costs. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, UNDER RULE 68[5] OF THE E&LRC [PROCEDURE] RULES, THIS 30TH DAY OF JUNE 2026.JAMES RIKAJUDGE