https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1955

Sangura & 25 others v Chemosit & 2 others (Petition E004 of 2026) [2026] KEELRC 1955 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1955 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Bungoma Petition E004 of 2026 DN Nderitu, J July 9, 2026 IN THE MATTER OF VIOLATION OF THE PETITIONER’S RIGHTS TO FAIR REPRESENTATION, EQUAL AND EFFECTIVE PARTICIPATION IN THE GOVERNING STRUCTURES OF THE RESPONDENTS AND FLAGRANT NOMINATIONS OF MEMBERS IN CONTRAVENTION OF GUIDING CONSTITUTION OF KUPPET AND THE 2010 CONSTITUTION AND IN THE MATTER IF ARTICELS 2(4), 3, 10, 19, 26, 31, 47, 50, 129 (1) & (2), 156, 159 (1). 160. 171, 248, 249 (1) & (2), 250, 254 AND 255 OF THE CONSTITUTION 2010 AND IN THE MATTER OF CONTRAVENTION OF ARTICLES OF KENYA UNION OF KENYA UNION OF POST PRIMARY EDUCATION TEACHERS (KUPPET) ARTICLES 3, O, 8.12.0 (i), 8.8.1 (a), 8.12.0 (a) to (h), 5.0, 7.0 (a) (i), 8.4.0 (a) & (f) AND 11.1.0 AND IN THE MATTER OF CONSTITUTION OF GOVERNING BODIES UNDER KUPPER CONSTITUTION FOR BUNGOMA BRANCH Between Masinde Sangura 1st Petitioner Evans Wambwile 2nd Petitioner Ann Mulindo 3rd Petitioner Beatrice Kadogo 4th Petitioner Collins Wangila 5th Petitioner Furaha Nicholas 6th Petitioner Levi Watata 7th Petitioner Samuel Makhanu 8th Petitioner Isaac Malemo 9th Petitioner Simon Wafula 10th Petitioner Silas Kiyabi 11th Petitioner Remmy Nabutola 12th Petitioner Edwin Chenge 13th Petitioner Dismas Cicero 14th Petitioner Preston Wasike 15th Petitioner Caleb Wabwile 16th Petitioner Sandra Salano 17th Petitioner Wanaswa Benard 18th Petitioner Caro Nabangi 19th Petitioner Dennis Juma 20th Petitioner Elly Mangut 21st Petitioner Ferdinand Masinde 22nd Petitioner Dennis Kiboi 23rd Petitioner Solomon Kimtai 24th Petitioner Wechuli Griffin 25th Petitioner Constant Sakwa 26th Petitioner and David Sichei Chemosit The Kuppet Chairman, Bungoma Branch 1st Respondent Augustine Kundu Luketelo The Executive Secretary, Kuppet, Bungoma Branch 2nd Respondent Ferdinand Wamalwa The Assistant Executive Secretary Kuppet, Bungoma Branch 3rd Respondent Ruling I. Introduction & Background 1.In a petition dated 13th February 2026 filed through J. W. Sichangi & Company Advocates, the Petitioners are seeking for the following reliefs –1.A declaration that the petitioners’ fundamental rights and freedoms of representation were infringed, violated and or breached by flagrant acts of the Executive Secretary KUPPET Bungoma Branch.2.A declaration and cancellation of all nominations effected illegally and irregularly without following the laid down procedures in the constitution of KUPPET and fresh nominations be effected or conducted.3.Costs and interest.4.Any other relief this Honourable court deems fit to grant. 2.The petition is accompanied with a verifying affidavit and supported with an affidavit both sworn by the 1st Petitioner on even date. 3.Contemporaneously, the Petitioners filed a Notice of Motion (the application) dated 16th February 2026 under a certificate of urgency seeking for the following reliefs –a.Spent.b.That a temporary conservatory order be issued restraining confirmation of nominees (co-opted) members to the Branch by the National office pending hearing and determination of this application.c.The confirmation of nominees to all organs of the Branch Executive Committee KUPPET Bungoma Branch be halted, stayed and or stopped pending hearing and determination of this petition.d.That costs be borne by the respondent. 4.The application is supported with the affidavit of the 1st Petitioner sworn on even date with several annexures thereto. 5.When the matter came up in court on 17th February 2026 for directions on the application, the court (Nzioki Wa Makua J) issued the following orders –1.That the officials elected under the eagis of the Union elections for KUPPET Bungoma Branch under the supervision of the National KUPPET Office on 24th January 2026 where 14 Branch Executive Committee Members were duly elected and approved by the Union are to remain in office alongside the 3 women representatives duly nominated.2.That the assumption of office by the other nominees intended to be co-opted after the 2nd February 2026 meeting of KUPPET Bungoma Branch are stayed pending inter partes hearing on 24th February 2026.3.That replies must be filed and served within 3 days of service of this order which order must be served before close of business today 17th February 2026. 6.The above orders were extended pending the hearing and determination of the application inter-partes. 7.Upon service of the petition and the application, the 1st Respondent acting in person filed a replying affidavit sworn by himself on 20th February 2026 with several annexures thereto. 8.The 2nd Respondent instructed Wattangah & Co. Advocates to act for him and filed a replying affidavit in opposition to the application sworn by himself on 19th February 2026 with several annexures thereto. A response to the petition of even date was also filed. 9.The 3rd Respondent, though duly served, did not respond to the application and the petition but filed written submissions in person dated 27th March 2026. 10.By consent, the application was canvassed by way of written submissions. Mr. Sichangi for the Petitioners/Applicants filed written submissions dated 8th April 2026 and Mr. Wattangah for the 2nd Respondent filed written submissions dated 25th March 2026. II. Evidence 11.In the supporting affidavit sworn by the 1st Petitioner, it is deposed that the Petitioners are professional teachers and members of the Kenya Union of Post Primary Education Teachers (KUPPET) allied to the Bungoma Branch of the Union. 12.It is further deposed that on 24th January 2026 the Branch Union held elections supervised by the National Office. In that election, 14 Branch Executive Committee (BEC) Members were elected and subsequently recognized and approved by the National Chairman of the Union. 13.It is deposed that subsequent to the elections, the BEC convened on 2nd February 2026 for inauguration and nomination of co-opted officials in accordance with the constitution of the Union. Three women representatives were co-opted in accordance with the said constitution a copy of which is annexed. 14.It is deposed that the constitution of the Union allows the co-option of other member officials to the BEC with a maximum capped at 52 nominees, based on the principles of equity and fairness. It is stated that since there were two opposing camps during the elections, one headed by the 2nd Respondent and the other dubbed team-change, each side was to nominate 26 members to make the total of 52. It is further deposed that the co-opted members were to be drawn from each of the sub-counties of Bungoma County with each providing four members. 15.It is deposed that the 2nd Respondent ignored the criteria above and ended up nominating persons who are not members of the Union culminating in a bloated number of nominees beyond the 52, in blatant contravention of the constitution of the Union. It is stated that a total of over 123 persons were nominated. 16.In protest to the above, it is deposed that the Petitioners wrote to the National Secretary General of the Union alleging gross misconduct on the part of the 2nd Respondent. It is deposed that the 2nd Respondent further violated the constitution of the Union by creating more branch organs without approval or authorization from the national office. A copy of the said letter is attached to the affidavit. 17.It is deposed that the 2nd Respondent engaged in the irregular and un-procedural misconduct cited above in an attempt to silence any dissenting voices to his leadership. 18.In his replying affidavit, the 1st Respondent deposed that in a meeting of the BEC held on 2nd February 2026, three women were co-opted to the BEC and a resolution made to co-opt 52 other members from all the sub-counties and in accordance with the constitution of the Union. 19.It is deposed that since the contest during the elections was between two opposing teams, each side was to nominate 26 members to be co-opted into the BEC. It is further deposed that the two sides presented the names of their respective proposed nominees but the team led by the 2nd Respondent objected to any debate on the individuals whose names had been proposed and forwarded. 20.It is deposed that after the said meeting, the 2nd Respondent circulated a completely different list of names in the social media purporting that the list had been generated from a meeting purportedly held on Sunday 1st February, yet, the meeting was actually held on Monday, 2nd February 2026. It is deposed that while the agreed list had 52 names on it, the new list had in excess of 123 names. It is deposed that the 2nd Respondent unilaterally and arbitrarily nominated another 13 members to join the BEC and created an organ that had not existed, without the consultation or approval of the BEC or the national office. 21.The 1st Respondent distanced himself from the unilateral and illegal actions of the 2nd Respondent and in essence supported the application calling upon the Court’s intervention to restore order and sanity in the Union that has over 7,000 members in the Bungoma Branch alone. 22.In his replying affidavit, the 2nd Respondent deposed that the branch elections were held on 24th January 2026 and he listed the names of the 14 persons that were duly elected to the BEC. He stated that the Petitioners are not members of the Union as no evidence was availed in the petition or the application. 23.It is further deposed that the minutes of the meeting held on 2nd February 2026 availed by the Petitioners are fake and hence he attached a copy of what he purports to be the true and accurate minutes of that meeting. It is deposed that the minutes of the BEC are confidential and no request for the same had been received from the Petitioners or on their behalf. 24.It is deposed that the decision to nominate a total of 109 members was reached during the said meeting. It is deposed that the petition and the application are fatally defective for not joining those nominees who have a right to be heard in accordance with the rules of natural justice. It is deposed that it is not true that the constitution of the union caps the nominations at 52 members. It is deposed that all the 109 nominees were so nominated based on the principles of gender and regional balance, fairness, and equity provided for in the constitution of the Union. 25.Although the Applicants had indicated through their Counsel that they were to file a further/supplementary affidavit, none was filed. II. Submissions 26.Counsel for the Petitioners submitted that the subject matter of this petition and the application is neither the branch elections that were held on 24th January 2026 nor the nomination of the three women members. It is submitted that the gist of the matter is that after it was agreed in the meeting of 2nd February 2026 that a total of 52 nominees be co-opted to the BEC, and each opposing side provided a list of its 26 nominees, the 2nd Respondents blatantly and in breach of all protocols and the constitution of the Union generated a unilateral list of 123 co-opted members without the consultation or approval of the BEC. It is further submitted that the 2nd Respondent, again unilaterally, appointed another 14 members to join the BEC without the consultation and or approval of the BEC. 27.It is submitted that the 2nd Respondent has no powers under the constitution of the Union to undertake the irregular and un-procedural actions stated in the foregoing paragraph. It is submitted that the above was done for self-preservation as the 2nd Respondent brought on board to the BEC persons who had lost in the just concluded elections and who campaigned on his side. 28.In support of the application for grant of the interlocutory injunctive orders, Counsel cited Nguruman Limited V Jan Bonde Nielsen & 2 Ohers and Mrao Ltd V First American Bank of Kenya Ltd (2003) KLR. It is submitted that the Petitioners have demonstrated a prima facie case that the 2nd Respondent violated the constitution of the Union in taking the unilateral actions alluded to above. 29.It is further submitted that if the said illegal actions by the 2nd Respondent are allowed to stand; the Petitioners and the entire branch of the Union shall suffer irreparable loss and or injury. Counsel cited Pius Kipchirchir Kogo V Frank Kimeli Tenai (2018) KLR in support of that argument. 30.It is submitted that with a membership of over 7,000 members that each make monthly contributions, the Union branch is likely to suffer irreparable loss and damage as the resources shall be applied to cater for persons who are in office illegally and who do not deserve any emoluments. It is submitted that the 2nd Respondent handpicked his cronies to muscle and silence any dissenting voices in the Union branch. 31.It is further submitted that the 1st Respondent, the Chair of the BEC, confirmed in his replying affidavit that the minutes availed by the 2nd Respondent are not authentic as no such resolutions were made during the BEC meeting held on 2nd February 2026. It is submitted that the unilateral actions by the 2nd Respondent were illegal, null, and void and the more the reason why this court should intervene and grant the orders sought in the application. 32.Counsel for the 2nd Respondent submitted that for the court to grant the conservatory orders sought, it has to be satisfied that the Applicants have presented a prima facie case with likelihood of success; that there is likelihood of irreparable prejudice if the application is denied; that the petition shall be rendered nugatory if the application is denied; and, that public interest is in favour of issuance of the orders prayed for. 33.Counsel cited several decisions in support of the position taken by the 2nd Respondent, including Naftali Ruth Kinyua V Patrick Thuita Gachure (2015) KLR to the effect that the above-mentioned principles and factors should be considered cumulatively in the court considering whether to grant or deny the application. It is submitted that the Petitioners failed to establish a prima facie case. 34.The 3rd Respondent submitted that the 2nd Respondent misrepresented to the membership of the Union that a BEC meeting was held on 1st February 2026, a Sunday, while the meeting was actually held on Monday, 2nd February 2026. It is further submitted that there are conflicting minutes on the meeting held and the court should determine which minutes are authentic. He submitted that the 2nd Respondent has violated the constitution of the Union by unilaterally co-opting members into the BEC without the consultation and or approval of the BEC and the national office of the Union. 35.The 1st Respondent did not file written submissions but as noted elsewhere in this ruling, the 1st Respondent filed a replying affidavit effectively supporting the application and the petition. III. Analysis & Determination 36.The application herein and the Petition raise fundamental issues on the composition of the BEC of the Bungoma Branch of KUPPET. The facts and the circumstances leading to the filing of this petition have been set out in the foregoing paragraphs of this ruling as advanced by the parties in their respective pleadings and submissions. 37.In the considered understanding of the Court, this petition is not challenging the branch elections held on 24th January 2026. The petition is also not challenging the nomination and co-option of members of the BEC consisting of 14 elected members and three women nominees thereof. The dispute is about the co-option of 123 (or is it 109) persons to the BEC allegedly carried out unilaterally by the 2nd Respondent. It is also claimed by the Petitioners, a position that is supported by the 1st Respondent, that the minutes availed in court by the 2nd Respondent are fake and that the authentic minutes of the meeting held on 2nd February 2026 are those availed by the Petitioners. 38.It is in the foregoing context that the Applicants are seeking for conservatory orders as per the application, pending the hearing and determination of the petition. In the considered view of the Court, there are several issues that need determination in the petition – How many nominees may be co-opted to the BEC? Is that number capped at 52 rendering the 123 co-opted nominee members unconstitutional and unlawful? Did the BEC consent and or agree to the co-option of the 123 members or was this a unilateral action by the 2nd Respondent? 39.In the circumstances, the issue for consideration by the Court at this juncture is – Should conservatory orders issue as prayed in the application pending the hearing and determination of the petition? 40.The 2nd Respondent raised a cardinal issue for consideration in the petition – Whether the Petitioners are members of the Union. However, it is not denied that the Petitioners are professional teachers serving within the jurisdiction of the Branch Union. This is an issue for due consideration as well because if the Petitioners are not members of the Union, then they have no business in the affairs thereof and lack the capacity to bring this petition. This is a matter that shall have to be determined in the hearing of the petition. 41.Conservatory orders are more or less injunctive orders especially in public interest litigation with the purpose of maintaining status quo pending the hearing and determination of a matter. However, conservatory orders cover a wider variety of factors compared to injunctive orders – see the Supreme Court in Peter Gatirau Munya v Independent Electoral and Boundaries Commission & 2 Others [2017] KEHC 2023 (KLR). 42.Basically, the Petitioners needed to demonstrate a prima facie case based on violation of the law or public policy or internal mechanisms and processes. They needed to demonstrate irreparable loss or damage and, in case of doubts, the court should consider the balance of convenience. The court has also to consider the public interest or policy in the matter. 43.The status is that the elections are over and are not contested. As noted above, the core and fundamental structure of the BEC including the membership of the three female representatives is not challenged. This ensures that the core business of the Branch continues without interruption and the same shall not come to a halt. As noted above, the dispute is about the co-option of the 123 nominee members to the BEC. 44.Based on Geilla V Cassman Brown (1969) 696 and Peter Munya Gatirau V IEBC & Others (supra), the court finds and holds that the Petitioners have established a prima facie case calling for the intervention by this court. The issues raised in the application and the petition raise issues calling for further interrogation and determination by the court. 45.The court finds and holds that it is in the interest of justice that conservatory orders shall issue as prayed. The issuance of the said orders shall not affect the operations of the Union Branch. The actions by the 2nd Respondent in co-opting 123 members into the BEC shall cause irreparable loss to the Branch Union if the same is ultimately found to have been unilateral, arbitrary, un-procedural, irregular, and unlawful. It is also curious that the minutes availed by the 2nd Respondent for a BEC meeting have been challenged as fake. This is a weighty matter that suggests criminal or quasi criminal conduct in generation of the minutes by either or both of the opposing sides. 46.The above are weighty issues that call for serious deliberation, consideration, and determination by the Court. This can only be possible if the court issues orders conserving the status that prevailed immediately following the elections, before the contested 123 members of the BEC were co-opted. 47.In the circumstances, the balance of convenience tilts heavily in favour of the court confirming the orders issued by the court (Nzioki Wa Makau J) on 17th February 2026.III.Ordersi.The Notice of Motion by the Petitioners dated 17th February 2026 has merits and the same is hereby allowed as hereunder.ii.The officials elected in the Bungoma Branch Union elections held on 24th January 2026 being 14 members of the BEC alongside three women representatives duly nominated thereto shall remain in office pending the hearing and determination of the petition.iii.All the 123 or whatever number of the nominees co-opted to join the above mentioned BEC members shall not assume the office or their positions pending the hearing and determination of the petition.iv.Costs in the petition. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 9TH DAY OF JULY 2026.....................................DAVID NDERITUJUDGEELRC BUNGOMA