https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1561

Yoya v Mahamaded & 13 others (Petition E088 of 2026) [2026] KEELRC 1561 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1561 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E088 of 2026 JW Keli, J June 5, 2026 Between Tonge Yoya Applicant and Fazul Mahamaded 1st Petitioner Institute For Democratic Governance 2nd Petitioner and Cabinet Secretary Ministry of Labour and Social Protection 1st Respondent Principlal Secretary Labour And Skill Development 2nd Respondent The Registrar of Trade Unions 3rd Respondent Commissioner for Labour 4th Respondent Central Organization of Trade Union (Kenya) 5th Respondent Attorney General 6th Respondent and Francis Atwoli 1st Interested Party Kenya National Union of Teachers 2nd Interested Party Kenya Union of Post Primary Education Teachers (KUPPET) 3rd Interested Party Kenya Medical Practitioners & Dentist Union 4th Interested Party Law Society of Kenya 5th Interested Party Katiba Institute 6th Interested Party Ruling 1.The applicant, Toge Yoya, interested to join the instant petition as the 7th Interested party filed a notice of motion application dated 24th March 2026 brought under Articles 2, 3, 10, 19, 20, 22, 23,27, 28,35,41,47,48,81(e),159 AND 162 of the Constitution of Kenya, Rule 2, 4 and 7 of the Constitution of Kenya(Protection of Rights and Fundamental Freedom) Practice and Procedure Rules, 2013, Section 34 of Labour Relations Act 2007,Section 4 of Fair Administrative Actions Act 2012 and all other enabling provisions of the law). seeking for the following orders-a.Spentb.That the applicant/7th Interested party be enjoined as a party in petition E088/2026 to articulate and defend his interest in so far as the elections of 5th Respondent and its officials is concerned.c.That any other order the court deem just and fit to issue towards the end of justice.d.That the costs of this application be in the course. 2.The application was supported by the annexed affidavit of Tonge Yoya and founded on the following grounds-a.That the 5th Respondents convened quinquennial conference and elected officials before all unions could conduct their national election disenfranchising people interested to participate in the said election.b.That the 3rd Respondent issued a notice dated 25th September 2025 to the general public giving timelines of conducting trade union elections upon which I tendered my application in the position of secretary general for Kenya union of Domestic, Hotels, Educational Institutions and Hospital workers (KUDHEIHA).c.That upon realizing that Kudheiha had scheduled for national election on the 20th February 2026 contrary to the circular issued to the public by the 3rd Respondent I filed a petition under certificate of urgency being petition E 011 of 2026 pending judgement before Hon Justice Rika at Nakuru ELRC on the 2nd April 2026.d.That the court issued orders restraining KUDHEIHA national election till hearing and determination of the Petition with advice in the ruling dated 18th February 2026 that Kudheiha should carry out Transparent, Credible, Inclusive and Consltative national elections within timelines issued in the 3rd Respondents circular dated 25th September 2025 between 1st April to 30th June 2026.e.That the said circular has prescribed timeline for conducting 5th Respondents elections by 30th August 2026.f.That to my utter disbelief, the 5th Respondent went ahead, conducted her quinquennial conference and elected one Mr. Albert Njeru as the treasurer who attended the said quinquennial as a delegate alongside people allegedly representing KUDHEIHA Workers as delegates while the said union is yet to conduct its national election.g.That it is my interest that the purported 5th Respondent elections was shambolic exercise carried with haste to block other people who would be elected in various unions like myself from participating and should be nullified.h.That Kudheiha workers is a longstanding affiliate union to the 5th Respondent COTU(K) and must send validly elected officials to participate in her most important activities such as elections as delegates with equal opportunity in vying for the leadership of COTU including the position of Secretary General.i.That the opaque unconstitutional quinquennial held by the 5th Respondent should be nullified and a lawful process be conducted by the COTU after all unions have concluded their national elections including KUDHEIHA Workers to give everyone equal opportunity to vie.j.That I am interested in fully participating in COTU election upon my election.k.That the constitutional principle of any electoral system and process as outlined in chapter seven of Kenya Constitution 2010 is sacrosanct and succinct, Article 81(e) states that “the electoral system shall comply with the following principles free and fair elections, which are-i.By secret ballot;ii.Free from violence, intimidation, improper influence or corruption;iii.Conducted by independent body;iv.Transparent; and vi. Administered in an impartial, neutral, efficient, accurate and accountable manner”l.That Article 41(1) of the Constitution 2010 on the states that “Every person has the right to fair labour practices”m.That Section 34(1) & (2) of Labour Relations Act 2007 in operationalization of Article 41 & 81 above states that “elections of a trade union, employers’ organization or federation shall be conducted in accordance with their registered constitution. (2) the Constitution of a trade union, employers’ organization or federation shall –not contain a provision that discriminates unfairly between the incumbents and other candidates in election; and b. Provide for the election, by secret ballot of all officials of a trade union at least once every five years”n.That I stand to suffer irreparable loss should the election of 5th Respondent hold.o.That the Respondents stand to suffer no prejudice if the orders sought herein are granted, as a matter of fact they will just follow the law in a fair electoral process. 3.The applicant filed a supporting affidavit of even date and annexed supporting documents, including the ruling which granted him interim orders against the holding of the national elections of KUDHEIHA, where he is running for the position of Secretary General. 4.The application was opposed by the 5th respondent through the affidavit of Francis Atwoli sworn on the19th April 2025 as follows-a.That I am the 1st Interested Party herein and the duly elected Secretary General of the 5th Respondent, and by virtue of my office, I am fully conversant with the matters giving rise to this Petition and the present application, and I am therefore competent and duly authorised to swear this Affidavit on behalf of the 5th Respondent and on my own behalf.b.That I have carefully read and considered the Notice of Motion and the Supporting Affidavit dated 24th March 2026 filed by the Applicant seeking to be enjoined as the 7th Interested Party in these proceedings, and I verily believe that the said application is wholly misconceived, legally untenable, and amounts to a gross abuse of the process of this Honourable Court.c.That save where expressly admitted, I deny each and every allegation contained in the said application and put the Applicant to strict proof thereof, and I aver that the application is premised on distorted facts, misapprehension of the law, and a deliberate attempt to improperly invoke and expand the jurisdiction of this Honourable Court.d.That the Applicant has not demonstrated, and indeed cannot demonstrate, any identifiable, proximate, or legally protectable interest in the subject matter of this Petition, which is the primary threshold required for joinder as an Interested Party under established legal principles.e.That from the Applicant’s own pleadings, it is apparent that his grievances arise from matters relating to his alleged candidature in the internal elections of KUDHEIHA, which are separate, distinct, and unrelated to the issues in dispute in the present Petition concerning the elections of the 5th Respondent.f.That the Applicant has expressly admitted that he has already instituted separate proceedings being Petition No. E011 of 2026 in respect of those grievances, and the present application therefore constitutes a clear case of multiplicity of proceedings, forum shopping, and an attempt to litigate parallel claims in different proceedings contrary to the law.g.That the Applicant’s alleged interest in the affairs, governance, and elections of the 5th Respondent is speculative, remote, hypothetical, and contingent upon uncertain future events, including the possibility of his election in a different trade 3 | P a g e union, and such contingent expectations do not amount to a recognizable legal interest capable of grounding joinder.h.That further and without prejudice to the foregoing, the Applicant has no stake whatsoever in the elections of the 5th Respondent held on 14th March 2026, as he neither participated in, nor contested for, any position in the said elections.i.That the Applicant was not a candidate, delegate, voter, observer with legal standing, or participant in any capacity in the quinquennial delegates conference through which the elections of the 5th Respondent were conducted, and he played no role whatsoever in the electoral process from inception to conclusion.j.That the electoral process of the 5th Respondent is structured, regulated, and conducted through duly accredited delegates drawn from affiliated unions in accordance with its Constitution, and the Applicant does not fall within any of the categories of persons entitled to participate in such processes.k.That in the absence of any participation, involvement, or recognized role in the said elections, the Applicant cannot lay any legitimate legal or factual claim to the conduct, outcome, or validity of the elections of the 5th Respondent.l.That the Applicant has equally failed to demonstrate, with any degree of precision or credibility, the nature of prejudice he has suffered or stands to suffer as a result of the said elections, and in the absence of such prejudice, his claim is devoid of any legal foundation.m.That the Applicant is therefore a complete stranger to the electoral process of the 5th Respondent and lacks any recognizable stake, right, or interest capable of justifying his joinder in these proceedings.n.That the Applicant’s alleged interest is not only speculative and remote, but also amounts to an attempt to create an artificial nexus to proceedings in which he has no lawful place, with the sole aim of introducing extraneous and irrelevant matters.o.That the issues the Applicant seeks to introduce, particularly those relating to the validity of the elections of the 5th Respondent, are substantive matters that cannot properly be canvassed through joinder, but would require a separate, properly instituted and competent suit.p.That the elections of the 5th Respondent were duly convened, conducted, and concluded on 14th March 2026 in full compliance with the Constitution of the 5th Respondent and the applicable statutory framework, including the Labour Relations Act.q.That the said elections were conducted transparently, democratically, and in accordance with established procedures, the results were duly declared, and the elected officials have since assumed office and commenced execution of their lawful mandates.r.That the results of the said elections have been duly communicated to and registered by the Registrar of Trade Unions in accordance with the law, and the entire electoral process has therefore been fully concluded and overtaken by events.s.That this Honourable Court is fully capable of effectively and completely determining the issues raised in this Petition without the participation of the Applicant, whose joinder would not aid the Court in any meaningful or material way.t.That on the contrary, allowing the Applicant to be enjoined would occasion serious prejudice to the 5th Respondent and the Interested Parties by unnecessarily expanding the scope of the proceedings, introducing irrelevant matters, and delaying the expeditious disposal of this matter.u.That the Applicant has failed to satisfy the legal threshold for joinder as an Interested Party, including demonstrating a clear stake, identifiable prejudice, and the necessity of his participation in assisting the Court.v.That the application is therefore frivolous, vexatious, legally untenable, and a clear abuse of the process of this Honourable Court. Decision 5.The application was canvassed by way of written submissions and the pleadings. 6.I have carefully considered the position of the parties, including their submissions. The instant matter was due for determination, the parties having filed their submissions in the preliminary objection and petition. The court noted the cause of action in the petition was the conduct of elections by COTU- K , before the conclusion of national elections of its affiliate members. The Applicant is contesting for the position of the Secretary General of KUDHEIHA, a member of COTU-K and alleged that his competitor Alfred Obed Njeru the incumbent Secretary General irregularly attended the COTU- K elections as a KUDHEIHA delegate and was even voted as the Treasurer of COTU-K. The Applicant had a case before Nakuru ELRC No. E011 OF 2026 where the court in its decision dated 2nd April 2026 held- ‘The Court does not find merit to the petition. It is intriguing that the petition was prepared on 10th January 2026, even before the Petitioner was nominated as a candidate for the position of Secretary General, or General Secretary. He has been allowed to participate in the ballot. He has been campaigning aggressively and openly, ever since he was nominated. There is no evidence that the Petitioner’s right of access to register of members/delegates, has been curtailed. There is no evidence that the Respondents have placed impediments in the way of the Petitioner, in his search for the position of Secretary General/General Secretary.’’ The court sitting at Nakuru had initially restrained the holding of the KUDHEIHA national elections on an interim basis, thus, as of 1st April 2026, the national elections of KUDHEIHA had not been held. 7.The issues raised in the application thus fall under the instant petition. The applicant is not yet elected and has no elective status besides being a candidate in KUDHEIHA, nor COTU-K. He will not be affected by the petition more than any other candidate in the national elections of the affiliate parties to COTU-K. I find the applicant is not a necessary party in the proceedings. The applicant relied on the decision In the matter of Matemu v Trusted Society of Human Rights Alliance & 5 others (Civil Appeal 290 of 2012) [2013] KECA 445 (KLR) (26 July 2013) (Judgment) where the court stated that- “An interested party is a party who has a stake in the proceedings, though he or she was not party to the cause ab initio.” The court went ahead by stating that “It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some special interest by a private citizen seeking to enforce a public right have been buried in the annals of history. Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. Pursuant to Article 22 (3) aforesaid, the Chief Justice has made rules contained in Legal Notice No. 117 of 28th June 2013 – the Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013–which, in view of its long title, we take the liberty to baptize, the “Mutunga Rules”, to inter alia, facilitate the application of the right of standing. Like Article 48, the overriding objective of those rules is to facilitate access to justice for all persons. The rules also reiterate that any person other than a person whose right or fundamental freedom under the Constitution is allegedly denied, violated or infringed or threatened has a right of standing and can institute proceedings as envisaged under Articles 22 (2) and 258 of the Constitution” 8.Before the court was not a constitutional petition but an election petition, which I find no need to elevate to the constitutional threshold. The joining of the applicant in the petition as an interested party will add no value to the election petition and instead will delay the final conclusion of the dispute. The applicant will suffer no prejudice as the issues he raises are already raised by the petitioners. I upheld the conditions for joining an interested party set out by the Supreme Court in Methodist Church in Kenya v Fugicha & 3 others [2019] KESC 59 (KLR)that –‘The 1st respondent was admitted to the suit at the High Court as an interested party. The trial court could join interested parties to proceedings where necessary, a party could be enjoined in a matter on the basis of certain considerations namely:-a.joinder of a person because his presence would result in the complete settlement of all the questions involved in the proceedings;b.joinder to provide protection for the rights of a party who would otherwise be adversely affected in law; andc.joinder to prevent a likely course of proliferated litigation.’ The court held that the applicant was not a necessary party whose presence would result in the complete settlement of all issues raised in the petition. There was no demonstrated prejudice the applicant would suffer if the joinder is not allowed. 9.The application for joinder of the applicant as the 7th intended interested party is dismissed. I make no order as to costs as the application was not frivolous. 10.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 5th DAY OF JUNE, 2026.JEMIMAH KELI,JUDGE.In the presence of:Court Assistant: OtienoApplicant - AyugiPetitioner- absent1st Respondent: Absent5th Respondent and 1st to 4th interested parties KwambokaInterested parties -absent