https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1813

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT** **ELDORET** **CAUSE NO. E073 OF 2025** *(Before Hon. Lady Justice Maureen Onyango)* **TRANSPORT WORKERS UNION ………............ 1ST CLAIMANT** **TRUSTEES OF TRANSPORT** **WORKERS UNION ………………………….…….… 2ND CLAIMANT** **NICHOLAS OTIENO ……………………………….. 3RD CLAIMANT** **VERSUS** **DAN MIHADI ............................................ 1ST RESPONDENT** **DANIEL O RAKORO** **T/A RAKORO & CO. ADVOCATES ……..….. 2ND RESPONDENT** **LOCHAB BROTHERS LIMITED ………….…… 3RD RESPONDENT** **RULING** 1. This ruling is in respect of three applications. The first is dated 19th February, 2026 and filed by the 1st Respondent. The application seeks the following orders: 1. THAT this Application be certified urgent and be heard ex parte in the first instance 2. THAT pending hearing and determination of this application, an order of stay be and is hereby issued staying the orders dated 18th February, 2026. 3. THAT this Honourable Court be pleased to set aside and expunge from its record to extracted order dated 18th February, 2026 for being irregularly extracted. 4. THAT costs be borne by the Respondents. 2. The grounds in support of the application as reiterated in the supporting affidavit of DAN MIHADI, the Applicant and 1st Respondent in the suit herein are that: 3. There are levels of impunity that do not have a place in our judiciary, legal practice and the dispensation of Justice. 4. This matter came on the 18th of February, 2026 for mention for further directions on the Claimants application. 5. The court heard the parties present and determined that the risk the application sought to protect was no longer imminent as the union had already conducted its elections. The court therefore marked the application as compromised. 6. The applicants thereafter unprocedurally had the court’s notes typed, signed by the deputy registrar and extracted/'issued as substantive orders of the Court. 7. This is serious abuse of the courts of law as no orders were issued during the mention. Furthermore, the court couldn’t have issued substantive orders on a mention date. 1. The orders as extracted have the effect of appeal/review over the Judgement in Nairobi ELRCA No. E207 of 2025 delivered by Justice Marete on the 28th of January, 2026 yet this Court is functus officio as far as ELRCA NO. E207 of 2025 is concerned. 2. At the time of the mention the Honourable lady justice indicated that she had not read the judgement in Nairobi ELRCA No. E207 of 2025 and thus could not issue orders varying, clarifying or setting aside the Judgement. 3. If the extracted orders are not set aside forthwith, the court will be opening doors for abuse of process and notes taken by the judicial officers. 4. This kind of practice only serves to ruin the Judiciary’s reputation. The illegally obtained orders are now being used by the Claimants to harass and intimidate the 1st Respondent. The orders have been served on public offices including the Registrar of Trade unions. 1. This level of impunity should not be tolerated. 2. It is in the interest of justice that this court expunges the illegally extracted orders from the record. 3. The Claimants oppose the application through the replying affidavit of NICHOLAS OTIENO, the 3rd Claimant sworn on ….. in which he deposes that 4. The second application for determination herein is dated 4th April, 2026 and is also filed by the 1st Respondent. In the application the 1st Respondent seeks the following orders: 1. THAT this application be certified as urgent and heard ex-parte in the first instance; 2. THAT this Honourable Court be pleased to stay further proceedings in this matter pending hearing and determination of this Application. 3. THAT the Honourable Lady Justice Maureen Onyango be pleased to recuse and disqualify herself from further hearing of this case. 4. THAT this case be transferred to either Employment and Labour Relations Court in Nairobi or Nakuru for hearing and determination. 5. THAT the costs of this application be in the cause. 5. The Claimants oppose the applications through the replying affidavits of NICHOLAS OTIENO sworn on 20th April, 2026. 6. In the replying affidavit sworn on 5th May, 2026 Mr. Otieno deposes that the pronouncements of the court are binding, that the issues raised by the 1st Respondent have been overtaken by events, that the averments that the orders were irregularly extracted is false and scandalous, that on 14th April, 2026 the court gave directions on status of the impugned orders and clarified the propriety of the orders, affirming the authenticity thereof, that the Applicant cannot be heard to re-open the matter already settled by the court. 7. Mr. Otieno asserts that in light of the clarification by the court on 18th February, 2026 the application dated 19th February, 2026 8. The third Application is dated 15th April, 2026. The Application was filed by the Claimants and seeks orders that: 1. THAT this Application be certified urgent and be heard ex parte in the first instance owing to the imminent threat posed by the 1st Respondent to the Union's operations, property, finances, and safety of its officials and members. 2. THAT pending the hearing and determination of this Application, this Honourable Court be pleased to issue a temporary injunction restraining the 1st Respondent, whether by himself, his agents, proxies, servants or any person acting under his authority from: 9. Interfering in any manner with the activities, operations, governance, and management of the 1st Claimant Union; 10. Accessing, entering, invading or trespassing into the Union offices and premises; 11. Sending, organizing, or facilitating goons or unauthorized persons to disrupt Union activities or destroy Union property; 12. Communicating, issuing directives, or engaging in any correspondence with employers, stakeholders, or partners dealing with the Union while purporting to act as the Secretary General or official of the Union; 13. Calling, convening, or purporting to convene any meetings or forums in the name of the Union or in the capacity of Secretary General; 14. Holding himself out, representing, or misrepresenting himself as the Secretary General or official of the Union; 15. Accessing, withdrawing, interfering with, or in any manner dealing with Union funds, bank accounts, or financial resources. 1. THAT pending the inter partes hearing and determination of this Application, this Honourable Court be pleased to issue a temporary injunction in terms of prayer (2)above. 2. THAT pending the hearing and determination of the main suit herein, this Honourable Court be pleased to issue an order of injunction restraining the 1st Respondent, whether by himself, his agents, proxies, servants or any person acting under his authority from: 16. Interfering with the activities, operations, governance, and management of the 1st Claimant Union; 17. Communicating with employers, stakeholders, or any third parties on behalf of or in the name of the Union; 18. Holding himself out or representing himself as the Secretary General or official of the Union; 19. Calling or convening meetings purporting to act in any official capacity within the Union; 20. Invading, trespassing into, or interfering with Union premises; 21. Sending or mobilizing goons or unauthorized persons to disrupt Union activities; 22. Accessing, withdrawing, or in any manner interfering with Union funds, bank accounts, or financial resources. 1. THAT the Officer Commanding Station (OCS) of the nearest Police Station be directed to ensure compliance and enforcement of the orders of this Honourable Court. 2. THAT costs of this Application be provided for. 23. The grounds in support of the application as set out on the face thereof and in the supporting affidavit of Nicholas Otieno, the 3rd Claimant are that: 1. THAT the 3rd Claimant was duly elected unopposed as the Secretary General of the Union, thereby lawfully bringing to an end the tenure of the 1st Respondent. 2. THAT despite cessation of his term, the 1st Respondent has unlawfully continued to interfere with Union affairs and operations. 3. THAT the 1st Respondent is misrepresenting to employers and stakeholders that he has been reinstated pursuant to a judgment delivered on 28th January 2026 in ELRCA E207 of 2025,which claim is misleading and unlawful. 4. THAT the 1st Respondent has been communicating with employers and stakeholders dealing with the Union and issuing directives while purporting to act as Secretary General. 5. THAT the 1st Respondent has called and/or attempted to convene meetings purporting to act as Secretary General. 6. THAT on 15th April 2026, immediately after court proceedings on 14th April 2026,the 1st Respondent sent goons to invade the Union offices with intent to disrupt operations and intimidate officials. 7. THAT the said incident was reported to the police under OB No. 18/15/04/2026. 8. THAT the 1st Respondent has on several previous occasions engaged in similar acts of invasion, intimidation, and disruption of Union activities. 9. THAT the 1st Respondent has threatened to withdraw Union funds under the false pretext that he has been reinstated, thereby exposing the Union to serious financial risk and irreparable loss. 10. THAT the actions of the 1st Respondent pose a real and imminent danger to the Union's operations, finances, property, and the safety of its officials and members. 11. THAT unless restrained by this Honourable Court, the1st Respondent will continue with acts of interference, intimidation, and destruction, causing irreparable harm to the Union. 12. THAT it is in the interest of justice that the orders sought herein be granted. 24. The Application is opposed by the 1st Respondent Dan Mihadi through his replying affidavit sworn on 27th April, 2026 in which he denies the averments in the application dated 15th April, 2026 terming the same frivolous, vexatious and an abuse of court process. 25. The 1st Respondent states that being a law-abiding citizen he filed ELRC Petition No. E103 of 2026 to execute the Judgment in ELRCA No. 207 of 2025. 26. In order to understand the genesis of the two applications it is necessary to put them in perspective. 27. This suit first came before me ex parte on 5th January, 2026 for consideration of an application dated 23rd December, 2025 filed under certificate of urgency, in which the Claimants sought a number of orders. I certified the application urgent and fixed it for inter partes hearing on 20th January, 2026 without granting any of the substantive orders sought. 28. On 20th January, 2026 when the parties appeared before me I ordered status quo and gave directions on disposal of the application by way of written submissions. 29. On 18th February, 2026 when the parties appeared before me to confirm compliance and take a ruling date for the application dated 23rd December, 2025, Mr. Adoli, counsel for the 1st Respondent informed the court that he believed the application had been overtaken by events, as the Claimants had already carried out elections and the 1st Respondent was not involved in those elections. He further informed the court that there was a judgment in ELRC Appeal No. E207 of 2025 delivered on 28th January, 2026 where the 1st Respondent was re-instated into office as General Secretary of the 1st Claimant union. He explained that the orders sought in the application before me are in contra indication with the Judgment in ELRC Appeal No. E207 of 2025. On that basis he prayed that the application dated 23rd December, 2025 be struck out. 30. Counsel further informed the court that the orders of status quo had been abused and that the said orders were also in contradiction with the Judgment in ELRC Appeal No. E207 of 2025. 31. Mr. Oduor counsel for the Claimants responded that there was nothing before court that had been overtaken by events as the Claimants approached this court while aware of the suit in ELRC Appeal No. E207 of 2025. He explained that ELRC Appeal No. E207 of 2025 had nothing to do with the instant suit. That the Appeal related to elections while the suit before me related to section 46 of the Labour Relations Act on accounts of trade unions. 32. Mr. Rakoro for the 2nd Respondent informed the court that the issues raised by counsels for the Claimants and the 1st Respondent did not concern him. 33. After hearing the parties I ruled that in view of the fact that union elections had been concluded and the 3rd Claimant elected as Secretary General of the 1st Claimant union, there was no risk of the 1st Respondent interfering with union operations. I explained that the Judgment in ELRC Appeal No. E207 of 2025 delivered on 8th January, 2026 which reinstated the 1st Respondent had been overtaken by events as his term of office came to an end upon the union national elections being held and the 3rd Claimant elected as the Secretary General. In agreement with Counsel for the 1st Respondent Mr. Adoli, I ruled that the application dated 23rd December, 2023 had thus been compromised. I thereafter fixed the main suit for hearing on 14th April, 2026. 34. On 26th February 2026 the application dated 19th February, 2026 was presented before me ex parte. I certified the application urgent and fixed it for inter partes hearing on 14th April, 2026. 35. On 11th March, 2026 another application dated 5th March, 2026 filed under certificate of urgency was placed before me. The application sought among other prayers, the joinder of Stephen Masika and James Njihia as 2nd and 3rd Interested Parties to this suit. In the application they averred that I had on 18th February, 2026, purported to interpret the judgment of my brother Marete J. delivered on 28th January, 2026 in ELRCA No. E207 of 2025. They further sought the transfer of the suit from Eldoret to either Nairobi of Nakuru. I was not satisfied that the application was urgent and directed the applicants to take a date for the application at the registry. Suffice to mention that the application has to date not been fixed for inter partes hearing. 36. On 14th April, 2026 when the parties appeared before me Ms. Kwamboka, who had just come on record for the Claimants, sought time to familiarize herself with the record. Since the other parties had no objection, I gave directions for disposal of all the pending applications by way of written submissions. I fixed the matter for mention on 5th May, 2026. 37. The court further clarified that although the orders dated 18th February, 2026 were not intended to be extracted as had been done by the Claimants, the same were factual even though they had been made by way of explanation and were not intended to be extracted. 38. On 16th April, 2026 another application dated 15th April, 2026 was placed before me. The Application was filed by the Claimants and sought orders that: 1. THAT this Application be certified urgent and be heard ex parte in the first instance owing to the imminent threat posed by the 1st Respondent to the Union's operations, property, finances, and safety of its officials and members. 2. THAT pending the hearing and determination of this Application, this Honourable Court be pleased to issue a temporary injunction restraining the 1st Respondent, whether by himself, his agents, proxies, servants or any person acting under his authority from: 39. Interfering in any manner with the activities, operations, governance, and management of the 1st Claimant Union; 40. Accessing, entering, invading or trespassing into the Union offices and premises; 41. Sending, organizing, or facilitating goons or unauthorized persons to disrupt Union activities or destroy Union property; 42. Communicating, issuing directives, or engaging in any correspondence with employers, stakeholders, or partners dealing with the Union while purporting to act as the Secretary General or official of the Union; 43. Calling, convening, or purporting to convene any meetings or forums in the name of the Union or in the capacity of Secretary General; 44. Holding himself out, representing, or misrepresenting himself as the Secretary General or official of the Union; 45. Accessing, withdrawing, interfering with, or in any manner dealing with Union funds, bank accounts, or financial resources. 1. THAT pending the inter partes hearing and determination of this Application, this Honourable Court be pleased to issue a temporary injunction in terms of prayer (2)above. 2. THAT pending the hearing and determination of the main suit herein, this Honourable Court be pleased to issue an order of injunction restraining the 1st Respondent, whether by himself, his agents, proxies, servants or any person acting under his authority from: 46. Interfering with the activities, operations, governance, and management of the 1st Claimant Union; 47. Communicating with employers, stakeholders, or any third parties on behalf of or in the name of the Union; 48. Holding himself out or representing himself as the Secretary General or official of the Union; 49. Calling or convening meetings purporting to act in any official capacity within the Union; 50. Invading, trespassing into, or interfering with Union premises; 51. Sending or mobilizing goons or unauthorized persons to disrupt Union activities; 52. Accessing, withdrawing, or in any manner interfering with Union funds, bank accounts, or financial resources. 1. THAT the Officer Commanding Station (OCS) of the nearest Police Station be directed to ensure compliance and enforcement of the orders of this Honourable Court. 2. THAT costs of this Application be provided for. 53. The grounds in support of the application as reiterated in the supporting affidavit of are that: 1. THAT the 3rd Claimant was duly elected unopposed as the Secretary General of the Union, thereby lawfully bringing to an end the tenure of the 1st Respondent. 2. THAT despite cessation of his term, the 1st Respondent has unlawfully continued to interfere with Union affairs and operations. 3. THAT the 1st Respondent is misrepresenting to employers and stakeholders that he has been reinstated pursuant to a judgment delivered on 28th January 2026 in ELRCA E207 of 2025,which claim is misleading and unlawful. 4. THAT the 1st Respondent has been communicating with employers and stakeholders dealing with the Union and issuing directives while purporting to act as Secretary General. 5. THAT the 1st Respondent has called and/or attempted to convene meetings purporting to act as Secretary General. 6. THAT on 15th April 2026, immediately after court proceedings on 14th April 2026,the 1st Respondent sent goons to invade the Union offices with intent to disrupt operations and intimidate officials. 7. THAT the said incident was reported to the police under OB No. 18/15/04/2026. 8. THAT the 1st Respondent has on several previous occasions engaged in similar acts of invasion, intimidation, and disruption of Union activities. 9. THAT the 1st Respondent has threatened to withdraw Union funds under the false pretext that he has been reinstated, thereby exposing the Union to serious financial risk and irreparable loss. 10. THAT the actions of the 1st Respondent pose a real and imminent danger to the Union's operations, finances, property, and the safety of its officials and members. 11. THAT unless restrained by this Honourable Court, the1st Respondent will continue with acts of interference, intimidation, and destruction, causing irreparable harm to the Union. 12. THAT it is in the interest of justice that the orders sought herein be granted. 54. Upon considering the application ex parte I certified the application urgent and made the following orders: 55. THAT the Application is hereby certified urgent and fixed for inter parties hearing on 29/4/2026. 56. THAT in the meantime there is issued a temporary a temporary injunction restraining the 1st Respondent from interfering with the activities, operations and governance of the 1st Respondent in terms of prayer 2 of the application. 57. THAT Respondents to file their response to the application within 7 days of service. 58. From the foregoing it is clear that applications dated 19th February, 2026 and 4th April, 2026 the Applicant is dissatisfied with my directions made on 18th February, 2026 to the effect that the judgment delivered on 28th January, 2026 in ELRCA No. E207 of 2025 had been overtaken by events. In the Judgment, the Marete J held that: 59. The decision of the registrar of trade unions issued through the extract dated 16th June, 2025 be and is hereby set aside. 60. An order be and is hereby issued compelling the Registrar of trade unions to reinstate Stephen M.Masika, Dan Mihadi and James Njihia to the position of National Chairman, General secretary and Treasurer respectively. 61. That the order on reinstatement of union officials (the Appellants) at to (ii) above shall take into account the prevailing situation in the ground pertaining to the union. 62. All actions and activities by the 1st Respondent and any union member or official shall all times bear in mind the principality and paramountcy of the interests of the union 63. Each party shall bear the costs of this appeal **Analysis and Determination** 1. I will start with the application dated 4th April, 2026 which seeks my recusal. In the application the only issue for determination is whether I should recuse myself from hearing this suit. 2. In the submissions in support of the application the 1st Respondent sets out the grounds for recusal according to the Judicial Code of Service (Code of Conduct) 2020 as follows: “(1) A judge may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned where the judge- 1. is a party to the proceedings; 2. was, or is a material witness in the matter in controversy; 3. has personal knowledge of disputed evidentiary facts concerning the proceedings; 4. has actual bias or prejudice concerning a party; 5. has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter; 6. had previously acted as a counsel for a party in the same matter; 7. is precluded from hearing the matter on account of any other sufficient reason; or 8. or a member of the judge's family has economic or other interest in the outcome of the matter in question.” 9. The 1st Respondent submits that I have previously dealt with the subject matter of the application having issued orders for the deposit of Kshs. 4,047,160.50 for and against the Interested Party. That I have personal knowledge of the disputed evidentiary facts concerning the proceedings and my partiality is questionable. The 1st Respondent further states that I have demonstrated actual bias and prejudice against the 1st Respondent as follows: 1. The order of maintenance of status quo issued on the 20th January, 2026 was aimed at stopping the 1st Respondent from participating in the union elections. This was done without giving the 1st Respondent an opportunity to be heard. It should be noted that this is not just an adverse order. The 1st respondent's constitutional rights under article 41 (2)(c) of the Constitution to form, join or participate in activities and programs of a trade union and article 50 providing for fair hearing which includes the right to be heard were grossly violated. 2. On the 18th of February, 2026 the Claimants unprocedurally and illegally extracted court notes as orders and served them to the registrar of trade unions in order to block the 1st Respondent from enforcing his judgement in Nairobi ELRCA No. E207 of 2025. The 1st Respondent approached court vide application dated 19th February, 2026 seeking orders of stay and to expunge the illegally extracted orders from the record. It would have been expected that once the court is made aware of such illegal action on its record, it would move with speed and expunge inorder to keep the record proper and clean. However, at the time of filing these submissions, the illegally extracted orders were still on record without even an order stay despite the court on 14th of April, 2026 acknowledging that the orders were illegally extracted. 3. Under normal procedure, once an application for recusal is filed, the same out to be prioritized before any other business. The 1st Respondent herein filed this application on the 4th of April, 2026. As the application was still pending, the Claimants filed their application dated 16th April, 2026. The Court went ahead to grant the Claimants the interim orders sort which were extremely punitive to the 1st Respondent and gave hearing directions that prioritized the said application despite the pendency of the recusal application and the one seeking expunging of the illegally extracted orders. 4. Indeed, the aforementioned clearly demonstrates bias and prejudice against the 1st Respondent. 10. In the affidavit in support of the application by the 1st Respondent no mention is made of myself having personal knowledge or having handled any matters in relation to this suit. It is trite that a party cannot adduce evidence through submissions as submissions are not pleadings. See decisions in **Abdul v Mokua (Civil Appeal E077 of 2023) [2025] KEHC 4105 (KLR) (1 April 2025) (Judgment);** **Githaiga v Mwangi (Civil Appeal E064 of 2022) [2024] KEHC 13449 (KLR) (30 October 2024) (Judgment); and Koros v Miriuki & another (Civil Appeal E229 of 2023) [2025] KEHC 5498 (KLR) (30 April 2025) (Judgment)** 11. If the 1st Respondent has information about my having handled the issue of the decretal sum of Kshs. 4,047,160.50, it is not stated in what suit I made the said orders. 12. From the documents on record as filed in pleadings in court, the orders were made in a ruling by my sister Mbaru J on 14th February, 2029 in Cause No. 414 of 2013. It is unfortunate that the 1st Respondent and his counsel should make submissions based on false information which he was in a position to confirm. 13. On the issues pleaded regarding the orders extracted on 18th February, 2026, those directions were made in court in the presence of both parties. The record shows that the directions were in fact made in favour of the 1st Respondent following long submissions by counsel David Adoli in which he opposed the extension of the orders made earlier by the court. To quote him verbatim, Mr. Adoli addressed the court thus: “*There is information I wish to bring to the court’s attention. I believe this application has been overtaken by events. The applicants have already done the elections. The 1st Respondent was not involved in those elections.* *Secondly, there is a judgment that was delivered by Marete J. in Nairobi ELRC Appeal No. E207 of 2025. It was delivered on 28/1/2026. In the judgment the 1st Respondent was reinstated to the position of Secretary General of the union. I have furnished the court with a copy of the judgment. The orders being sought are in contradiction with the judgment of the court. It is therefore my prayer that this application be struck out on these grounds. There are orders of status quo which have been abused. The orders are also in contradiction of the judgment. We pray that those orders be set aside.”* 1. Based on those submissions by Counsel Adoli, the court made the following observations: The Union elections having been held and the 3rd claimant has been elected as secretary General, there I no risk of Mr. Mitadi interagency with union operations. The Judgment declined on 28/1/2026 in ELRC Appeal No. E207 of 2025 only reinstated Mr. Mitadi for the term of office which has now lapsed with the lections of a secretary General. There is therefore no risk of Mr. Mitadi presenting himself for election or invading the union offices as he is no longer an official of the union. Application has thus been compromised. 1. It is a wonder that the same counsel who made a request to the court and whose request was the basis of the orders of 18th February 2026, should now turn around and accuse the court of bias for granting the prayers he sought. 2. It is evident from the foregoing that the application for my recusal is based on the fact that the orders made eventually did not turn out in the manner the 1st Respondent intended and for which he now blames the court. 3. The grounds for recusal as stated in the case of 4. I find no merit in the application for my recusal as all the grounds upon which the application are made are not true. 5. The second ground in the application is that this court lacks territorial jurisdiction to hear the case. It is common grounds that courts do not decide for parties where they want their cases to be heard. 6. The 1st Respondent participated in the proceedings without raising the issue of geographical jurisdiction until it perceived that the court was biased. The parties had already taken directions and the suit set for hearing on 14th April, 2026. It is clear that the application is an afterthought. 7. Turning to the application dated 19th February, 2026, the issue for determination is whether or not the court should set aside and expunge from the record the orders extracted dated 18th February, 2026 for being irregularly extracted. 8. First, I have already clarified above that the orders of 18th February, 2026 are factual. That they were made following application by counsel for the 1st Respondent. He told the court that the application dated 23rd December, 2025 had been overtaken by events following the elections of the 1st Claimant in which the 3rd Claimant was elected as Secretary General. He further told the court that there was a judgment in Nairobi ELRC Appeal No. E207 of 2025 which was delivered on 28th January, 2026 and that he had supplied a copy to court*.* While I was addressing the parties I told them I had not read the judgment but based on what they had told me, the application dated 23rd December, 2025 had been overtaken by events. I explained that even though the 1st Respondent was in the judgment reinstated as Secretary General, his term had lapsed with the elections of the 1st Respondent as there was now a new Secretary General. 9. The fact that the orders that were extracted were not intended to be extracted does not make the orders unlawful. 10. It is for this reason that the application dated 19th February, 2026 must fail. I accordingly dismiss it. 11. I will however not grant costs in respect of the application because the motive of extracting the orders has in the fulness of time, become known to the court just as the motive for requesting the orders by counsel for the 1st Respondent have. They are contained in the application dated 15th April 2026. 12. I will now turn to the application dated 15th April 2026, the third application. The issue for determination in the application is whether or not the court should grant the orders sought in the Application. 13. The Claimants have expressed fears that the 1st Respondent is interfering with the running of the union using the judgment in ELRC Appeal No. E207 of 2025. The prayers herein are similar though not the same, as those sought in the application dated 23rd December, 2025, though on different grounds. 14. The principles for grant of temporary injunction as sought in the application were set out in the case of **Giella v Cassman Brown & Co Ltd (1973) EA 358**. A party needs to show that they have a prima facie case with probability of success; that they stand to suffer irreparable damage that cannot be compensated by an award in damages and that in the event of any doubt in regard to the above two conditions, that the balance of convenience having regard to the circumstances of the matter tilts in favour of the applicant. 15. Ojwang J further expounded on these principles in Suleiman Vs. Amboseli Resort Limited [2004] 2 KLR 589 where he opined: *“It is the business of the court, so far as possible, to secure that any transitional motions before the Court do not render nugatory that ultimate end of justice…The argument that the law governing the grant of injunctive relief is cast in stone is not correct, for the law has always kept growing to greater levels of refinement, as it expands, to cover new situations not exactly foreseen before. Traditionally, on the basis of the well-accepted principles, the Court has had to consider the following questions before granting injunctive relief: (i) is there a prima facie case with a probability of success? (ii) does the applicant stand to suffer irreparable harm, if relief is denied? (iii) on which side does the balance of convenience lie? Even as those must remain the basic tests, it is worth adopting a further, albeit rather special and more intrinsic test which is now in the nature of general principle. The Court, in responding to prayers for interlocutory injunctive relief, should always opt for the lower rather than the higher risk of injustice…”* 1. In the instant case, the records at the Registrar of Trade Unions show that the 3rd Claimant is the current registered secretary general of the 1st Claimant union. The 1st Respondent has in his possession a judgment delivered in ELRC Appeal No. E207 of 2025 in which he was reinstated as secretary general of the union, having been so elected in the union elections held in 2021. There are thus competing interests. 2. At paragraph 23 of his replying affidavit the 1st Respondent states that he is aware of this courts position regarding his reinstatement in ELRCA No. E207 of 2025. He has further stated that he has filed Petition No. E103 of 2026 to enforce his rights. 3. As acknowledged by the 1st Respondent, I already expressed my opinion on the effect of the 1st Respondent’s reinstatement in ELRCA No. E207 of 2025 and I cannot pretend to have a different opinion. It is my view that this is a matter governed by the Labour Relations Act which provides at section 34 of the Labour Relations Act that: *34.(1) The election of officials of a trade union, employers’ organisation or federation shall be conducted in accordance with their registered constitutions.* *(2) The constitution of a trade union, employers’ organisation or federation shall-* *(a) not contain a provision that discriminates unfairly between incumbents and other candidates in elections; and* *(b) provide for the election, by secret ballot, of all officials of a trade union at least once every five years;* *(3) Notice of the election of officials under this section shall be given to the Registrar in the prescribed form within fourteen days of the completion of the election.* *(4) Disputes arising from, or connected directly or indirectly to, elections held under this section may be referred to the Industrial Court.* *(5) The Registrar may issue directions to a trade union, employers’ organisation or federation to ensure that elections are conducted in accordance with this section and their respective constitutions.* 1. Section 35(6) of the Act further provides that *“(6) No person who is not registered by the Registrar in accordance with this section shall act or purport to act as an official of a trade union, employers’ organisation, or federation or of any branch.”* 1. The 1st Respondent at paragraph 13 of his replying affidavit acknowledges that he is not currently the registered Secretary General of the 1st Respondent union and that his request to be registered as such was declined by the Registrar. 2. It is further important to note that the issue in dispute in this suit as set out in the prayers are: 1. pending hearing and determination of this suit the 1st Respondent is barred from attempting whether by himself, agents or third parties from accessing the premises of the 1st Claimant or attempting to hold office in any organ of the Claimant. 2. The Respondents are declared to be jointly and severally liable for a refund to the Claimants herein for the sum of Kenya Shillings Four Million Kenya Shillings together with Interest thereon at Court rates from 15th January 2018 till payment in full. 3. The Respondents are declared to be jointly and severally liable for a refund to the Claimants herein for the sum of Kenya Shillings Two Hundred and Twenty Five Thousand together with Interest thereon at Court (14%) rates from the 8th November 2021 Till payment in full. 4. An order do issue directing the 1st and 2nd Respondents to jointly and severally pay the Union the amounts stated in orders 2 & 3 above. 5. Pursuant to section 47 (1) b of the Employment and Labour Relations Act, an order suspending the 1st Respondent from the Union and/ or from holding any office in the Claimant Union. 6. Costs of this suit 7. Such other reliefs as this Honorable Court may deem fit. 3. It is worth emphasizing that one of the prayers seeks to bar the 1st Respondent from holding office under section 47 of the Labour Relations Act which provides: *47.(1) The Industrial Court may –* *(a) order any person who has in his possession or control any property of a trade union, employers’ organisation or federation in violation of its rules or who has unlawfully expended or withheld its moneys, to deliver that property or pay that money to its trustees; and* *(b) suspend any official who contravenes paragraph (a).* *(2) A complaint under this section shall be brought by –* *(a) the Registrar; or* *(b) a member of a trade union, employer’s organisation or federation at the time of bringing the complaint of the trade union or employers’ organisation concerned.* 1. The reinstatement of the 1st Respondent is therefore inextricably determinant on whether or the suit herein is determined in his favour or against him. The orders he has from the Judgment in ELRCA No. E207 of 2025 is therefore not the only determinant of his reinstatement. 2. Secondly as I already stated, union elections are held every 5 years. The Registrar of Trade Unions issues the elections notice. The notice for elections for 2026 was issued in September, 2025. Pursuant to that notice the 1st Claimant held elections in 2026 and the 3rd Claimant was elected as Secretary General. Unless the 1st Respondent can successfully challenge the said elections, his term of office ended on the date the 3rd Respondent was elected. The court hearing his petition No. **xxxxx** will have to determine these issues. 3. It is for these reasons that I find the application dated 15th April 2026 merited. 4. Now on the last issue, whether I should transfer this case to Nairobi. The Applicant has prayed in the application dated 4th April, 2026 that this suit should be transferred to Nairobi or Nakuru. 5. In view that the 1st Respondent’s head office is located in Nairobi, I will transfer this suit to Nairobi to be heard in the Claims Division. 6. In conclusion, these are the orders of this court: 7. The prayers seeking my recusal from hearing this case is dismissed for lack of merit 8. The prayer seeking the expunging of the orders extracted on 18th February 2026 is also dismissed for lack of merit. 9. With respect to the application dated 15th, I hereby grant temporary injunction restraining the 1st Respondent whether by himself, his agents, provides or any other person acting under his authority, from interfering with the activities, operations and management of the 1st claimant pending hearing and determination of this suit. 10. Finally this file is transferred to Nairobi to be heard under the claims Division. 11. There shall be nor orders for costs of the application **DATED, SIGNED AND DELIVERED ON** **THIS 26TH DAY OF JUNE, 2026** **MAUREEN ONYANGO** **JUDGE**