https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1789

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** *(Before Hon. Lady Justice Monica Mbarũ)* **PETITION NO. 8 OF 2020** **ROMAN WAEMA 1ST PETITIONER** **LUCY KANYI 2ND PETITIONER** **AHMED OMAR 3RD PETITIONER** *VERSUS* **NICHOLAS MBUGUA 1ST RESPONDENT** **PETER NJUNG’E 2ND RESPONDENT** **GRACE NYAMBURA 3RD RESPONDENT** **KENYA LONG-DISTANCE TRUCK DRIVERS AND** **ALLIED WORKERS' UNION 4TH RESPONDENT** **REGISTRAR OF TRADE UNIONS 5TH RESPONDENT** **RULING** The petitioners filed applications dated 23 March 2026 and 30 March 2026. The petitioners submitted that events have since overtaken the application dated 23 March 2026. The ruling therefore relates to the application dated 30 March 2026. The application is premised under the provisions of Sections 1, 1A, 1B, 3, 3A, 63(e), Civil Procedure Act; Section 12, Employment and Labour Relations Court Act, Articles 1, 2, 3, 10, 12, 19, 20, 21, 22, 23, 24, 25, 28, 36, 41, 47, 48, 50, 159, 162, 165, 169, 258, 259, Constitution of Kenya, 2010; Sections 34, 35, 41, Labour Relations Act; Order 51 Rule 1, Civil Procedure Rules, and seeking orders: 1. *Spent.* 2. *Spent.* 3. *An Immediate, Unconditional stay of execution of:* 1. *The Registration of Notice of Change of Officials effected/communicated by the Registrar Of Trade Unions vide Letter dated 26/03/2026, in respect of the KENYA LONG DISTANCE TRUCK DRIVERS AND ALLIED WORKERS UNION Mombasa Branch Elections held on 24/03/2026;* 2. *And all processes and/or functions Consequential thereto.* 4. *An ORDER do issue restraining the 1st and 3rd respondents, jointly and/or severally, whether by themselves, their Agents/Servants/Employees/Assigns and/or anyone whosoever laying claim through them or on their behalf, from dealing in any manner whatsoever with any and all aspects of the socio-political affairs of the Mombasa branch of KENYA LONG DISTANCE TRUCK DRIVERS AND ALLIED WORKERS UNION.* 5. *The Orders subject to Prayers 2 – 4 above do persist until the Hearing and Determination of the instant Application.* 6. *The Court be Pleased to find, hold and declare that the KENYA LONG* *DISTANCE TRUCK DRIVERS AND ALLIED WORKERS UNION Mombasa Branch Elections conducted by the Respondents on 24/03/2026 were, are and remain irregular, unprocedural, illegal, improper, unlawful, discriminative, contrary to the directives issued by the court on 10/03/2026 as well as the consensus arrived at by the parties on 10/03/2026, unconstitutional, thereby inconsequential, null and void ab initio.* 1. *The Court be Pleased to issue directions in respect of repeat elections in respect of the Kenya Long Distance Truck Drivers and Allied Workers Union, Mombasa Branch Elections.* 2. *The Court be pleased to list the application for hearing alongside the Petitioners’ Notice of Motion Application dated 23/03/2026, scheduled for hearing on 14/04/2026.* 3. *The Court be Pleased to issue any Other or Further Orders as may be just and Expedient in the circumstances towards protecting the Dignity and Honour of this Honourable Court.* 4. *The costs of this Application shall be borne by the 1st and 3rd respondents, Jointly and Severally.* The application is supported by the Affidavit of the petitioners, ROMAN WAEMA, LUCY KANYI and AHMED OMAR, and on the grounds that there is a danger of miscarriage of justice manifested through the Acts and Omissions of the 1st, 3rd and 5th respondents, in respect of both the Judgment delivered herein on 30/04/2025 and Directions issued herein on 10/03/2026 and 24/03/2026, particularly in respect of the elections conducted on 24/03/2026. Through Correspondence by both the 1st and 5th Respondents on 10/03/2026 to 19/03/2026, they expressed intention to deviate from the Express Directions issued at the Court attendance on 10/03/2026, as well as the Spirit and Consensus reached at the joint meeting held immediately thereafter, and expressed acute intent to subvert the will of the membership of the 4th Respondent Union in respect of the Mombasa Branch Elections that were then scheduled to be conducted on 24/03/2026. Acting in collusion, the 1st, 3rd and 5th Respondents conducted sham elections on 24/03/2026. These elections are defective because the parties consented to the 5th Respondent harmonising the voters' register for the said Elections from lists of contributing members presented separately by both the 1st Petitioner and the 1st Respondent. The 5th Respondent unilaterally elected to render a Voters Register that only incorporated lists of members presented by the 1st Respondent, and further, rendered communication on 23/03/2026, the eve of the subject Elections, thus disallowing the Petitioners the opportunity to query the reasons for such action. The Voters’ Register was not made available to any of the Petitioners or Union Members before, during or after the said Elections. The petitioner avers in the Affidavit that the elections were conducted at a Canteen in the private premises of an Organisation, M/S KENFREIGHT LIMITED, a location that was inaccessible to the majority of the 4th Respondent Union’s Members, instead of the Union’s offices as earlier communicated by the 1st Respondent. Union Members attached to Suhara Transport (Kenya) Limited (previously Trading as Prime Fuels (K) Limited were precluded unconstitutionally from participating in the said Elections. The officials elected are aligned with and beneficiaries of the 1st Respondent’s unconscionable acts or omissions, hence the Petitioners’ concerns as regards the affairs of the Mombasa Branch of the Union as well as the National Union generally. The petitioners aver that the respondents have moved and conducted elections in contravention of the judgment herein and the court's orders, and are therefore in contempt of court. Unless the orders sought are issued, the petitioners will suffer grave injury and damage. The change of union officials should be stopped, subject to the proper conduct of the Mombasa branch elections. This will prevent defiance of court orders. In reply, the 1st and 3rd respondents aver that the petitioners' application is incompetent, as it seeks to subvert the will of the members of the 4th respondent. There is no dispute to be determined by the court; the elections and registration of new officials have already taken place. The respondents aver that on 24 March 2026, the elections of the 4th respondent were duly authorised and sanctioned by the court, in compliance with the court's directions dated 10 March 2026, in the presence of the petitioners. Any attempt to stop the elections on the material day was contrary to the court orders. The instant application is a waste of judicial time as the 5th respondent has already complied with section 35(2) and (5) of the Labour Relations Act (LRA) as regards the registration of the change of officials of the 4th respondent’s Mombasa branch in terms of elections conducted on 23 March 2026. Following the notice of change of officials, the petitioners should have filed an appeal against the decision of the 5th respondent, rather than filing this application seeking a stay of execution. With the registration of new officials, the orders sought are academic. The elections were conducted at an approved venue and overseen by the 5th respondent. The 5th respondent, as a public officer, cannot oversee a sham election as alleged. The elections were held as directed by the court. The respondents aver that the petitioners are abusing the court process by frustrating the 4th respondent, Mombasa branch, which is not functional, which aids in their private and illegal activities of obtaining money fraudulently from members in the name of collecting union dues, which they fail to deposit in the gazette account as required by law. The respondents aver that the mandate of the 5th respondent is to prepare and compile a verifiable and legitimate membership of paid-up members from the union records. In this regard, the 5th respondent verified that it had a legitimate register of union members because they were fully paid-up members of the 4th respondent. The petitioner’s list included persons who were not paid up to the 4th respondent and were therefore not recognised as members. The attempts by the petitioners to stop the conduct of elections are evident, and the present application is evidence of such intention, which should not be allowed. To become a 4th respondent member, one must pay union dues into the gazetted union account, which the petitioners have failed to do, and hence have come to court with unclean hands. The instant application should be dismissed with costs. **Determination** The petitioners are seeking a stay of the registration of the 4th respondent officials. In reply to the abandoned application dated 23 March 2026, the 5th respondent, Registrar of Trade Unions, filed a Replying Affidavit and attached the list of union officials now registered. This is pursuant to section 35 of the LRA. The 1st and 3rd respondents also corroborate the registration of new union officials following the elections. They have also attached Form Q and the registration fact with the 5th respondent. Upon the 5th respondent's registration of Form Q, the character of the dispute changed. An application as filed herein by the petitioners cannot address the legal implications of registering Form Q under the LRA; a separate and distinct procedure governs such registration. Indeed, the foundation of this petition was the elections previously held by the 4th respondent. Various issues arose, and the court has since delivered judgment. Within this framework, the 5th respondent issued a new notice calling for all trade unions to conduct their branch and national elections. The 4th respondent has since conducted its elections, with the effect of the submission of Form Q and its registration. The foundation of the suit herein is addressed, and judgment is issued. The new call for elections cannot be addressed under the same suit already heard and determined with finality. In reply to the instant application, the respondents assert that the petitioners have frustrated operations at the Mombasa branch by collecting union dues and failing to remit them to the registered account. These are serious allegations, and they are true; the petitioners should desist. Indeed, any employer who fails to remit union dues to the gazetted account commits a labour offence under section 50(8) of the LRA: ***(8) No employer shall—*** 1. ***fail to comply with an order or a notice issued under this Part;*** 2. ***deduct any money and not pay it into the account designated in the notice issued by the Minister; or*** 3. ***pay money into an account other than the account designated in the notice issued by the Minister.*** With regard to union officials, section 50(9) of the LRA mandates them to collect union dues and remit them to the designated union account as published by the Minister: ***(9) No person shall—*** 1. ***request that an employer pay money deducted in accordance with this section into an account other than the account designated by the Minister in the notice; or*** 2. ***use any money deducted in accordance with this section for any purpose other than the lawful activities of a trade union or a trade union federation.*** Thus, where there is non-compliance by the employer or a union official, they commit an offence under the LRA in terms of section 50(10) of the LRA: ***(10) An employer or any person who contravenes the provisions of this section commits an offence.*** In regulating union affairs, the officials listed by the 5th respondent as registered are the lawful officials of the 4th respondent, unless otherwise directed by the court or the 5th respondent. The petitioners shall abide by the lawful directions and instructions of the 4th respondent's registered officials. Regarding the costs requested by the petitioners in this application, taking into account that the foundation of the application under this petition has been spent, each party should bear its own costs. **Accordingly, the application dated 30 March 2026 is without merit. It is dismissed. Each party to pay its costs.** **Delivered in open court this 29th day of June 2026.** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistant: Samuel Maruga ……………………………………………… and …………………………………..………….