https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1634

Wekunda & 3 others v Election Board, Kenya County Government Workers Union & 11 others (Petition E001 of 2026) [2026] KEELRC 1634 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1634 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Bungoma Petition E001 of 2026 DN Nderitu, J June 11, 2026 Between Kennedy Wafula Wekunda 1st Petitioner Elizabeth Nelima Wekesa 2nd Petitioner Albert Wanjala 3rd Petitioner Isaiah Barasa Wanyama 4th Petitioner and Election Board, Kenya County Government Workers Union 1st Respondent Registrar of Trade Union, State department & Skills Development 2nd Respondent Lawrence Ngwala 3rd Respondent Florian Sifuna Nganga 4th Respondent Kennedy Mukheri Wanyama 5th Respondent Oscar Namusasi Sifuna 6th Respondent Naftali Makokha Wandabwa 7th Respondent Paul Wanjala Khaemba 8th Respondent George Muyundi Peter 9th Respondent Juliet Kiluhiri Karani 10th Respondent Marystella Nafuna Wamalwa 11th Respondent Robert Simiyu Masinde 12th Respondent Ruling I. Introduction & Background 1.In a petition dated 23rd January 2026 filed through Muri Mbugua & Associates, the Petitioners are seeking for the following reliefs –1.A declaration that the elections held on 17th January 2026 are null and void2.A declaration that the 4th -12th respondents were not validly elected;3.An order do issue that a fresh election to be conduct within 90 days.4.The costs of this petition be borne by the respondents5.Any other order r determination that this Honourable court may grant in the interest of justice. 2.Contemporaneously, the Petitioners filed a Notice of Motion (the application) of even date seeking for the following reliefs –1.Spent.2.Pending the hearing and determination on this petition, this Honourabe court do issue a temporary order restraining 2nd respondent from gazettement of the 4th -12th respondents as the elected members.3.That the Honourable be pleased to issue an order maintaining the status quo as at 16th January, 2026 with regards to the officials of County Government Workers Union ( Kenya) – Bungoma Branch pending the hearing and determination of this petition.4.That the returning officer (3rd respondent) be compelled to produce the list of voters who participated in the election.5.This Honourable Court do issue any other order it may deem fit in the interest of justice and preservation of the subject matter of this suit.6.The costs of this petition be provided for. 3.The application is supported with the affidavit of the 1st Petitioner sworn on even date with several annexures thereto. 4.In response to the petition and the application, all the Respondents (except the 2nd) represented by Njuguna Mwaura & Co Advocates, filed an affidavit sworn by Roba Sharu Duba, the secretary general of the Kenya County Government Workers Union (the union), sworn on 23rd February 2026. 5.By consent, the application was canvassed by way of written submissions. Mr. Mbugua for the Petitioners filed written submissions dated 27th February 2027 and Mr. Oginga for the Respondents, except the 2nd, filed written submissions of even date. II. Evidence 6.In the supporting affidavit by the 1st Petitioner, the hitherto chairperson of the union’s Bungoma Branch, it is stated that the Bungoma Branch union elections were held on 17th January 2026 for various positions. 7.It is deposed that the elections were flawed in that persons who were not eligible to participate in the elections, including casual workers, were allowed to vote in contravention of various provisions of the constitution of the union. It is further deposed that there were two separate voter registers on the day of voting, yet the accurate register is the one that was issued on 21st November 2025. 8.It is further deposed that the election was flawed and unlawful and hence the Petitioners lodged a formal complaint with the 1st Respondent on 19th January 2026. 9.It is on the basis of the foregoing that the deponent pleaded that the application be allowed as prayed, pending the hearing and determination of the petition. 10.The 2nd Respondent, though duly served, did not participate in these proceedings. 11.In the replying affidavit for and on behalf of all the Respondents, except the 2nd, Roba Sharu Duba, the General Secretary of the union, deposed that the Bungoma Branch elections of the union were conducted by the 1st Respondent on 17th January 2026 based on a circular issued by the 2nd Respondent on 25th September 2025. 12.It is further deposed that the said elections were held and conducted in strict adherence to the constitution of the union, the Labour Relations Act, and all other applicable laws, rules, and regulations. It is stated that the casual workers that were allowed to vote are bona fide members of the union entitled to enjoy all the rights and privileges appurtenant thereto. 13.It is further deposed that the alleged casual workers were actually ordered and confirmed to be permanent and pensionable members of the County Government of Bungoma vide numerous court orders issued in Bungoma ELRC Petition No. 1 of 2019 – Kenya County Government Workers Union, Bungoma Branch V Bungoma County Public Service Board & Another. It is stated that the 463 employees are indeed bona fide members of the union and were legally eligible to vote in the said branch elections. 14.It is deposed that the Petitioners have not availed any evidence of the names of the allegedly ineligible persons who were allowed to vote in the said elections. It is reiterated that the elections were held and conducted in strict adherence to the applicable laws. II. Submissions By Counsel 15.Counsel for the Petitioners identified the issue determination by the court as – Whether the elections held on 17th January 2026 complied with the provisions of Article 26(12) & (15) of the County Government Workers Union (Kenya). 16.It is submitted that the General Secretary of the union in a letter dated 17th January 2026 unlawfully directed the returning officer in the elections to allow all the 463 casual workers of the County Government of Bungoma to vote yet, there is no evidence that the said casual workers were in the payroll. 17.It is submitted that no pay-slips have been availed for the said workers and that their being allowed to vote in the elections disadvantaged the Petitioners as they could not reach them during the campaigns. It is further submitted that no evidence was availed confirming that the said workers had paid union dues. 18.Counsel for the Respondents, except the 2nd, identified the issue for determination as – Whether the Petitioners herein are entitled to the orders sought in the application. 19.It is submitted that the submissions by the counsel for the Petitioners are premised on the substantive orders in the petition rather than concentrating on the interim orders sought in the application. The court is urged to avoid prejudging the case and concentrate on the instant application. 20.Citing Geilla V Cassman Brown & Co Ltd (1973) EA and Nguruman Limited V Jan Bonde Nielson & 2 Others (2014) eKLR, it is submitted that it was upon the Petitioners/Applicants to demonstrate a prima facie case, demonstrate irreparable loss, damage, or injury, if the interim order is denied and that, in case of doubts the court should weigh the balance of convenience. It is emphasized that the above factors are cumulative rather than isolated. 21.In regard to prima facie case, it is submitted that the Petitioners failed to demonstrate a clear or probable case of violation of their constitutional, legal, or equitable rights. It is further submitted that it was upon the Petitioners to demonstrate that indeed the alleged 463 employees of the County Government of Bungoma were not eligible to vote, alongside availing evidence in support of the allegation that the elections were flawed. It is submitted that the Petitioners failed to discharge that burden. 22.It is submitted that even if there were no orders issued in favour of the 463 employees in Bungoma ELRC Petition No. 1 of 2019 (supra) declaring them bona fide permanent and pensionable employees of the County Government of Bungoma, the said employees are still recognized as employees under Sections 2 & 18 of the Employment Act and hence entitled to be members of the union. 23.On irreparable loss, harm, or injury, it is vehemently submitted that the Petitioners did not allege, demonstrate, or prove eminent loss, damage, or injury in case the application is denied. 24.On the balance of convenience, it is submitted that if the application is allowed, it is indeed the Respondents who shall suffer great inconvenience in case the proceedings are ultimately decided in the favour of the Respondents – the petition is dismissed. It is submitted that the balance of convenience tilts heavily in favour of the court not granting the interim orders sought as the union deserves officials in office to engage in union activities such as negotiation, execution, and registration of collective bargaining agreements (CBAs), and other related activities including recruitment of members. Analysis & Determination 25.This is not a difficult application for the court to determine. It is a cardinal principle in law that he/she who alleges must prove. It was thus incumbent upon the Petitioners to, at this interlocutory stage, demonstrate a prima facie case against the Respondents. A prima facie case is not necessarily one that must succeed but one that raises serious triable issues as to persuade the court to issue interim orders to maintain or preserve the status quo, pending the hearing and determination of the main petition. 26.This application is a classic one for the application of the principles well laid in Geilla V Cassman Brown Ltd (supra) as adopted and applied in many other cases and decisions. 27.The principles for the grant or denial of interim or interlocutory or conservatory and injunctive orders have been well tackled by counsel for the Respondents. Firstly, the Petitioners needed to demonstrate a prima facie case and, secondly, demonstrate the likelihood of irreparable loss, injury, or loss in case the interim orders are denied. The two foregoing factors are cumulative. It is only where the court is still in doubt, after cumulatively considering the two principles, that it should consider the balance of convenience. 28.In Mrao V First American Bank of Kenya Limited & 2 Others (2003) eKLR it was delivered that a prima facie case is more than just an arguable case. On the face of it, an applicant must demonstrate a clear infringement of his/her legal rights and that the case has high chances of success. 29.In my considered view, the Petitioners failed to demonstrate a prima facie case. Other than alleging that persons who were not members of the union were allowed to vote in the election, no evidence in support thereof was availed. Who were those persons? What are their names? Where is the voters’ register to confirm that they are not members of the union and hence were not eligible to vote? 30.The court is aware and well versed with the proceedings in Bungoma ELRC Petition No. 1 of 2019 (supra). The court is aware that the contested 463 employees of the County Government of Bungoma were ordered to be engaged on permanent and pensionable terms in a judgment delivered in that petition. The court is also aware that they ought to have been absorbed into the workforce and hence into the pay-roll. Equity treats as done that which ought to be done. 31.It is not a way of demonstrating a prima facie case for the Petitioners to throw allegations out there in the air and expect the Respondents to fill-in the gaps for them in their responses. 32.It is not the Petitioners’ case that they were either denied to campaign amongst all members of the union, including the 463, or that any of their supporters were denied the right to vote. There is also no evidence availed by the Petitioners demonstrating that persons who are not members of the union actually voted. 33.For the reasons above, the Petitioners failed at the first hurdle. They did no demonstrate a prima facie case against the Respondents. 34.Having failed the first test, the court should leave the matter at that and proceed to dismissing the application. However, for completeness, the court shall comment on the other two principles. 35.On irreparable loss, injury, or damage, the court takes the view that the Petitioners did not demonstrate that they will suffer immensely if the interim orders are denied. This is so because, no prima facie case has been established and, if the court finally finds in their favour the elections and all consequential events may be declared null and void and, the court may further order for their monetary compensation by way of damages and costs. 36.For the foregoing reasons, the balance of convenience heavily tilts in favour of the court not granting the interim orders sought at this stage.III.Ordersi.The Notice of motion by the Petitioners dated 23rd January 2026 is without merits and the same is hereby dismissed.ii.Costs in the cause. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 11TH DAY OF JUNE 2026.....................................DAVID NDERITUJUDGEELRC BUNGOMA