Harrison Omwenga Mariga v Kenya National Election Board of Kenya, National Union of Nurses & another [2016] KEELRC 753 (KLR)
The bottom line
#The court dismissed a nurse union election petition, ruling that founding officials are not permanently exempt from elections and constitutional petitions must specify the rights violated.
What this practically means
#Executive summary
#Key legal issues
#Interpretation of Chapter XIX(5) of the Union Constitution exempting founding officials from inaugural elections
The clause protects only the first set of officials when a union or branch is set up; it does not exempt the Petitioner from the 2016 elections, and the Petitioner's interpretation would infringe the requirement of elections every five years
The court held that union election timing is regulated by the Registrar of Trade Unions and elections are traditionally held every five years. Reading the clause as the Petitioner suggested would allow him to hold office for five years un-elected, infringing the union constitution's requirement of quinquennial elections. The Petitioner himself acknowledged he took office without election when the branch was started, and only raised the issue after losing the election.
Whether the Petitioner should be declared elected unopposed after his opponent's disqualification
No - an election where an ineligible candidate participated is not a valid unopposed election; fresh nominations and elections were properly ordered
Following Aloise A. Otiende v Boniface M. Munyao, the participation of a stranger/ineligible candidate invalidates an election because it closes out legitimately nominated candidates. The court noted the Respondents' inconsistency in first declaring the Petitioner elected unopposed and later cancelling that declaration, but held the later position correct, also noting members had voted 180 to 96 against the Petitioner.
Whether the petition disclosed a constitutional violation justifying a petition
No - the petition made no reference to any article of the Constitution or any infringed right, violating the Anarita Karimi Njeru principle, and ought to have been filed as a normal claim
Applying Anarita Karimi Njeru as reaffirmed in Mumo Matemu, the court found the petition set out no article of the Constitution said to be infringed or threatened. The only constitution referenced was the union's constitution. On that basis the petition was defective, though the court also reached the substantive union-constitution issues.
Legal principles established
#- A party seeking to enforce specific Bill of Rights must set out with particularity the specific right and how it was violated
- An election in which an ineligible candidate participated is not a legitimate election; fresh nominations and elections must be held
- The founding officials exemption in the union constitution means the first set of officials take office without election only at the initial establishment of a union or branch, not exemption from subsequent elections
Court orders
#- 1.The petition is dismissed for lack of merit
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Article 22 of the Constitution of Kenya 2010 (enforcement of Bill of Rights); Employment and Labour Relations Court jurisdiction over trade union election disputes under section 34(4) of the Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harrison Omwenga Mariga v Kenya National Election Board of Kenya, National Union of Nurses & another [2016] KEELRC 753 (KLR)", Case Analysis (2016). Petition No. 14 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/753/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.