Benjamin & 40 others v Kenya Medical Practitioners & Dentists Union & another; Commissioner for Labour & 73 others (Interested Parties) (Petition E080 of 2021) [2021] KEELRC 2314 (KLR)
The bottom line
#A Kenyan court ordered independent verification of a union's e-voting records instead of cancelling results, setting a proof burden for election challengers.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should issue conservatory orders restraining the officials gazetted as elected in the 6th May 2021 union elections from conducting business for the 1st Respondent
- 2.Whether the Petitioners should be granted read-only access to the election servers to verify the voting and tallying processes
- 3.Whether the election was conducted in compliance with the law, including the requirement of unveiling officials at the May Annual Delegates Conference
- 4.Whether the Petition are time-barred against the 1st Interested Party
Key legal issues
#Burden of proof in challenging the validity of union elections
The Petitioner must prove non-compliance with the law and that such failure affected the validity of the elections; the presumption of regularity applies, but the Respondent bears the burden of proving the contrary once non-compliance is alleged
The court applied the maxim omnia presumuntur rite et solemniter esse acta, holding that alleged departures from legal prescriptions must be demonstrated with credible evidence. It found the abrupt postponement of the elections from 29th April to 6th May 2021 raised prima facie doubt as to the veracity of the poll, warranting verification of the electronic records.
Transparency and verification of e-voting results
Where the electoral process raises prima facie doubt, the court will order opening of the servers for read-only scrutiny rather than nullification
The court noted the abrupt change of election date and the refusal to allow end-to-end audit verification, finding reason to allow the servers to be opened. It ordered supervised read-only access through the Deputy Registrar rather than nullifying the results, consistent with the Petitioners' position that nullification should only occur if winners cannot be ascertained.
Legal principles established
#- A petitioner alleging non-conformity with the law in an election must prove both non-compliance and that it affected the validity of the election
- All acts are presumed to have been done rightly and regularly (omnia presumuntur rite et solemniter esse acta)
Court orders
#- 1.The electronic record of the elections held on 6th May 2021 be availed within 48 hours of the Ruling
- 2.Access to the electronic record to be 'read only' access supervised by the Deputy Registrar of the Court, facilitated by the Petitioners, 1st Respondent and 1st Interested Party
- 3.Results of the scrutiny to be filed within 2 days of access being granted
- 4.Matter to be mentioned on 14th December 2021 to ascertain the results and for further orders
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Jurisdiction of the Industrial/ELRC over trade union election disputes; Section 30 of the Labour Relations Act (appellate jurisdiction over Registrar of Trade Unions decisions) invoked by the 1st Interested Party
Relief refused
#Substantive conservatory orders restraining gazetted officials and directing Trustees to meet administrative costs pending AGM/ADC
The court instead issued an interim scrutiny order; the broader conservatory orders were not granted at this interlocutory stage, with further orders reserved to the mention date
Costs
No final costs order made; the 1st Interested Party requested not to be condemned to pay costs for carrying out official duties; costs to be in the cause was sought by the Applicants but no costs order was pronounced in the ruling
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
where a party alleges non-conformity with the law in regard to a particular election, the Petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did in fact afiect the validity of the elections.
The Latin maxim Omnia presumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly; comes into play.
To that end the Court will issue an order directing the electronic record of the elections held on 6th May 2021 be availed within 48 hours of the Ruling herein and such access to be "read only" access to be supervised by the Deputy Registrar of this Court
Matter will be mentioned on 14th December 2021 to ascertain the results and for further orders.
Issues in the judgment
#The judgment appears to be an interlocutory Ruling on a Notice of Motion dated 27th May 2021, yet is styled as deciding the Petition; the relief sought (conservatory orders) is only partially addressed, with further orders deferred to a mention date
Roles of the 2nd Respondent and 1st Interested Party appear conflated in the judgment; the Replying Affidavit of Elizabeth Gicheha is sworn for the 2nd Respondent and 1st Interested Party, while submissions attribute the Registrar of Trade Unions role to the 1st Interested Party and describe the 2nd Respondent as the Commissioner for Labour presiding over elections
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin & 40 others v Kenya Medical Practitioners & Dentists Union & another; Commissioner for Labour & 73 others (Interested Parties) (Petition E080 of 2021) [2021] KEELRC 2314 (KLR)", Case Analysis (2021). Notice of Motion dated 27th May 2021 (petition filed 11th June 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2314/eng@2021-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.