Munderu & 6 others v Panyako, the General Secretary, Kenya National Union of Nurses & 2 others (Cause E681 of 2020) [2022] KEELRC 1417 (KLR)

The court applied the Supreme Court's statement of the sub-judice rule requiring the same parties and same subject matter. The respondents did not produce the pleadings in Eldoret Petition No. 6 of 2020 to allow comparison of causes of action. The ruling relied on did not mention registration of constitutional changes, and the Registrar's report did not address the lawfulness of the October 2020 amendments, so the requirements of the doctrine were not established.

Section 30 requires an appeal against a decision of the Registrar within 30 days. The letter relied on by the respondents dealt with amendments ratified at the Special National Governing Council of 9th to 12th November 2016, whereas the suit concerns amendments made on 23rd October 2020. Since the Registrar made no determination on the challenged amendments, no appeal lay under Section 30.

Chapter XXII of the union constitution required a national referendum and ratification at a National or Special Governing Council meeting, and the First Schedule to the Act mandates secret ballot for constitutional amendments. Approval by a virtual National Governing Council meeting on 14th July 2021, and the absence of any evidence of a referendum question shared with all 47 counties, breached both the union constitution and the Act.

Section 34(2)(a) forbids provisions discriminating unfairly between incumbents and other candidates; Section 31 requires only engagement in the sector and Section 33 eligibility to vote. Section 31 of the Act permits only a literacy requirement, not a degree. Article 41 guarantees every member the right to participate in union activities, so exclusions based on qualifications outside the law are unconstitutional and entrench incumbents.