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ELRCStruck OutPetition No. E050 of 2024· [2025] KEELRC 489 (KLR)

Hadullo & another v Registrar of Trade Unions & 3 others (Petition E050 of 2024) [2025] KEELRC 489 (KLR)

Employment and Labour Relations Court
24 February 2025
3,686 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out a petition against KUPPET, ruling that a union official's removal dispute belongs in an ordinary employment cause, not a constitutional petition.

What this practically means

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Executive summary

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The Petitioners, teachers and members of the 2nd respondent union, filed a Petition on 16th December 2024 seeking, among others, orders restraining the respondents from filling the vacant position of National Assistant Treasurer following the removal of Mr. Ronald Kiprotich Tonui, together with orders of certiorari, mandamus and declarations. The 2nd and 3rd respondents raised a Notice of Preliminary Objection contending that the Petition did not meet the constitutional petition threshold, was sub judice Nairobi ELRC Petition No. 28 of 2016, that the Petitioners lacked locus standi, and that the real complainant had not exhausted internal dispute resolution mechanisms. The court framed two issues: whether there was a competent Preliminary Objection and whether it was merited. Applying Mukisa Biscuit, the court found the objection competent. The sub judice ground failed for want of particulars of the earlier petition, which had been closed by consent, and the court found the Petitioners had standing under Articles 22 and 258. However, the court held that the pith and substance of the dispute - the removal of a union official - fell under Section 12(1)(g) of the ELRC Act; the rights cited (fair labour practices, fair hearing, fair administrative action) are ordinarily canvassed in ordinary claims and raised no constitutional issue. The Petition also fell foul of the exhaustion doctrine. The court struck out the Petition to facilitate its filing as a cause and ordered each party to bear their own costs.

Key legal issues

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01

Whether the Notice of Preliminary Objection meets the threshold of a Preliminary Objection

Holding

The court was satisfied that, viewed in their totality, the grounds raised met the threshold of a proper preliminary objection.

Reasoning

Guided by Mukisa Biscuit, the court observed that although some grounds touched on facts, the respondents' objection, taken as a whole, comprised pure points of law such as jurisdiction and standing capable of disposing of the suit at a preliminary stage.

p. 4
02

Whether the Petition is sub judice ELRC Petition No. 28 of 2016

Holding

The sub judice objection failed because the respondents did not provide details of the earlier petition to enable comparison of the issues.

Reasoning

Section 6 of the Civil Procedure Act bars trial where the matter is directly and substantially in issue in a pending suit. The court found the earlier file closed by consent and the respondents had not shown which issues were directly and substantially in issue, making the comparison impossible.

p. 5
03

Whether the Petitioners have locus standi

Holding

The Petitioners, as members of the union, had standing under Articles 22 and 258 of the Constitution.

Reasoning

Articles 22 and 258 confer standing on every person, and public interest litigation enjoys broadened locus standi per the Supreme Court in Mumo Matemu. Though the Petitioners did not demonstrate a specific public interest element, the court was persuaded they had standing to sue.

p. 7
04

Whether the Petition meets the Anarita Karimi Njeru threshold and raises a constitutional issue

Holding

The Petition did not meet the constitutional petition threshold; the dispute over removal of a union official falls under Section 12(1)(g) of the ELRC Act and should have been filed as a cause.

Reasoning

Although various Articles were cited, only Articles 41, 47 and 50(1) were relied upon, and those are typically canvassed in ordinary employment claims. The petition raised no issue requiring constitutional interpretation and was thus an abuse of process warranting striking out.

p. 8
05

Whether the doctrine of exhaustion barred the Petition

Holding

The court found no demonstration that internal dispute resolution mechanisms had been exhausted or that the matter fell within the statutory exceptions.

Reasoning

Under the Fair Administrative Action Act and case law, courts are a last resort. The Petition followed an earlier suit struck out for non-exhaustion of internal mechanisms, and the Petitioners did not show efforts to resolve the dispute internally nor invoke the exceptions under Section 9(4) of the FAAA.

p. 5

Legal principles established

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  • A constitutional petition must set out with reasonable precision the provisions of the Constitution said to be infringed and the manner of infringement.
  • Rights that can be enforced under ordinary statutory frameworks should not be litigated as constitutional petitions.

Court orders

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  1. 1.The instant Petition is struck out to facilitate its filing as a cause for hearing and determination.
  2. 2.Each party to bear their own costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 3, 10(1)&(2), 21(1), 22(1), 23(1), 258, 27(1), 28, 35, 41, 47, 50(1), 162(2), 159, 259(1), 48
  • Employment and Labour Relations Court ActSections 12, 12(1)(g), 12(4)
  • Civil Procedure ActSection 6
  • Fair Administrative Action ActSection 9(4)
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (20)

  • Anarita Karimi Njeru V Republic
    [1970] eKLR
  • Mumo Matemu V Trusted Society of Human Rights Allied & 5 Others
    [2013] eKLR
  • Robert Nyabuto Nyabwocha V Ronald Kiprotich Tonui and KUPPET
    ELRC PET. NO. 28 of 2016
  • Elija Sikona & George Pariken Narok on behalf of Trusted Society of Human Rights Alliance V Mara Conservancy & 5 Others
    [2014] eKLR
  • Business Partners Kenya Ltd V Otundo & Another
    KEHC 3288 (KLR)
  • Kenya National Human Rights Commission V Attorney General & IEBC & 16 Others
    [2020] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd
    [1969] EA 696
  • Oraro V Mbaja
    [1975]
  • Republic V Eldoret Water Sanitation Co. Ltd Ex Parte Booker Onyango & 2 Others
    [2007] eKLR
  • Speaker of National Assembly V James Njenga Karume
    [1992] eKLR
  • Republic V Commissioner General Kenya Revenue Authority Ex Parte Sanofi Aventis Ltd
    [2019] eKLR
  • Geofirey Muthinja Kabiru & 2 Others V Samuel Munga Henry & 1756 Others
    [2015] eKLR
  • William Odhiambo Ramogi & 3 Others V Attorney General & 4 Others: Muslim for Human Rights and 2 Others (Interested Parties)
    [2020] eKLR
  • Republic V Independent Electoral and Boundaries Commission & Others Ex Parte The National Super Alliance (NASA) Kenya
  • Republic V Dadan Kimathi University of Technology Ex Parte Muia Stephen Mutuku
    [2022] KEHC 358 (KLR)
  • Albert Ratori & J. A. Wanywela on behalf of Kenya Bankers Association V The Minister for Finance & Attorney General & Central Bank of Kenya
  • John Harun Mwau & 3 Others V Attorney General & 2 Others
    [2012] eKLR
  • Kiambu County Tenants Welfare Association V Attorney General & Another
    [2017] eKLR
  • Hakiziman Abdul Abdulkarim V Arrow Motors EA Ltd & Another
    [2017] eKLR
  • Alponse Mwangemi Munga & Others V African Safari Club Ltd
    [2008] eKLR
Jurisdiction invoked
Articles 22, 23 and 258 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hadullo & another v Registrar of Trade Unions & 3 others (Petition E050 of 2024) [2025] KEELRC 489 (KLR)", Case Analysis (2025). Petition No. E050 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/489/eng@2025-02-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.