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ELRCDismissedCause No E012 of 2021· [2025] KEELRC 3764 (KLR)

Kipkorir v Secretary General, Kenya Union of Post Primary Education Teachers & 2 others (Cause E012 of 2021) [2025] KEELRC 3764 (KLR)

Employment and Labour Relations Court
11 December 2025
6,029 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court dismissed a bid to overturn KUPPET's 2021 union elections, ruling that only union members can challenge union elections.

What this practically means

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Executive summary

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The Claimant filed a claim in March 2021 challenging the amendment of the 2nd Respondent union's (KUPPET) constitution without notice to members and seeking an order that the 2021 union elections be conducted under the old constitution. On 30th March, 2021 the court recorded a consent adopting a consent note dated 24th March, 2021, marking the matter fully settled. In an application dated 19th March, 2025, the Claimant, now acting through Polo & Company Advocates, sought to set aside the consent as a nullity procured by fraud, collusion and misrepresentation, contending she never instructed Mokono Ondieki & Co. Advocates, was not a member of KUPPET, and that the 2021 elections conducted virtually were invalid. She also sought a declaration that the 2021 elections were invalid and that offices filled thereby be declared vacant. The Respondents opposed, arguing Polo & Co. was not properly on record under Order 9 Rule 9 of the Civil Procedure Rules. The court framed three issues and held, first, that Order 9 Rule 9 did not apply because instructions to the deceased sole proprietor of the outgoing firm lapsed on his demise, so the application was validly filed. On the merits, the court found the Applicant had no locus standi, being admittedly not a member of the union, that nullification of elections was a substantive cause of action requiring a separate suit, that the 2021 elections were overtaken by events and incapable of being undone, and that the virtual elections were in any event permitted by the Registrar of Trade Unions. The only valid complaint - filing suit without instructions - was a matter against the deceased advocate, reportable to police and the Law Society of Kenya. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether Polo & Co. Advocates were properly on record under Order 9 Rule 9 of the Civil Procedure Rules

Holding

They were properly on record because the outgoing advocate, Mokono Ondieki, had died and instructions to him lapsed upon his demise, leaving no counsel on record

Reasoning

The Respondents argued Order 9 Rule 9 was mandatory and non-compliance was not curable by Article 159. The court accepted, uncontested, that the sole proprietor of the outgoing firm had died on 14th April, 2023. Since no consent of a deceased or non-existent outgoing firm could be obtained, the rule had no application, and the application was lawfully filed.

p. 9
02

Whether the consent dated 24th March, 2021 should be set aside on grounds of fraud, collusion and misrepresentation

Holding

No; the application was dismissed because the Applicant lacked locus standi, the reliefs were overtaken by events, and the virtual elections were in any event authorised by the Registrar of Trade Unions

Reasoning

Although the Applicant's lack of instructions to the original advocate was accepted as her only valid complaint, that complaint lay against the deceased advocate, not the Respondents. As a non-member of the union she had no interest in the union's elections or constitution, nullification was a substantive cause for a separate suit, and elections held in 2021 could not be undone four years later.

p. 11
03

Whether union elections conducted virtually were invalid for want of secret ballot

Holding

The prayer could not stand because the Registrar of Trade Unions had given permission for virtual elections on 30th March, 2021

Reasoning

The Applicant contended the consent procured virtual voting contrary to the union constitution and section 34(2)(b) of the Labour Relations Act. The court found that even absent the impugned consent, the virtual elections would have proceeded as scheduled pursuant to the Registrar's permission of 30th March, 2021, so nullity could not be premised on the consent alone.

p. 11

Legal principles established

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  • Instructions to an advocate lapse upon the advocate's demise, so where the advocate previously on record has died, Order 9 Rule 9 of the Civil Procedure Rules does not apply and new advocates may come on record without the consent or leave contemplated by that rule
  • Only a member of a trade union in good standing has locus standi to seek nullification of the union's elections or constitution
  • A court cannot grant orders that are not capable of being implemented; prayers rendered futile by subsequent events are overtaken by events

Court orders

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  1. 1.The application dated 19th March, 2025 is dismissed
  2. 2.Each party to bear its own costs of the application

Authorities

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Legislation

  • Employment Act, 2007Section 31A (as amended by Section 86 of the Finance Act, 2018)
  • Finance Act, 2018Section 86
  • Labour Relations Act, 2007Section 34
  • Labour Relations Act, 2007Section 33
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 10
  • Constitution of Kenya, 2010Article 159

Cases cited (15)

  • Ngome v Plantex Company Limited
    (1984) KLR 792
  • Kingsly Construction Limited v Federal Republic of South Africa & Another
    (Commercial Case E265 of 2019) [2024] KEHC 10579 (KLR)
  • Mombasa Highway Transport Limited v Gulf Africa Bank Limited
    2019 KEHC 12287 (KLR)
  • Abbas Kegode & Another v Registrar of Titles & 2 Others
    [2016] eKLR
  • Peter Kinuthia v Kenya Commercial Bank & 2 Others
    [2018] eKLR
  • Kenya National Union of Nurses v Kiambu County Public Service Board & Another
    [2018] eKLR
  • Joseph Kivota & Another v Simon Mwania Mbutu
    [2020] eKLR
  • Kivondo v Mutisya
    [2024] (KLR)
  • Flora N Wasike v Destimo Wamboko
    [1988] EKLR
  • Board of Trustees National Social Security Fund v Michael Mwalo
    [2015] eKLR
  • Kenya Commercial Bank Limited v Specialized Engineering Co. Limited
    (1982) KLR 485
  • Intercounty Importers and Exporters Limited v Teleposta Pension Scheme Registered Trustees & 5 Others
    (2019) eKLR
  • Kazungu Kitsao Kivuma v George Kuria Muthoni
    [2021] eKLR
  • James Ndonyu Njogu v Muriuki Macharia
    [2020] eKLR
  • Republic v Chief of General Staff & Another
    Civil Appeal No. 19 of 2014 (2017) eKLR
Jurisdiction invoked
Original jurisdiction under the Labour Relations Act (trade union election disputes referable to the Industrial Court under section 34(4)); no specific constitutional article invoked for jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kipkorir v Secretary General, Kenya Union of Post Primary Education Teachers & 2 others (Cause E012 of 2021) [2025] KEELRC 3764 (KLR)", Case Analysis (2025). Cause No E012 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3764/eng@2025-12-11

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