Mahamed & another v Cabinet Secretary, Ministry of Labour & Social Protection & 11 others (Constitutional Petition E088 of 2026) [2026] KEELRC 2433 (KLR)
The bottom line
#Kenya's Employment and Labour Relations Court struck out a public-interest challenge to COTU-K's 2026 elections, holding only union members and affiliates can sue over union elections.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioners had locus standi and whether the court had jurisdiction
The court held it had no jurisdiction; the Petitioners, as non-members acting in the public interest, were strangers to COTU-K and could not invoke public interest standing to challenge a trade union's internal elections
The court accepted that Articles 22 and 258 liberalise standing generally, but held that trade unions are private entities whose internal electoral disputes are governed by the Labour Relations Act and union constitutions. Applying the Supreme Court's decision in Moi Teaching and Referral Hospital v Gikenyi, persons not in an employment or labour relations relationship with the respondents cannot invoke the ELRC's jurisdiction. The petitioners' cause of action was an election dispute in constitutional disguise.
The legal status of the Registrar's Circular dated 25th September 2025
The Circular was a purely administrative document without statutory force; non-compliance with it could not ground a constitutional claim or invalidate the elections
The court agreed with the respondents that the Circular was not a statutory instrument or subsidiary legislation and could not override the Labour Relations Act or registered union constitutions. The Act and the union constitutions provide the detailed framework for conducting elections and resolving disputes, and the 5th Respondent had complied with Section 35 by submitting Form Q within fourteen days.
Whether the Petition should have been brought as a trade union election petition under Section 34(4) of the Labour Relations Act and the Trade Union Election Disputes Practice Directions
Yes - the cause of action fell under Section 34(4) and the court's special procedure for trade union election disputes, so framing it as a constitutional petition amounted to constitutional avoidance
The court noted the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025, which require an election petition to expressly invoke Section 34(4). Relying on Speaker of the National Assembly v Karume, where a clear procedure exists it must be strictly followed. The allegations may have raised triable issues in an election petition brought by proper parties, but not in a constitutional petition by strangers.
Legal principles established
#- Where there is a clear procedure for the redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed; a party cannot disguise a trade union election dispute as a constitutional petition
- Public interest standing under Articles 22 and 258 does not extend to strangers challenging the internal affairs of trade unions and federations, which are governed by their constituent constitutions and the Labour Relations Act
- An administrative circular lacking statutory authority cannot found a constitutional cause of action
- The ELRC's jurisdiction over trade union election disputes requires employment/labour relations standing - members, officials, candidates or affiliate unions may sue, not public-interest strangers
Court orders
#- 1.The Petition is struck out for want of jurisdiction
- 2.Each party to bear its own costs
- 3.The file is marked as closed
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act; Section 34(4) of the Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mahamed & another v Cabinet Secretary, Ministry of Labour & Social Protection & 11 others (Constitutional Petition E088 of 2026) [2026] KEELRC 2433 (KLR)", Case Analysis (2026). Petition No. E088 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2433/eng@2026-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.