Ojuka & 2 others v Chebii & 3 others

18 of the LRA with the Registrar of Trade Unions to challenge the unlawful amendments to the union constitution in exercise of their rights under sections 4, 5, 11, and 34(2) of the LRA. The unlawful suspension is therefore meant to punish the petitioners by withholding their salaries and allowances accruing to their positions in the union. Unless the court issues conservator orders protecting the petitioners herein, they will suffer loss and damage. The 1st and 2nd respondents filed the Replying Affidavit of Rev. Joel Kandie Chebii, the National General Secretary, who avers that the petitioners were officials of the 2 nd respondent union until 13 May 2026, when they were suspended pending investigations into their misconduct of making false claims to the office of the 3rd respondent. Rev. Chebii avers that the false claims were made to mislead delegates who attended the union quinquennial conference held on 22 January 2026. The petitioners faced serious allegations touching on insubordination while in office and poor performance of their duties within the organization particularly the conduct of proceedings and communication of resolutions made at the conference to the 3rd respondent office. Instead of the petitioners raising objections to the union structures, they opted to raise them with the 3rd respondent contrary to the union constitution. The 3 rd respondent has since established that these objections lack merit. The NEC thus passed a resolution suspending the petitioners. The suspension is registered with the 3rd respondent. The allegations thus made by the petitioners are without merit. Action was taken under Rule 11(h) of the union constitution. The EC subjected the petitioners to a disciplinary process, but they refused to attend on 13 May 2026 as scheduled. The petitioners have not addressed the case against them for insubordination, which was carried out in adherence to the LRA and the Union constitution. The application seeking conservatory orders should thus be dismissed with costs. In reply, the 3rd respondent filed the Replying Affidavit of Ann Kanake, the Registrar of Trade Unions, who avers that the petitioners' application is overtaken by events and is an abuse of court process. Rule 4 of the Union constitution and section 27 of the LRA provide an ELRC NAIROBI RULING PETITION NO. E174 OF 2026 2

page 2 of 7

elaborate procedure for amending the Union constitution. Section 27(2) of the LRA, the documents required to be submitted to the office of the Registrar of Trade Unions are: a) Notice signed by the secretary. b) Copy of the resolution of the proposed changes. c) Certificate signed by the secretary confirming that the resolution was passed in accordance with the union constitution and rules. The petitioner alleges that in the absence of the chairman’s signature, the minutes are invalid, but under the law and the LRA, such a signature is not mandatory. The LRA provisions under section 27 were followed. Upon the application for amendment of the union constitution, the office commenced the statutory process and published a Gazette Notice inviting objections from members of the union within 21 days in terms of section 27(4) of the LRA. The petitioners wrote on 22 April 2026, and under section 27(4) of the LRA, the Registrar of Trade Unions placed the same with the 2nd respondent. The secretary replied to the same on 5 May 2026, confirming adherence to the law. Ms Kanake avers in reply that changes to the union officials were effected on 12 May 2026, as required by law. In Ambasa & 4 others v National Executive Council of the Kenya National Union of Teachers & 3 others [2023] eKLR, the court held that parties who fail to pursue objection mechanisms under section 27(4) of the LRA cannot prematurely invoke the court's jurisdiction before the Registrar invokes the statutory process. In Kadukha & 3 others v Kenya National Private Security Workers Union (KNSPSWU) & 2 others; Yongo & 11 others (interested parties) [2024] eKLR, the court held that any aggrieved member must first raise objections before the Registrar within 21 days. The petitioners have failed to address their objections in accordance with the law, and the orders sought should not be issued. In reply, the 3rd and 4th respondents also filed Grounds of Opposition which relate to the Petition. For the application dated 27 May 2026, the petitioners submitted that the issue in dispute is their dismissal from office by the 1st and 2nd respondents without due process. Section 5 of the LRA protects employees against discrimination and victimisation for pursuing a right under ELRC NAIROBI RULING PETITION NO. E174 OF 2026 3

page 3 of 7

the LRA. The petitioners have been victimised for challenging the unlawful amendments to the Constitution of India. In the victimisation, the NEC of the 2nd respondent did not conduct a hearing; the orders sought in the application should be allowed, and the respondents are ordered to pay the salaries and allowances due for the offices held by the petitioners. The petitioners had taken loans based on their salaries and allowances from the 2 nd respondent but cannot process them following the suspension that is herein challenged for being devoid of due process. The petitioners submitted that the 1 st and 2nd respondents have not disputed the petitioners' suspension. They challenged unlawful amendments to the union constitution that have resulted in their victimisation. In reply, the 1st and 2nd respondents submitted that the suspension of the petitioners is official, that there has been communication to the 3 rd respondent, who has since registered the same, and that the suspension has taken effect. On 13 May 2026, the changes took effect and were gazetted. The petitioners were invited to a meeting with NEC following a charge of insubordination and poor performance of duty, but they failed to attend. There is no case of discriminatory treatment or victimisation as alleged. Despite being invited to a disciplinary hearing, the petitioners opted to stay away. There is nothing to stay or conserve the 3 rd respondent, having registered the suspension and issued a Gazette Notice to this effect. The 1st and 2nd respondents also submitted that the petitioners have filed multiple petitions in abuse of court process. There is Nairobi ELRC Petition No. E142 of 2026 touching on a similar matter challenging the amendment of the 2nd respondent constitution. There is Nyeri ELRC Petition E009 of 2026 on the same subject between the same parties. Such abuse of the court process should not be condoned, and the instant application should be dismissed with costs. Determination In the application dated 27 May 2026, the petitioners seek a conservatory order directing the release of their salaries and allowances and the restoration of the status quo ante that existed before their suspension. The petitioners' case is that the failure to pay salaries and allowances has affected them, as they have secured bank loans and are unable to service them. They have ELRC NAIROBI RULING PETITION NO. E174 OF 2026 4

page 4 of 7

suffered victimisation and discriminatory treatment by the respondents for challenging the unlawful constitutional amendments of the 2nd respondent constitution. The 1st and 2nd respondents assert that the petitioners were suspended after being invited to a disciplinary hearing before the NEC on 13 May 2026, and that they failed to attend. They were accused of making false allegations against the 3rd respondent, insubordination, poor performance, and poor communication during the conference held on 22 January 2026. Instead of raising their complaints through the internal mechanisms under the union constitution, the petitioners opted to file objections with the 3rd respondent. The 3rd and 4th respondents assert that the petitioners' suspension has since taken effect. There is registration of the union officials on 13 May 2026, and a Gazette Notice is issued. There is nothing to conserve. One of the foundational changes to our laws in 2007 was the enactment of the LRA. It allows for self-regulation within trade unions. Under section 34 of the LRA, a trade union constitution is one of the primary tools to secure self-regulation. Indeed, in Republic v Registrar of Trade Unions, Ministry of Labour and Social Protection; Ex parte Kenya Union of Clinical Officers; Attorney General (Interested Party) [2021] KEELRC 1584 (KLR), the court held that section 34 of the LRA does not just deal with the union elections but with the fact of its constitution regulating all its affairs. Without the union constitution, the affairs and its operations would grind to a halt. There thus exists a very important function of a union constitution. Beyond the LRA, the court must recognise the mechanisms under a trade union constitution that allow for suspension and the role of the union organs thereof, as held in Noah Rotich & 6 Others v Union of Kenya Civil Servants & Another [2018] eKLR. Indeed, as held in Ambasa & 4 others v National Executive Council of the Kenya National Union of Teachers & 3 others [2023] KEELRC 2826 (KLR), the court appreciated that trade unions should be allowed to self-regulate unless there is a clear violation of the constitution or the law. Such a matter must be demonstrated by the applicant to permit the court to interfere with the mandate granted to the trade union to regulate its affairs. Indeed, I must add, the court should rarely seek to micro-manage the trade union in its affairs, taking into account the role and mandate given to the office of the 3 rd respondent and ELRC NAIROBI RULING PETITION NO. E174 OF 2026 5

page 5 of 7

the governing procedures set out under the LRA vis-à-vis the trade union constitution, as with the 2nd respondent. Before their suspension from office, the petitioners were issued with notices to attend before NEC on 13 May 2026. They do not dispute that they did not attend. Although there are objections filed with the 3rd respondent on 22 April 2026, these relate to the alleged unlawful constitutional amendments of the 2nd respondent constitutionally and not the suspension from office of the subject herein. The alleged unlawful amendment to the union constitution is the primary issue addressed in Nairobi ELRC petition No. E147 of 2026. Such matter is different and separate from herein. The question of the petitioners' suspension from office must thus be interrogated based on the 2nd respondent union's constitution and whether it met the threshold thereof vis-à-vis the LRA. To seek the parties to revert to the position subsisting before the alleged unlawful suspension would be to ignore section 34 of the LRA and the facts addressed by the 3 rd respondent, namely that the changes were effected on 13 May 2026 by a Gazette Notice. Such notice has not been challenged. On this basis, the sole reason for challenging the suspension is that the petitioners' salaries and allowances have been stopped and should be reinstated. At the end of the hearing of the petition, the reasons therefor must be interrogated first. The objections to the 3 rd respondent and the responses thereof must be gone into. To allow the application at this stage would deny the court crucial details at a preliminary stage. That would not foster justice. Before conclusion, the 1st and 2nd respondents submitted that there is Nairobi ELRC Petition E147 of 2026. Whereas this matter is already addressed as outlined above as being pending on a different issue separate from herein, there were no details with regard to Nyeri ELRC Petition E009 of 2026. It will assist in addressing these matters and provide the records to the court to avoid duplication and different orders from the same cause of action, if at all. To secure the dignity of the court and integrity of the findings herein, where Nyeri Petition E009 of 2026 is similar to herein, the respondents have a duty to act on such matter immediately and bring this to the attention of the attending Judge at Nyeri. Accordingly, the application dated 27 May 2026 is without merit and is hereby dismissed. Costs shall be subject to the outcome of the petition. ELRC NAIROBI RULING PETITION NO. E174 OF 2026 6

page 6 of 7

Delivered in open court this 16th day of July 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi ……………………………………………… and ………………………………….. ……… ELRC NAIROBI RULING PETITION NO. E174 OF 2026 7

page 7 of 7