Chacha v Etyang & 3 others

contending that it was fundamentally awed and failed to meet the standards of a free, fair and veriable election. She therefore seeks the following reliefs: 1. A declaration that the elections of the Kenya National Union of Teachers Kuria West branch held on 7th February, 2026 for the position of branch chairperson were not free and fair hence invalid; 2. A declaration that the 3rd respondent was not duly elected as the electoral exercise was not free and fair; 3. An order barring the interested party from registering the 3rd Respondent as the chairman of Kenya National Union of Teachers Kuria West branch; 4. An order directing the 2nd Respondent to organize fresh elections for the post of chairperson, Kuria West branch; and 5. Costs of the Petition 2. The Petitioner contends that she is a teacher in Kuria West Sub-County and a registered member of the 2nd Respondent Union and contested for the Kuria West Branch Chair’s position. The Petitioner states that the third Respondent’s candidature was illegally allowed during the nomination exercise held on 6th February 2026, despite the fact that she was not a member the 2nd Respondent. She avers that despite her objections to the 3rd Respondent's candidature the objection was not determined despite the 1st Respondent undertaking to consult the 2nd Respondent before the commencement of voting. The Petitioner further avers that during the polling exercise, the 1st Respondent permitted non-members and other ineligible persons to vote without proper identication or verication despite repeated objections by her and her agents. She maintains that the Kuria West Branch had only 763 registered members, yet the declared results for the chairperson's election reected 820 votes cast, while the votes cast for other elective positions ranged between 808 and 829. According to the Petitioner, the turnout exceeding the number of registered members demonstrates that unregistered persons voted and raises the possibility of ballot stung, thereby rendering the election irregular and unveriable. The Petitioner also contends that after the declaration of the results, the 1st Respondent failed to furnish candidates or their agents with election documents or electoral materials despite her written request seeking access to the same. She therefore maintains that the election lacked transparency and veriability and was conducted with a predetermined outcome in favour of the 3rd Respondent, who, she asserts, was ineligible to contest. 3. The 1st Respondent opposes the Petition and maintains that the KNUT Kuria West Branch elections held on 7th February 2026 were conducted strictly in accordance with the KNUT Constitution, the applicable election guidelines and established procedures governing union elections. The 1st Respondent further states that during the nomination exercise, the successful candidate was duly nominated without any objection from the Petitioner or any other union member regarding her eligibility. She also denies the allegation that strangers or ineligible persons were allowed to vote, contending that the Petitioner has not produced any evidence to substantiate those claims. Finally, the 1st Respondent maintains that the voting exercise was conducted in an open, transparent and peaceful manner in the presence of the candidates, their agents and union members, and urges the Court to dismiss the petition. 4. The 2nd and 3rd Respondents oppose the Petition via a replying adavit sworn by Mr. Henry Oyuu the 2nd Respondent’s Secretary General. He deposes that the 3rd Respondent is a duly registered member of the 2nd Respondent's Kuria West Branch who is up to date in the payment of union dues, as evinced https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2162/eng@2026-07-27 2

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by the union membership register and her payslips. He therefore maintains that she was eligible to participate in and contest the branch elections. The deponent further denies the Petitioner's allegation that non-members participated in the elections, contending that no evidence has been produced to support that claim. Additionally, the 2nd and 3rd Respondents contend that the Petition does not comply with the applicable Procedure and Practice Rules governing trade union election disputes. They maintain that the elections were conducted in a free, fair and veriable manner and urge the Court to dismiss the petition as being devoid of merit. 5. By way of rejoinder the Petitioner led a further adavit sworn on 24th April 2026. She attached the voter’s register showing that the 2nd Respondent had a total membership of 763 against the 800 members who cast their vote. 6. The Petition was canvassed by way of written submissions. Petitioner’s Submissions 7. The Petitioner identies the following issues for determination: 1. Whether the number of votes cast exceeded the number of registered voters; and 2. Whether the 3rd Respondent was eligible to contest for election. 8. On the rst issue, the Petitioner submits that the number of votes cast exceeded the number of registered voters, thereby rendering the election neither free nor fair. The Petitioner asserts that being the outgoing Branch Chairperson, she had personal knowledge that the Kuria West Branch had 763 registered members, pointing to the register attached to the further adavit used during the election to support that assertion. She submits that although the declared results reected 820 votes cast for the position of Branch Chairperson, neither the 1st Respondent produced the electoral materials required under the Trade Unions (Election Petition) Rules, 2014 nor did the 2nd Respondent produce the complete membership register to rebut her evidence. She therefore maintains that, the disparity demonstrates that ineligible persons participated in the election, thereby compromising its integrity. To support that proposition, the Petitioner relies on Kakuta Maimai Hamisi v Peris Pesi Tobiko, Independent Electoral & Boundaries Commission & Returning Ocer Kajiado East Constituency [2013] KEHC 127 (KLR), where the Court held that votes exceeding the number of registered voters constitute a serious irregularity and that Regulation 83(1) of the Elections (General) Regulations, 2012 requires such results to be disregarded. 9. On the second issue, the Petitioner submits that the 3rd Respondent was ineligible to contest the election because she was not a bona de paid-up member of the union but merely remitted agency fees. She asserts that under the Labour Relations Act, the KNUT Constitution and the applicable election guidelines, only fully registered paid-up members are eligible to vote and contest union elections. Reliance is placed on Joshua Otieno Okinda & another v Kenya National Union of Teachers & 3 others, [2026] KEELRC 406 (KLR) , where this Court emphasised that trade unions must strictly comply with their constitutions and election guidelines and that persons paying only agency fees are not entitled to vote. The Petitioner further submits that the payslip produced by the 2nd Respondent does not establish the 3rd Respondent's membership status because it merely reects deductions described as union dues without distinguishing between membership subscriptions and agency fees. The Petitioner contends that her assertion that the 3rd Respondent was an agency fee contributor remained uncontroverted and that allowing her to contest the election contravened Article XX(B)(1) of the KNUT Constitution, which reserves elective oces for bona de paid-up members of the Union. The Petitioner therefore urges the Court to nd that the election was vitiated by the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2162/eng@2026-07-27 3

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participation of ineligible voters and the candidature of an ineligible contestant, declare the election invalid, and hold that the 3rd Respondent was not duly elected. 1st Respondent’s Submissions 10. The 1st Respondent identies the following issues for determination: 1. Whether the petition meets the threshold required in ling a petition; 2. Whether the Petitioner has proved that the election process was irregular, unlawful or aected the outcome; and 3. Whether the Petitioner is entitled to the orders sought. 11. On the rst issue, the 1st Respondent submits that the petition does not meet the threshold of a constitutional petition. She asserts that the Petitioner has failed to plead with precision the constitutional provisions allegedly violated, the manner of the alleged infringement, and the specic acts complained of, contrary to the principles in Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. It is further submitted that the dispute concerns the conduct of a trade union election and does not disclose any constitutional question or violation of the Petitioner's rights under Articles 47 or 50 of the Constitution. Reliance is placed on Chosen Children International v County Government of Trans-Nzoia & 2 others [2019] eKLR, where the Court held that constitutional petitions should not be used to pursue ordinary disputes that do not require constitutional interpretation. The 1st Respondent therefore urges the Court to nd that the petition is incompetent and an abuse of the court process. 12. On the second issue, the 1st Respondent submits that the impugned election was conducted strictly in accordance with the KNUT Constitution, the applicable election guidelines and established procedures. She contends as the Returning Ocer, she relied on the ocial membership register, supervised the nomination process, allowed only eligible members to vote, conducted voting in the presence of candidates and their agents, openly counted and declared the results, and thereafter forwarded the names of the successful candidates to the Registrar of Trade Unions. She maintains that the Court should not interfere with the internal democratic processes of a trade union in the absence of clear proof of illegality or breach of mandatory legal requirements. 13. The 1st Respondent further submits that the allegation that the 3rd Respondent was ineligible is unsupported, as the evidence shows that union dues were deducted through the check-o system, she appeared in the ocial election register and was duly nominated without objection. She emphasizes that the burden of proving otherwise rested on the Petitioner under sections 107, 108 and 109 of the Evidence Act, but that burden was not discharged. Similarly, she asserts that the allegation that strangers voted was unsubstantiated, as the Petitioner neither identied the alleged ineligible voters nor produced evidence that non-members participated in the election. 14. On the nal issue, the 1st Respondent submits that the Petitioner has failed to establish any illegality or procedural impropriety warranting the nullication of the election. She argues that granting the reliefs sought would unjustiably overturn the democratic choice of KNUT members and undermine their rights under Article 41 of the Constitution. The Court is therefore urged to nd that the Petition lacks merit and to dismiss it with costs. 3rd Respondent’s Submissions 15. On her part the 3rd Respondent reiterates that she is a duly registered member of the 2nd Respondent, asserting that no evidence has been adduced to disprove this fact. She submits that the Petition is a https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2162/eng@2026-07-27 4

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non-starter and should be dismissed because: the necessary parties being the Returning Ocer, the 2nd Respondent’s Secretary General have not been enjoined and the election venue and date of declaration of results have not been indicated. Consequently, she urges the court to dismiss the Petition with costs. Disposition 16. The Petition is strictu sensu not a constitutional petition. A reading of it indicates it does not meet the threshold in the Anarita Karimi Njeru v Republic [1979] eKLR case. It does not rise to a constitutional petition see Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. What it is, is a challenge to the election of the 3rd Respondent. That is what is the import of the Petition before the Court. 17. The Petitioner asserts the election conducted for the Kenya National Union of Teachers (KNUT) Kuria West Branch Chairperson was fundamentally awed and failed to meet the standards of a free, fair and veriable election. It is common ground the elections were conducted on 7th February 2026 as asserted by the parties. The Petitioner however did not join the Returning Ocer being the Labour Ocer appointed by the Registrar to oversee the elections. 18. Under the Trade Unions (Election Petition) Rules, 2014 and the Employment and Labour Relations Court (Trade Union Election) Practice Directions, the challenge to the outcome of elections must be in compliance with the law. 19. The Petition herein contravenes Rule 51(b) and Directions 2 and 6 of the Employment and Labour Relations Court (Trade Unions Election Disputes) Procedure and Practice Directions, 2025, for failure to disclose the venue of the election and the date of declaration of results. Consequently, the Petition does not constitute a proper trade union election petition as contemplated under the Employment and Labour Relations Court (Trade Unions Election Disputes) Procedure and Practice Directions, 2025. The failure was manifest in the results being challenged in the absence of the returning ocer. If perchance the Petitioners were successful, who would conduct the elections to be called thereafter? 20. A trade union election petition is supposed to take the format prescribed in law. In the case of Sakwa v Kenya National Private Security Workers Union & 3 others (Petition E010 of 2026) [2026] KEELRC 632 (KLR) (3 March 2026) (Ruling), the Court held as follows: …. The Court returns that the question that falls for determination is not whether the Petitioner met the threshold for ling a petition but rather, whether the Petition led complies with the law in ling a petition to challenge a trade union election which this Court holds is sui generis. The decision cited by the Petitioners is therefore distinguishable as it does not t the prism of the dicta in the case cited on all fours. 13. The Court nds that where Parliament has enacted a specic statutory mechanism for resolving a category of disputes, and the Chief Justice has promulgated rules of procedure is to be followed in articulating a dispute under the law in question, that mechanism is mandatory and exclusive. It must be followed by any party wishing to challenge the results of a trade union election and not the mere challenge of process that impugns the illegality or otherwise of a trade union election. The bifurcation is necessary as one challenges the result akin to an election petition whereas the other petition contemplated is where there is no election envisaged due to either lack of union representation in the sector or the like. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2162/eng@2026-07-27 5

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14. This Court is of the rm view that constitutional provisions cannot be called to aid in the circumvention of statutory timelines as was attempted here. There has to be structured pleadings in terms of the law which is comprised in the guidelines issued by the Chief Justice. The Court is minded that there is the requirement for security for costs under section 34(4) of the Labour Relations Act which fact is reiterated in paragraph 5 of the Practice Direction which mandates that an election petition should expressly state that it is brought under section 34(4) of the Labour Relations Act. The Petition should be entitled “Election Petition No.... of a given year.” Noting that the Petition herein has not been framed as an election petition and did not include clear pleading of the date of declaration of results, the specic results declared, the structured statutory grounds of challenge and the structured framework for relief sought, the nding of the Court is that this Petition is incompetent, misplaced and incapable of achieving the revocation of the election results. [Emphasis mine] 21. The Court reiterates that trade union election disputes are in a class of their own. Being sui generis in nature, the Petition to challenge the outcome of the trade union election must be in accord with the law. In my considered view by failing to move the Court under the proper law, there is no petition challenging the election results subject of the Petitioner’s grouse with the 2nd Respondent. Whereas there seems to be a genuine apprehension that the election carried out did not comply with the Union constitution, there was fatal missteps which failure can only result in the dismissal of the Petition led before the Court. There however will be no order as to costs. It is so ordered. DATED AND DELIVERED AT KISII THIS 27TH DAY OF JULY 2026 NZIOKI wa MAKAU, MCIArb. JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2162/eng@2026-07-27 6

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