Wekesa Cleophas & 5 others v Kenya National Private Security Workers Union & 2 others; Registrar of Trade Unions & another (Interested Parties)

PRIVATE SECURITY RESPONDENT WORKERS UNION.........……..2ND ELIJAH OGOTI MANANI, LEONIDA KERUBO, BENEDICT IKOHA, ISAAC G.M ANDABWA, WALTERSON TORO, DELVIN MAKANI, LINCOLN YONGO, MARTIN KIPTOO, JOSEPH ADHIAMBO AJODE, ADEN OLOO KASSIM, ESTHER CHACHA, JOSPHAT OMBILO, GEORGE KUNGU, ISAAC MWANZA, JOASH SOITA, HELLEN MWIKALI, SAMSON OMOSO, GLADYS OGOLA, MERCY CHEPKIRUI, BENJAMIN OSILWA, ALEX KISAU MUUSYA, GEOFFREY NYAMWEYA, MILDRED OMWENO OCHANDO, EMMAH CHEPKORIR NDIWA, EUNICE BUKHALA, JONATHAN MWANJA (Sued as the new elected officials of Kenya National Private Security Workers Union...................................................3RD RESPONDENT AND THE REGISTRAR OF TRADE UNIONS............1ST INTERESTED PARTY NATIONAL LABOUR OFFICER.......................2ND INTERESTED PARTY RULING 1. By a Preliminary Objection dated 9th June 2026, the Respondents seek to have the Petition struck out on the following grounds: Page 2 of 18

page 2 of 18

(I) THAT the Petition is res judicata contrary to section 7 of the Civil Procedure Act, Cap 21 Laws of Kenya, the issues raised herein having been directly and substantially in issue in Kisumu ELRC Petition No. E010 of 2026, Patrick Sakwa Kadukha v Kenya National Private Security Workers Union & others, wherein this Honourable Court conclusively determined the legality of the same election process and pronounced itself on the exclusive procedure applicable to trade union election disputes. (II) THAT the 6th Petitioner herein, Patrick Sakwa Kadukha, was the Petitioner in ELRC Petition No. E010 of 2026 and is therefore estopped from re-litigating the same dispute through a fresh Petition disguised under additional parties. (III) THAT the Petition is sub judice and offends section 6 of the Civil Procedure Act by reason of the pendency of ELDORET ELRC Cause No. E004 of 2026, Peter Oduor Odima v Kenya National Private Security Workers Union, involving the 4th Petitioner herein and Page 3 of 18

page 3 of 18

concerning the same elections, same subject matter, same parties and substantially similar reliefs. (IV) THAT this Honourable Court's jurisdiction has not been properly invoked as the dispute herein is a Trade Union Election Dispute falling exclusively within section 34(4) of the Labour Relations Act and the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025. (V) THAT the Petition is incurably defective and incompetent for failure to comply with Paragraph 5(1) of the Employment and Labour Relations Court (Trade Union Election Directions, 2025 Disputes) which Procedure mandatorily and Practice requires every Election Petition to expressly state that it is brought pursuant to section 34(4) of the Labour Relations Act. (VI) THAT the Petition fatally violates Paragraph 5(2) of the said Practice Directions in that it has not been instituted, framed or titled as an "ELECTION PETITION" but has instead been improperly Constitutional Petition. Page 4 of 18 disguised as a

page 4 of 18

(VII) the THAT the Petition fatally violates Paragraph 5(3)(a) of Practice Directions by failing to demonstrate compliance with the mandatory timelines governing the filing of Trade Union Election Petitions. (VIII) THAT the Petition violates Paragraph 6(1)(c) of the Practice Directions by failing to properly plead the election results complained of. (IX) THAT the Petition violates Paragraph 6(1)(d) of the Practice Directions by failing to plead the date of declaration of election results, a mandatory jurisdictional requirement in Election Petitions. (X) THAT the Petition violates Paragraph 6(1)(e) of the Practice Directions by failing to set out structured statutory grounds upon which the election is challenged as required under the special election dispute regime. (XI) THAT the Petition violates Paragraph 8 of the Practice Directions by failing to comply with the mandatory provisions relating to security for costs in election disputes. (XII) THAT the Petitioners have deliberately invoked Articles 22, 23, 41, 47, 258 and 259 of the Constitution Page 5 of 18

page 5 of 18

to circumvent a specific statutory mechanism established by Parliament and the Honourable Chief Justice for the resolution of Trade Union Election Disputes. (XIII) THAT notwithstanding the constitutional language employed by the Petitioners, the Court is enjoined to look beyond the form of the pleadings and ascertain the true nature of the dispute. The Petition seeks the nullification of elections already conducted, cancellation of election results, removal of elected officials and an order for fresh elections. These are purely election grievances and election remedies which can only be pursued through a Trade Union Election Petition brought pursuant to section 34(4) of the Labour Relations Act and Gazette Notice No. 18142 of 2025. The Petitioners cannot, through constitutional drafting ingenuity, circumvent a mandatory statutory regime specifically enacted for the adjudication of trade union election disputes. (XIV) THAT the Petitioners filed a Notice of Withdrawal on 11th February 2026 acknowledging that the Application Page 6 of 18

page 6 of 18

dated 3rd February 2026 had been overtaken by events and thereby abandoned the substratum of the proceedings. Further, under Paragraph 16(3) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025, an Election Petition cannot be withdrawn without leave of the Court. The Petitioners neither sought nor obtained such leave and are consequently precluded from maintaining inconsistent positions by purporting to withdraw proceedings while simultaneously seeking to prosecute the same dispute. The conduct is vexatious, oppressive and a gross abuse of the process of the Court. (XV) THAT the present proceedings constitute forum shopping, multiplicity of suits, abuse of Court process and a deliberate attempt to circumvent: a) the ruling and findings in ELRC Petition No. E010 of 2026; dated 3rd March 2026. b) the pending proceedings in ELRC Cause No. E004 of 2026; and Page 7 of 18

page 7 of 18

c) the mandatory provisions of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025. (XVI) THAT the Petition is incompetent, misconceived, frivolous, vexatious, scandalous and a gross abuse of the due process of this Honourable Court and is liable to be struck out in limine with costs. 2. The Preliminary Objection was canvassed by way of written submissions. Respondents’ Submissions 3. At the outset, the Respondents submit that the Preliminary Objection raises pure points of law capable of disposing of the Petition without the need for evidence and therefore meets the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. They contend that, notwithstanding its presentation as a Constitutional Petition, the dispute is, in substance, a challenge to the National Elections of the Kenya Page 8 of 18

page 8 of 18

National Private Security Workers Union conducted on 7th February 2026. They maintain that the remedies sought, namely, nullification of the elections, invalidation of elected officials, cancellation of the results and an order for fresh elections, are election remedies governed exclusively by Section 34(4) of the Labour Relations Act and the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025. 4. On res judicata, the Respondents submit that the same elections had previously been challenged by the 6th Petitioner in Kisumu ELRC Petition No. E010 of 2026, which impugned the legality, validity and outcome of the elections and was subsequently struck out on 3rd March 2026. They rely on section 7 of the Civil Procedure Act and the decision in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), in which the Supreme Court reaffirmed that the doctrine of res judicata extends not only to matters actually determined, but also to matters which properly belonged to the subject of litigation and which the Page 9 of 18

page 9 of 18

parties, exercising reasonable diligence, ought to have brought before the Court. The Respondents consequently contend that the present Petition is unsustainable as it amounts to a collateral attack on the proceedings and determination in Petition No. E010 of 2026. 5. On the issue of sub judice, the Respondents submit that the 4th Petitioner has instituted Eldoret ELRC Cause No. E004 of 2026, which is pending judgment, arising from the same elections, involving substantially similar issues and seeking similar reliefs. Relying on Kenya National Commission on Human Rights Electoral & v Attorney Boundaries General; Commission Independent & 16 others (Interested Parties) [2020] eKLR, they submit that the sub judice rule is intended to prevent parallel proceedings concerning the same subject matter, avoid conflicting decisions and preserve the integrity of the judicial process. 6. As to whether the Court’s jurisdiction has been properly invoked, the Respondents submit that the Petition is premature for want of compliance with the doctrine of exhaustion. They contend that the Petitioners ought first to have exhausted the statutory mechanism provided under Page 10 of 18

page 10 of 18

section 34(4) of the Labour Relations Act, as operationalised by Gazette Notice No. 18142 of 2025, before approaching the Court. Relying on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, they emphasise that jurisdiction is foundational and that, without it, the Court cannot take any further step in the matter. The Respondents further submit that the Petitioners have failed to comply with the 2025 Practice Directions, which are not mere procedural technicalities but provisions going to the competence and jurisdiction of the proceedings. In particular, they point to Paragraphs 5(1) and 5(2), requiring the dispute to be commenced and titled as an Election Petition pursuant to section 34(4) of the Labour Relations Act; Paragraph 5(3) (a), concerning compliance with the prescribed timelines; Paragraph 6(1)(c), requiring pleading of the specific election results challenged; Paragraph 6(1)(d), requiring pleading of the date of declaration of the results; Paragraph 6(1)(e), requiring pleading of the specific statutory grounds upon which the election is challenged; concerning security for costs. Page 11 of 18 and Paragraph 8,

page 11 of 18

7. The Respondents accordingly urge the Court to uphold the Preliminary Objection and strike out the Petition with costs. Petitioners’ Submissions 8. At the outset the Petitioners submit that the Preliminary Objection is incompetent as the issues raised require the Court to ascertain and interrogate disputed facts. They maintain that the Petition was initially filed on 3rd February 2026, before the elections had been conducted, and principally sought to stop the scheduled elections. The elections proceeded on 7th February 2026 after no injunctive orders were issued. Consequently, the application was withdrawn as having been overtaken by events, and the Petitioners subsequently obtained leave to amend the Petition to address the changed circumstances and challenge the elections and their results. They submit that the amended Petition now complies with the applicable election dispute requirements, including pleading the basis under section 34(4) of the Labour Relations Act, the date and place of the elections and the results. 9. On res judicata, the Petitioners submit that Kisumu ELRC Petition No. E010 of 2026, Patrick Sakwa Kadukha v Page 12 of 18

page 12 of 18

Kenya National Private Security Workers Union & others, was struck out following a Preliminary Objection and was therefore not determined on its merits. They further contend that the earlier Petition concerned branch elections, whereas the present Petition concerns national elections. They also argue that the Respondents did not annex the pleadings in the former proceedings to demonstrate that the issues were identical. In support of their position, they rely on Joseph Kaguthi & 11 others v Permanent Secretary, Ministry of Interior & Coordination of Government & another [2021], where, citing Uhuru Highway Development Ltd v Central Bank of Kenya [1999] eKLR, the Court held that res judicata requires, inter alia, a final judgment on the merits, jurisdiction of the former Court, and identity of parties, subject matter and cause of action. They further rely on George W M Omondi & another v National Bank of Kenya Ltd & 2 others [2001] eKLR and Kundan Singh Construction Limited & another v Tanzania National Roads Agency [2019] eKLR for the proposition that proceedings which have not been heard and finally determined on their merits cannot found a plea of res Page 13 of 18

page 13 of 18

judicata. They also cite Ouma v Migori County Service Board & another (Cause E016 of 2025) [2026] KEELRC 1100 (KLR), where the Court held that prior determinations which did not finally adjudicate the issues on their merits did not satisfy the requirements of res judicata. 10. On sub judice, the Petitioners submit that the objection is misplaced because determining whether the present Petition is sub judice requires interrogation of the facts and pleadings in Eldoret ELRC Cause No. E004 of 2026, Peter Oduor Odima v Kenya National Private Security Workers Union. They therefore contend that the issue falls outside the proper scope of a Preliminary Objection. They rely on Ochola v Siaya County Public Service Board (Petition E014 of 2024) [2024] KEELRC 13428 (KLR), where the Court held that determining whether matters are sub judice may require ascertainment of facts and examination of the issues and prayers in the respective proceedings, and that a Preliminary Objection cannot be founded on disputed facts. 11. On the alleged non-compliance with the Employment and Labour Relations Court (Trade Union Election Disputes) Page 14 of 18

page 14 of 18

Procedure and Practice Directions, 2025, the Petitioners reiterate that the original Petition was filed before the elections were held. They therefore contend that the provisions governing petitions filed after the declaration of election results were not applicable at that stage. They maintain that the constitutional issues raised in the original Petition concerned the legality of the electoral process before the elections were conducted. They contend that following the elections, they rightfully obtained leave to amend and aligned the petition to the practice directions. They consequently urge the Court to dismiss the Preliminary Objection with costs. Disposition 12. The preliminary objection taken is that the Petitioners have not properly invoked the jurisdiction of this Court as the dispute before the Court is a trade union election dispute governed by the provisions of section 34(4) of the Labour Relations Act as well as Paragraphs 5(1), (2), (3)(a), 6(1)(c), (d), (e) and 8 of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Page 15 of 18

page 15 of 18

Directions, 2025. There is also an assertion the matter is sub judice. The Court therefore discerns the issues for determination to be the following: a. Whether the Petition before the Court is properly before it; b. If the answer to the foregoing is affirmative, whether the matter is sub judice; c. What orders can lie; and d. Who is to meet the costs. 13. In the case of Sakwa v Kenya National Private Security Workers Union E010 of 2026) (3 March 2026) & 3 others (Petition [2026] KEELRC 632 (KLR) (Ruling) incorrectly cited by the Respondents, the Court dealt with a Petition by the 6 th Petitioner in this present suit seeking to bar the assumption of office of the officials of the Kenya National Private Security Workers Union listed as the 3rd Respondent. 14. There is no dispute that the elections of the Kenya National Private Security Workers Union took place in January Page 16 of 18

page 16 of 18

2026 countrywide. The outcome is the list of officials named as the 3rd Respondent herein. The Petition herein seeks to challenge the said election. It was filed as an ordinary petition and therefore did not comply with section 34(4) of the Labour Relations Act as well as Paragraphs 5(1), (2), (3) (a), 6(1)(c), (d), (e) and 8 of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025. The Petition before this Court is therefore not one that is capable of properly invoking the jurisdiction of this Court in as far as the challenge to the electoral outcome of the Trade Union Elections carried out by the Kenya National Private Security Workers Union countrywide. 15. As to whether the matter is sub judice, there was suggestion that there was a case pending in another Court. Having found the jurisdiction of the Court was not properly invoked, it would be an academic exercise in futility to attempt to ascertain whether this incompetent Petition is sub judice. The Court returns that the Preliminary objection by the Respondents is merited and the Petition herein is struck out with costs against the 6 Petitioners. Page 17 of 18

page 17 of 18

It is so ordered. Dated and delivered at Kisumu this 23rd day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 18 of 18

page 18 of 18