Wilson Sossion & Martha A. Omollo v Kenya National Union of Teachers (KNUT) & 3 others

Secretary, Bomet Branch KNUT in June 2001, he was elected the Secretary General and re-elected on 4th March 2016. That he resigned on 25th June 2021. That following the 1 st Petitioner’s nomination as member of parliament in 2017, his employment with TSC was terminated and deregistered from the Register of Teachers vide Gazette Notice No. 10382 of 29th October 2019. 2. That in Patrick Njuguna & 7 others v Wilson Sossion & 3 others 2019 KEELRC 727 (KLR) the court held that it was lawful for the 1st Petitioner to hold both the parliamentary seat and that of Secretary general of the union. That the Court dismissed the 1st Petitioner’s challenge against the deregistration, but the Court of Appeal in its judgement of 27 th February 2026 held that the procedural infractions with respect to Regulations 144 and 156 of the Code of Regulation for teachers, rendered the termination unfair. Nonetheless, the efforts to reinstate his name into the register have been in vain. 3. It was averred that by dint of Section 31(4) of the Labour Relations Act, the 1st Petitioner was eligible to vie for the position in the elections of 3rd April 2026. That pursuant to the judgement delivered on 27th February 2026, the 1st Petitioner never ceased being a member of KNUT and is fully paid up until June 2026, therefore eligible. That on 7th November 2025 he transferred Kshs. 72,000/=, being his membership dues from 1 st July 2022 to 1st June 2026, to the 1 st Respondent's KCB bank account. That the amount was returned to him on 31st December 2025, without any explanation. That he once again made the payment on 27 th February 2026 and forwarded the deposit slip to the 2 nd ELRC NAIROBI – PET E099 OF 2026 2

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Respondent. That he is therefore compliant with section 33 of the Labour Relations Act. 4. That the letters from the 1st and 2nd Respondents’ advocates insinuate that the 1st Petitioner is not eligible to vie for the position on account of his deregistration. That the letter also indicates that the funds remitted were been held in suspense account until the 1st Respondent determines that he is eligible to pay. That following the 3rd Respondent’s Circular of 25th September 2026, the 2nd Respondent vide his letter dated 13th March 2026 notified its members, through the branch executive secretaries, that the Special Delegates Conference for purposes of national elections would be held on 3 rd April 2026, at Tom Mboya Labour College, Kisumu. that the letter further indicated that the nominations would be held on 2 nd April 2026 at the same venue. That the slating of the election during he Easter would deny Christian delegates a chance to exercise their labour rights. 5. That the 2nd Respondent through the Standard media at page 10 on 23rd March 2026, declared his candidature and threatened the 1st Petitioner. That Article III of the KNUT Constitution revised in February 2022, provides that only paid members are eligible to contest in the national elections. It was averred that it is practice that the National elections are held after all the 110 branches; 47 County Councils and 8 regional councils have elected their officials and are fully constituted. That the elections for Turkana and Rarieda branches which were suspended through court orders, were yet to elect their officials. That the Petitioners were apprehensive that the Respondents would communicate that ELRC NAIROBI – PET E099 OF 2026 3

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they were ineligible to vie in the event of the nominations therefore defeating their candidature. That the same threatens their labour rights. 6. That the elections were known to be held in Nairobi due to its centrality and neutrality, and Kisumu was known for its violence and organized goons. That due to the high tension surrounding the election, the election be relocated to Nairobi with adequate security to avoid unnecessary interruptions. That the 1 st petitioner is eligible for election by dint of Section 31(4) of the Act and the fact that he has been a teacher for many years. 7. The 1st and 2nd Respondents responded to the Petition vide their Replying Affidavit sworn by Collins Henry Oyuu, the1st Respondent’s Secretary General. He confirmed that he received a letter dated 18th February 2026, expressing interest to vie for the position of Secretary General of the 1 st Respondent Trade Union. He deponed that the intention was misplaced as the procedure for expressing interest in any elective position in Union was spelt out in KNUT’s Constitution, revised in 2022. He stated that there was no provision or requirement for any candidate seeking election for any office in the 1st Respondent’s to write to the Secretary General instead of filling nomination forms as prescribed. 8. He stated that the Union has a prescribed template for elections accessible at all Branches of the Union before the nomination exercise commences. He stated that a candidate was expected to forward the duly filled form and accompanying documents to the ELRC NAIROBI – PET E099 OF 2026 4

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Union for purposes of verification on eligibility before the nomination day. He added that the 1 st Respondent’s constitution provides that nominations be carried out one (1) day to the election’s day at the election venue and all candidates must be accompanied by a proposer and a seconder who shall be a paidup members of the union. 9. He deposed that the 2nd Petitioner, having gone through the same process, lost the contest for the position of Executive Secretary KNUT Nairobi Branch inelections held on 17 th March 2026. He added that he received an identical letter from the 1 st Petitioner dated 2nd March, 2026 expressing his interest in vying for the position of Secretary General in the elections 2026 citing publication over the same by the registrar of Trade Unions; which he responded to through his advocates M/S Nyamu & Nyamu Co. Advocates. He stated that the letters were meant to bypass procedure laid down under the constitution and the circular dated 25th September 2025 on elections as issued by the Registrar of Trade Unions. 10. He stated that he received a letter dated 22 nd February, 2026, from the firm of J.A Guserwa & Co. Advocates, forwarding a copy of deposit slip for Kshs. 72,000/- deposited into the 1 st Respondent’s account with a description that the same was union dues in preparation of the forthcoming union elections. He stated that his belief was that the purpose of the deposited funds above was to render the 1st Petitioner qualified and eligible to participate in the forthcoming election as a candidate. He added that such payment was not provided for in the Union Constitution. ELRC NAIROBI – PET E099 OF 2026 5

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He deposed that nonmember were ineligible as membership was only payable by registered teachers, who are the 1 st Respondent’s members, through a check-off system entailing deductions from their salaries. 11. The affiant termed the deposit as being contrary to Article V (4) as the same was done after 5 years and the Petitioner had not been in continuous service as a teacher and member of the Union for 8 years. He stated that Article III (7) of the Constitution barred teachers not registered with the Teachers Service Commission (TSC) from eligibility from union membership. He added that he was aware that the 1st Petitioner was deregistered as a teacher by the Teachers Service Commission (TSC), which removal he vehemently challenged. He stated that the Petition challenging the deregistration was found to lack merit and dismissed, and an appeal has been proffered to the Court of Appeal vide Civil Appeal (Nairobi) no 476 of 2019. That consequently, the 1 st Petitioner ceased to be a member of the 1 st Respondent and lost eligibility the moment he was removed from the Register of Teachers by the Teachers Service Commission. 12. The affiant denied the allegation that the communication to the Petitioners on the issue of their nominations a day before the elections was unfair labour practice. He added that labour officers from the 3rd Respondent handle the nomination and the election process to ensured fairness and compliance with requirements for all candidates in accordance with the union constitution. He deposed that Article 41 (4) (a) of the Constitution ELRC NAIROBI – PET E099 OF 2026 6

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of Kenya 2010 guaranteed every trade union the right to determine its own administration, programmes and activities. 13. He further deponed that eligibility for election including the office of the Secretary General was outlined under Article V of the 1 st Respondent’s Constitution and added that Section 34 (1) of the Labour Relations Act was not voluntary or optional as the 1 st Petitioner suggested. He stated that the funds deposited by the 1st Petitioner were held in a suspense account awaiting interpretation of the order of the Court of Appeal. He deposed that the National Delegates Conference scheduled for 3 rd April, 2026 was convened based on the Circular by the Registrar of Trade Unions, Section 34 of the Labour Relations Act and the 1 st Respondent’s Constitution. He added that the essence of holding the election on the stated date, being Easter, was not peculiar as during the 1st Petitioners tenure as the Secretary General, elections were held on Saturdays and Public Holidays. He deponed that it was intended to ensure that the teachers were free from work. 14. On the delay in branch elections in Turkana and Rarieda, the affiant stated that the same was without a basis as such situations are anticipated in Article XI (1) of the Unions Constitution, which provided for quorum for the delegates conference as one third (1/3) of members entitled to attend and vote. He denied the allegation that the 1st Respondent’s national elections had always been held in Nairobi. He deposed that the Petitioners have neither made a prima facie case with any possibility of success, nor shown that they would suffer damage ELRC NAIROBI – PET E099 OF 2026 7

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incapable of being redeemed by way of damages. He added that that the Petitioners had not met the threshold for the grant of conservatory order and were thus not entitled to the same. 15. In his Supplementary Affidavit the response, the 1st Petitioner stated that by dint of Sections 31of the Act, one need not be a registered member of a union nor a registered teacher. He stated that despite his deregistration, he remained a member of the union and the Secretary General until his resignation and since had paid up and cleared all his arrears. He stated that as per the 1st Respondent’s Constitution, a candidate does not necessarily need to be a delegate to vie for a national position. He stated that only voting was restricted to delegates. He therefore urged the Court to allow the Petition and application. 16. In a rejoinder, the 2nd Respondent in as Further Affidavit deponed that Section 31(1) of the Act was not couched mandatory terms. He stated that the Petitioners are aware that despite the provision, none of the secretaries, including branch secretaries had been nonmembers. That whenever a member was elected secretary, they took leave of absence from class to serve the union for the 5-year term. He stated that Article III(7) of the Constitution prescribed a monthly membership subscription and therefore the lumpsum paid by the 1 st Petitioner was unrecognized. He added that Section 33(c) provided that no person shall be a voting member of a union if the person is in arrears for more than 13 months. He stated that deposit of money into an account does not make a person an eligible member. ELRC NAIROBI – PET E099 OF 2026 8

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17. He deponed that the Petitioner should not be allowed to benefit from his action as it would set bad precedent. He deponed that the Petitioner indicated his awareness of the Delegates Conference of 13th March 2026 and yet nothing stopped him from moving this Court immediately. He termed the 13-day delay as inexcusable and the Petition was thus barred by the doctrine of laches. He stated that the Petitioners failed to challenges the review of the Constitution when it was effected back in 2022. He stated that what mattered in an election was the quorum of 1/3 of the members entitled to vote, as envisaged under Article XIX(4). He further stated that despite the elections in Turkana having not been held, its delegates had already confirmed attendance. He stated that public interest would only be accomplished if this Court allowed the union to exercise its right to conduct its activities as per Article 41(4) of the Constitution. He added that after the nomination and election, if any of the Petitioners feels dissatisfied, they have the right to challenge the process by way of election petition in accordance with the Employment and Labour Relations Court (Trade Union Elections Disputes) Procedure & Practice Rules. 18. The 3rd and 4th Respondents challenged the Petition by raising the following Grounds of Opposition that: the Petition is fatally defective for failure to comply with the Constitutional Petition Rules and for want of specificity principle, as pronounced in Anarita Karimi Njeru –versus- the Republic (1976-1980) KLR 1272, reinforced in the case of Mumo Matemu –versusTrusted Society of Human Rights Alliance & 5 Others ELRC NAIROBI – PET E099 OF 2026 9

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(2013) (eKLR); the Petition does not disclose any reasonable cause of action against the 3 rd and 4th Respondents; the 3rd and 4th Respondents have been improperly enjoined in these proceedings as no specific acts or omissions attributable to them have been pleaded and/or demonstrated; the Petitioners have failed to establish any violation, infringement or threatened infringement of constitutional rights by the 3rd and 4th Respondents; the dispute herein primarily concerns the internal management and electoral processes of the 1 st Respondent, matters governed by the Union’s Constitution and internal dispute resolution mechanisms; the Petitioners have not exhausted the available statutory and internal dispute resolution mechanisms before invoking the jurisdiction of this Honourable Court; the 3rd and 4th Respondents acted within their statutory mandate under the Labour Relations Act and all other enabling provisions of the law; the orders sought against the 3 rd and 4th Respondents are untenable in law and incapable of enforcement against the Respondents; the Petition has been overtaken by events, the impugned KNUT elections having already been conducted; the Petitioners have not demonstrated any prejudice occasioned by the actions of the 3rd and 4th Respondents warranting the intervention of this Honourable Court; granting the orders sought would occasion administrative uncertainty and interfere with statutory functions lawfully vested in the 3 rd and 4th Respondents; the Petition and Application are otherwise incompetent, misconceived, misplaced and is an abuse of the process of this Court and the same ought to be dismissed with costs ELRC NAIROBI – PET E099 OF 2026 10

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19. The 3rd and 4th Respondents further responded to the Petition vide the Replying Affidavit sworn by Ann Kanake, the Acting Registrar of Trade Unions. She outlined her mandate to be the registration and regulation of trade unions, employers' organizations and federations. She stated that KNUT, hadalready held its elections on 3rd April 2026. That this matter having not been certified urgent and without any interim orders, the union was cleared to proceed with the elections as scheduled. She added that the petition and the consequent applications had been rendered nugatory and overtaken by events. Petitioners Submissions 20. The Petitioners submitted on: (i) whether the Petition is moot; (ii) whether they exhausted internal dispute resolution mechanisms; (iii) whether the 1st Petitioner is eligible to contest for office of Secretary General by dint of Section 31(4a) of the Act. 21. On the first issue, reliance was placed on Kaminja & 3 others (suing as Westland Environmental Caretaker Group) & 3 others v County Government of Nairobi [2019] KEHC 2059 (KLR) to submit that the Petition had a live question for Court’s determination on the 1st Petitioner’s eligibility to vie when he was no longer engaged in the education sector. It was submitted that a court ought to decide a case despite any arguments of mootness if so doing would be in public interest. Reliance was placed on Political Parties Forum Coalition & 3 others vs Registrar of Political Parties & 8 others [2016] eKLR. It was submitted that although the elections had already been conducted, it was still a ELRC NAIROBI – PET E099 OF 2026 11

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matter of public interest for this Court to interpret section 31(4) of the Act. 22. On the second issue, it was submitted that by dint of this Court’s Ruling of 1st April 2026, the 1st Petitioner not being a member of the union, he could not possibly make use of the internal dispute resolution mechanisms. It was added that it would have been impossible since the 1st and 2nd Respondents did not grant him a listening ear. 23. On the third issue, it was submitted that Section 31(4)(a) allowed trade unions to elect or appoint general secretary from individuals not employed in the specific Sector. It was submitted that the intent of the section was to protect union leadership from losing their employment and thus ensure effective representation of workers. Counsel added that any interpretation of the union constitution or decision aimed at disqualifying the 1 st Petitioner was is inconsistent and could not be sustained. Reliance was placed on Union of Kenya Civil Servants & 7 others v Ruth Barasa & 8 others; Registrar of Trade Unions (interested party) [2021] KEELRC 1053 (KLR). On submission that section 31(1) of the Act permitted persons who previously served in a sector to hold office in trade union, reliance was placed on Zachary Binyanya & 2 others v Union of Kenya Civil Servants & 2 others; Registrar of Trade Unions (Interested Party) [2019] KEELRC 429 (KLR). It was urged that the Petitioner was entitled to vie on account of Section 31(4a) of the Labour Relations Act. ELRC NAIROBI – PET E099 OF 2026 12

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24. In their submissions the 1st and 2nd Respondent raised the following as issues for determination: (i) whether the 1 st Petitioner/Applicant should be granted interim/conservatory orders; and (ii) whether this Court should usurp the role of the 1 st, 3rd and 4th Respondents in administering the 1 st Respondent elections. 25. On the first issue, reliance was placed on the Supreme Court decision in Gatirau Munya -vs- Dickson Mwenda Kithinji & 2 Others (2014) eKLR on conservatory orders. Reliance was made on the decision in Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 8 others (Interested Parties); Centre for Intellectual Property & Information Technology (Proposed Amicus Curiae) Petition Nos. 56, 58 & 59 of 2019 [2019] eKLR and Board of Management of Uhuru Secondary School -vs City County Director of Education and 2 Others (2015) eKLR to submit that the 1st Petitioner had not met the required threshold. It was submitted that the 1st Petitioner failed to meet the membership requirement in Article III (1) as he was currently deregistered as a teacher by the Teacher’s Service Commission. It was submitted that for this reason, 1 st Petitioner lacked an arguable prima facie case with likelihood of success and undeserving of the grant of conservatory orders. 26. It was submitted further that the possible damage or prejudice alleged by the 1st Petitioner was unfounded as he was deregistered as a teacher meaning he was not eligible for membership in the Union. Consequently, he could not attend the ELRC NAIROBI – PET E099 OF 2026 13

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Annual Delegates Conference as he was not a bona fide member of the union conforming to its constitution, as provided for under Article VII on National Delegates Conference. 27. On the second issue, it was submitted that the Court should not take up the role reserved for trade unions as per Article 41 (4) (a) of the Constitution of Kenya 2010. Reliance was placed on the Supreme Court decision Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Ltd & 2 Others, Application No. 2 of 2011 (2014) eKLR on court’s jurisdiction, to urge that the Court ought not to exercise its discretion to grant the Petitioners conservatory orders. on the eve of the union National elections. Reliance was placed on the doctrine of laches as enumerated in Benjoh Amalgated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR. 28. On the underpinnings of Section 31 (4) of the Labour Relations Act, relied on by the Petitioner, it was submitted that the proviso was couched in permissive terms, thus leaving room for the union to exercise its right and determine its own administration, programmes and activities according to Article 41 (4) (a) of the Constitution of Kenya. It was submitted that the 1 st Respondent had comprehensively provided for matters to do with the election of trade union officials, including secretaries. Counsel added that choosing an outsider would be contrary to the democratic wishes of teachers and other members of the union. Counsel urged the court not to grant conservatory orders to the Petitioners. ELRC NAIROBI – PET E099 OF 2026 14

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29. In their submissions, the 3rd and 4th Respondent raised the following issues for determination: (i) whether the Petition is fundamentally moot and has been rendered academic or infructuous, the impugned KNUT National Elections scheduled for 3rd April 2026 having already been fully conducted as scheduled; (ii) whether the Petitioners' suit is incompetent and barred by the Doctrine of exhaustion for their failure to invoke and exhaust the extensive internal dispute resolution organs and statutory mechanisms provided under Section 82 of the Labour Relations Act and Articles III, IV, VII, and XXI of the KNUT Constitution (revised February 2022); (iii) whether the Petition discloses any reasonable cause of action or alleges any specific constitutional infringements with the requisite specificity against the 3 rd and 4th Respondents; (iv) whether the 1st Petitioner is eligible to contest for the position of Secretary General or hold membership in the Union under Article III of the KNUT Constitution, in light of his resignation as Secretary General in June 2021, and his termination by the TSC as a registered teacher (as affirmed by the Court of Appeal in Civil Appeal No. 476 of 2019); and whether the 2nd Petitioner has legitimate standing to vie for national office under Article III and VII of the KNUT Constitution, having failed to demonstrate designated delegate status to the Annual Delegates Conference. 30. On the first issue, it was submitted that the Petition had been overtaken by events, and was entirely moot, as the Petitioners sought to halt, restrain, or otherwise interfere with the national elections of the Kenya National Union of Teachers, which were scheduled for the 3rd April 2026. It was added that the Acting ELRC NAIROBI – PET E099 OF 2026 15

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Registrar of Trade Unions, exhibited that the elections were successfully, fully, and democratically conducted on the scheduled date as no conservatory or stay orders were in force to restrain the process. Reliance was placed on the decision in Institute for Social Accountability & another v National Assembly & 5 others [2022] KESC 39 (KLR) and further reliance was placed on Attorney General & 3 others v David Ndii & 73 others: Prof Rosalind Dixon & 7 others (Amicus Curiae) (SC Petition 12, 11 & 13 of 2021 (Consolidated) [2022] KESCA 8 (KLR) (Constitutional and Human Rights) (31 March 2022) (Judgment) (with dissent) which quoted the South Africa case of Afriform NPC and others v Eskom Holdings SOC Limited and others 3 All SA 663 (GP). Counsel urged the court to decline the invitation to engage in a speculative and academic post-mortem of an election that had already been concluded in accordance with the law. 31. On the second issue, it was submitted that the Petition was fatally premature and procedurally incompetent due to the breach of the doctrine of exhaustion of alternative remedies. It was submitted that the Labour Relations Act, provided a clear statutory pathway for the reference of disputes concerning trade unions. Counsel added that Articles III, IV, VII, and XXI of the union Constitution providd comprehensive, specialized internal dispute resolution mechanisms including reference to the National Executive Council and the Special Delegates Conference for resolving disputes regarding nominations, eligibility of candidates, and conduct of elections. Reliance was placed on the decision Geoffrey Muthinja & another v Samuel Muguna ELRC NAIROBI – PET E099 OF 2026 16

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Henry & 1756 others [2015] eKLR. Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR). 32. On the third issue, it was submitted that the Petition failed to disclose any reasonable or actionable cause of action against then, respondents and was devoid of the specificity required of constitutional litigation. Counsel added that the Commissioner of Labour and the Registrar of Trade Unions acted strictly within their public administrative mandates to register, regulate, and facilitate trade union activities in good faith and in the public interest and not organize, run, or take sides in internal trade union elections, nor did they determine candidate nominations. It was that the Petitioners had failed to attribute any specific unlawful act, omission, or constitutional infraction to either the 3 rd or 4th Respondents. It was submitted that since the Petitioners have failed to show any specific violation committed by the 3 rd and 4th Respondents, the suit against these public officers is incompetent, vexatious. 33. On the fourth issue, it was submitted that the 1st Petitioner, wassubstantively and legally ineligible to contest for the position of Secretary General or to hold membership in the Kenya National Union of Teachers. It was submitted that Article III of the 1 st Respondent’s Constitution (revised February 2022), outlined that eligibility for membership and national union office was strictly restricted to individuals "who are or have been regularly and normally engaged as teachers." That following the judgment of the Court of Appeal in Civil Appeal No. 476 of 2019, of 27 th ELRC NAIROBI – PET E099 OF 2026 17

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February 2026, the 1st Petitioner remained a terminated teacher who was not on the Register of Teachers. It was urged that a party cannot unilaterally buy or deposit their way into trade union membership in direct violation of the substantive qualifications laid down in the union’s governing charter 34. On the fifth issue, it was submitted that the 2 nd Petitioner, lacked the requisite standing to vie for national office within the Kenya National Union of Teachers. It was argued that under the express terms of Articles III and VII of the KNUT Constitution, any candidate seeking to contest for a national official position, such as the position of Deputy Secretary General had be a registered and designated branch delegate in good standing at the Annual Delegates Conference. However, the 2 nd Petitioner failed to place any credible or verifiable evidence before this honorable Court to prove that she was duly elected, designated, or registered as a branch delegate. It was submitted that since the 2 nd Petitioner had failed to satisfy this basic threshold of proof as mandated under the law, her claim of a right to vie for national office was legally flawed and was for dismissal for want of standing. Counsel added that there being no clear violation of statutory law or a complete breakdown of internal processes, public law interventions ought not be used to micromanage the internal affairs or electoral calendars of trade unions. The Court was urged to dismiss the Petition in its entirety with costs to the 3 rd and 4th Respondents. The court has duly considered the pleadings evidence and submissions by the parties. ELRC NAIROBI – PET E099 OF 2026 18

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35. It is not in dispute that the Petitioners expressed their interests to vie for office of Secretary General and Deputy Secretary General office within the 1st Respondent. It is also now apparent that the election was held on the 3rd April 2026 and offices filled, which is not contested. All other issues having been overtaken by events, what is (i) left for the determination of this Court is the import of Sections 31 and 4 (a) of the Labour Relations Act. 36. Section 31(1) and (4) (a) of the Act provides that: (1) The officials of a trade union or employers’ organisation shall be persons who are, or have been, engaged or employed in the sector for which the trade union or employers’ organisation is registered. … (4) Notwithstanding the provisions of subsection (1)— (a) the general secretary of a trade union or the chief executive or association secretary of an employers’ organisation may be a person not engaged or employed in the sector concerned; 37. While the 1st Petitioner submitted that he was eligible to vie and hold the office of Secretary General, the 1 st and 2nd Respondents’ contention is that the Court should not interfere with its internal workings as the same would interfere with their rights under Article 41of the Constitution. 38. In order to understand the intention of the legislators, it is important to evaluate the section in relation to the other sections so as to give a just interpretation. In Moi Teaching and ELRC NAIROBI – PET E099 OF 2026 19

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Referral Hospital & 3 others v Gikenyl & 74 others [2026] KESC 50 (KLR). The Supreme Court noted; “…While the language in Section 12 of the ELRC Act may be plain, as a rule of statutory interpretation, courts must ensure that the interpretation of legislation leads to a fair and just outcome, aligning with the Constitution and the purpose of established the legislation. legislative Secondly, interpretative it is a well- principle that statutes dealing with the same subject matter, or which are in pari materia, should be construed together and harmoniously, in order to avoid inconsistencies. This principle was articulated by the South African Constitutional Court in the case of The Independent Institute of Education (Pty) Limited Vs Kwazulu-Natal Law Society and Others [2019] ZACC 47) on which the Court of Appeal relied in its decision in Njuguna Vs Republic [2025] KECA 850 (KLR). We shall return to apply these principles to the question under consideration.” 39. The issue on election of officials of a trade union is provided for under Section 34 of the Act which provides: (1) The election of officials of a trade union, employers’ organisation or federation shall be conducted in accordance with their registered constitutions. ELRC NAIROBI – PET E099 OF 2026 20

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40. This provision donates powers to the trade unions to decide the mechanics of elections vide it was constitution which would appear to suggest that despite the above Section 31(4)(a) suggesting that persons who are non-members can view for the position of Secretary General, the discretion lies with the respective trade union. This discretion is protected by the Constitution under Article 41(4), which underscores for the autonomy of trade unions as follows: (4) Every trade union and every employers’ organisation has the right— (a) to determine its own administration, programmes and activities; (b) to organise; and … 41. In its ruling delivered on 1st April 2026 the court found found that the 1st Petitioner’s remittance of the sum of Kshs. 72,000/= did not revive his union membership and none of the Petitoners averred or provided evidence to demonstrate that they had complied with the procedural formalities attendant to a union election, which they were aware of. The 2 nd Petitioner provided no evidence of being an elected official of the union or designated delegate. The dearth of relevant particulars was the undoing of the 2nd Petitioners case. 42. It is trite law that he who alleges is bound to establish the allegations as ordained by the provisions of section 107, 108 and 109 of the Evidence Act. See Mutisya v Muli (2015) KECA 612 (KLR) Miller v Minister of Pension (1947) 2 ALLER 372. ELRC NAIROBI – PET E099 OF 2026 21

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43. From the foregoing analysis it is clear that the provisions of section 31(1) and (4) (a) of the Labour Relations Act did not grant the 1st Petitioner the absolute right to const for the position of the Secretary General of the 1st Respondent. He still had to contend with the provisions of the Constitution of the union. This is because trade unions are associations of members who agree on how to govern themselves as mandated by the constitution provided they act in accordance with the law. Neither of the Petitioners evidentiary demonstrated how their rights were violated by the Respondents or any of them. Finally, they did not contest the elections held on 3 rd April 2026 on any sustainable ground. In upshot of the foregoing is that the petition dated 26 th March 2026 lacks merit and it is accordingly dismissed. Parties shall bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 23RD SEPTEMBER, 2026 DR. JACOB GAKERI JUDGE ORDER In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the ELRC NAIROBI – PET E099 OF 2026 22

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Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. DR. JACOB GAKERI JUDGE ELRC NAIROBI – PET E099 OF 2026 23

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