Onyango v Opiyo & 5 others

RULING 1. The Preliminary Objection by the 3rd Respondent dated 23rd March 2026 against the Petition and application dated 12th March 2026 is for determination. The 3rd Respondent contends that the Petition is defective and incompetent for failure to comply with Rule 6(1) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions. It further contends that, having been founded on a defective Petition, the application is equally incompetent. The 3rd Respondent also asserts that the failure to comply with Rule 6(1) constitutes a procedural defect, while the omission or misstatement of material facts constitutes a substantive defect, thereby rendering both the Petition and the application unsustainable. 2. The Preliminary Objection was canvassed by way of written submissions. On 30th July 2026 when the matter was mentioned to conrm ling of submissions counsel for the 1st & 2nd Respondents as well as for the Interested Parties indicated that they will not be ling submissions. 3rd Respondent’s Submissions 3. The 3rd Respondent submits that the Petition contravenes the mandatory provisions of Rule 6(1) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions because it does not state the election results, the date on which the results were declared, or the reliefs sought. It is contended that these omissions make it impossible for the Court to ascertain the factual foundation upon which the alleged electoral irregularities are to be interrogated and, further, to determine whether the Petition was led within the prescribed timelines, given the time-bound nature of election petitions. 4. The 3rd Respondent emphasizes that these omissions go to the root of the competence of the petition rendering it incurably defective and liable to being struck out in limine. To buttress its position, reliance is placed on Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others [2016] eKLR, where it was held: ‘’This court has on a number of occasions remarked upon the importance of rules of procedure, in the conduct of litigation. In many cases, procedure is so closely intertwined with the substance of a case, that it bets not the attribute of mere technicality. The conventional wisdom, indeed, is that procedure is the handmaiden of justice. Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the court would not hesitate to declare the attendant pleadings incompetent.’’ 5. As concerns jurisdiction the 3rd Respondent submits that the Petitioner’s non-compliance with Rule 6 (1) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, renders this court bereft of jurisdiction. It emphasizes the use of the word “shall” in the Rule, makes compliance mandatory and peremptory. In this regard, the 3rd Respondent refers to the Black’s Law Dictionary, 6th Edition, on the meaning and eect of the word “shall”, and relies on King’ola v Wambugu & 2 others [2023] KECA 840 (KLR), where the Court of Appeal underscored that the use of the word “shall” ordinarily denotes a binding obligation and that compliance with a provision couched in such terms is compulsory. The 3rd Respondent also relies on the decision of the Supreme Court of Nigeria in Dr Arthur Nwankwo & another v Alhaji Umaru Yar’Adua & others (2010) LPELR-2109(SC), in which the Court observed that, in statutory interpretation, the word “shall” is ordinarily a word of command intended to enforce compliance rather than confer a discretion. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2545/eng@2026-09-24 2

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6. On costs, the 3rd Respondent submits that the same should be borne by the Petitioner. It urges the Court to be guided by the principles on the award of costs set out in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] KESC 31 (KLR). Petitioner’s Submissions 7. In opposition to the Preliminary Objection the Petitioner submits that it is unmerited and should be dismissed with costs to pave way for hearing of the matter on merit. He asserts that the Petition discloses all the relevant details under the law. In particular, the Petitioner draws the Court’s attention to the citation of the Petition and paragraph 2 thereof, which identify 6th March 2026 as the date on which the impugned elections were conducted. He further points out that the same paragraph identies the 1st Respondent as the branch secretary-elect. The Petitioner also refers to page 2 of the Petition, where he seeks an order nullifying the 1st Respondent’s election as the Maseno Branch Secretary. In addition, he relies on paragraph 11 of the adavit in support of the Petition, which sets out the votes garnered by the respective candidates, namely, that Philip Onyango received 152 votes while the 1st Respondent received 184 votes. 8. The Petitioner maintains that as far as possible cases should be allowed to proceed on merit and should not be disposed o on the basis of technicalities. He relies on Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others [2016] KESC 2 (KLR), where the where the Supreme Court declined to strike out an appeal that did not comply with the Supreme Court Rules. The foregoing notwithstanding, he asserts that even assuming that there was some degree of non-compliance with the applicable procedural requirements, striking out the Petition would not be the appropriate course. He contends that Rule 16(2) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025, gives the Court latitude to grant leave for amendment of a Petition where necessary. He relies on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2013] KECA 113 (KLR), where the Court emphasized that election disputes should not be determined solely through a rigid application of procedural rules where doing so would undermine substantive justice. The Court observed that procedural rules are intended to serve the administration of justice and remain subordinate to the Constitution and statute, with the ultimate objective being the fair and just determination of disputes. Disposition 9. The dispute before the Court is an election dispute between a member of a trade union. It is asserted that the Petitioner has not complied with Rule 6(1) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025. Under the law, section 34 of the Labour Relations Act is the guiding light. For one to present a viable election petition, there must be citation of the section and the title must appear as in this Petition. The Petition before the Court is required to comply with Rule 6(1) which provides the following must be included in the Petition: a. the name, physical and postal address, email address, telephone number and any other necessary particulars of the petitioner, respondent or the union ocial whose election is challenged; b. the date when the election in dispute was conducted; c. the results of the election, if any, and however declared; d. the date of the declaration of the results of the election; e. the grounds of law or fact and particulars upon which the petition is presented; and https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2545/eng@2026-09-24 3

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f. the relief the Court is requested to grant. 10. Where a trade union member is aggrieved by the outcome of the trade union elections, they must move the Court as required by statute otherwise the jurisdiction of the Court is not properly invoked. In the matter before me, there is no indication as to these particulars under Rule 6(1) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions 2025. In line with precedent, the Petition before me is grossly incompetent and is therefore struck out. However, each party will bear their own costs. Petition struck out, no order as to costs. 11. Top of Form 12. Bottom of Form It is so ordered. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF SEPTEMBER 2026 NZIOKI WA MAKAU, MCIARB. JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2545/eng@2026-09-24 4

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