Peter Kipkurui Bett v Edward Kaso Obwocha & 5 others

clearance under its constitution. He did not pay the nomination fee by the required date and was not a delegate or a member of any branch executive committee. Aggrieved by the rejection of his application, the petitioner filed this petition on 6 May 2026, 18 days after the election results were announced. The petition is time-barred under the Trade Unions Elections (Election Petition) Rules, Legal Notice 64 of 2014. Under Rule 3, a petition challenging the validity of an election should be filed within 7 days after the date of the election results. The 3rd respondent's election results were announced on 18 April 2026. The time to challenge the same lapsed on 25 April 2026. Under Rule 5(1) and 10(1) of the Rules, an election petition should state whether the petitioner is entitled to petition under section 34(4) of the Labour Relations Act (the LRA). Rule 10(1) requires a petitioner to deposit security for costs that may become payable within 10 days of presenting a petition under the Rules. The petitioner has not complied with section 34(4) of the LRA. The petition is unjustified and filed in contravention of Rule 5(1) of the Rules. The failure to furnish security cannot cure a petition that fails to comply with mandatory rules. In Sakwa v Kenya National Private Security Workers Union & 3 Others, Petition E010 of 2026, the court dismissed the petition for the petitioner's failure to furnish security and for refusing to plead the statutory grounds of challenge. Section 34(4) of the LRA is mandatory and, read with Rule 5 of the Practice Directions on Trade Union Elections, a petitioner must comply. ELRC NAIROBI RULING PETITION NO. E147 OF 2026 2

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The petitioner also failed to demonstrate that he has a good petition or that his petition aligns with the law, as required. The details relating to the date when the petition was filed are confirmed through the Case Tracking System (CTS). An out-of-time petition cannot stand and must be struck out, as held in Nkamasiai & another v Juhudi Kilimo C0. Limited & another’s [2026] KEHC 1834. The respondents submitted that the petitioner's contention that the Practice Directions allow 21 days while the Rules allow 7 days to file a petition is incorrect, since under section 83 of the Act, the Minister developed the Rules, while the Chief Justice issues the Practice Directions under the ELRC Act. In Kenya Bankers Association v Cabinet Secretary for the National Treasury & 2 others [2021] KEHC 9513, the court held that while Practice Directions should be strictly adhered to, they are handmaidens of justice; they are not law but implied directions that guide the procedures for conducting suits in court. The law to amend the Rules by extending time. The applicable law does not provide for extension of time. The Practice Directions cannot override substantive law. A petition filed out of time cannot be cured, and in this case, the respondents' objections should be allowed, and the petition struck out. The petitioner submitted that the 1 st respondent filed similar preliminary objections in Nakuru ELRC JR E002 of 2026 and Nyeri E006 of 2026. The same objections relate to the issue of time under the Rules and Practice Directions. In the Nakuru and Nyeri cases, the courts have since issued judgments on the application of the Practice Directions. Both courts maintained that the initiation of a constitutional petition cannot be barred in substance under Article 159 of the Constitution. The court should look not at technicalities but at substantive justice. Similarly, judicial review applications are anchored in the Constitution and address a decision-maker's procedural ELRC NAIROBI RULING PETITION NO. E147 OF 2026 3

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and substantive compliance with the law; therefore, the court, guided by the Constitution, should hear the parties on the merits. The petitioner submitted that he sought leave to amend his petition to correct the missing typing error, which is allowed under the Employment and Labour Relations Court (Procedure) Rules. Also, in filing a petition, the lack of reference in the hearing to section 12 of the ELRC Act and section 34(4) of the LRA is not fatal. Once the court properly exercises its jurisdiction, it should hear the petition on the merits. Article 159(2) (d) of the Constitution enjoins the court to hear a petition without undue regard to technicalities. Rules of procedure should not be applied in a way that prejudices a litigant. The petitioner submitted that the Practice Directions are subject to the substantive statutes. They cannot be applied draconically to defeat justice under Article 23(3)(f) and Article 22(3)(d) of the Constitution; the court may consider the petition on its merits. The respondents' objections should be dismissed to allow the petitioner a fair chance to be heard on his petition. Determination The objections herein relate to the timelines for filing a petition under Rule 3 of the Trade Unions (Election Petition) Rules and Rules 5(1) and 10(1) of the Trade Unions (Election Petition) Rules. These provisions guide parties on filing a petition challenging trade union elections within mandatory timelines, which the respondents assert the petitioner failed to meet. The petitioner filed his petition dated 5 May 2026 on 6 May 2026. The petition is premised on the Constitution and the LRA. At the core of his petition is a challenge to the eligibility of persons to be members, voters and candidates in trade union elections. The petition is premised on the fact that the 3rd respondent conducted its national elections on 18 April 2026. The petitioner submitted his notice of ELRC NAIROBI RULING PETITION NO. E147 OF 2026 4

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intention to vie for the position of National Secretary Secondary, and he contends that it was rejected due to conflict, bias, and the process's unconstitutionality. Ultimately, the petitioner is seeking various orders and declarations, including that the court should declare that a proper interpretation of unionisable employees under section 2 of the LRA bars the 1 st and 2nd respondents as members of the 3rd respondent, that the 1st and 2nd respondents were not qualified to contest in elections held on 18 April 2026, they contravened section 33(a) of the LRA by voting and an order declaring the elections as a nullity and calling for a by-election for the position of national secretary secondary and national secretary tertiary. The petition is thus not, per se, a challenge to the 3 rd respondent's elections, although the materials attached in support thereof relate to the election returns. Indeed, a petition anchored under the Constitution, the ELRC Act, and the LRA provisions, as the petitioner has done herein, should be heard without undue regard to technicalities. Whereas the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions 2025 and the Trade Unions (Election Petition) Rules are necessary for the orderly conduct of trade union elections, such as those held by the 3 rd respondent on 18 April 2026, the petition herein is not solely about the elections. It seeks an interpretation of section 2 of the LRA regarding the participation of nonmembers of the trade union in the elections, and the application of section 33(a) of the LRA regarding vying, voting, and overall participation in trade union elections such as those of the 3rd respondent. The Court must therefore hear the petition on its merits and determine all issues raised by the petitioner, including whether a by-election should be held for the positions of National Secretary Secondary and National Secretary Tertiary. ELRC NAIROBI RULING PETITION NO. E147 OF 2026 5

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The issues thus framed in the petition will be addressed without invoking the timelines under the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions 2025, or the Trade Unions (Election Petition) Rules as the primary foundation of the petition. Accordingly, the petition must be heard on its merits pursuant to articles 1, 2, 10, 22, 23, 41, 47 and 50 of the Constitution as framed by the petition. On the question of deposit of security, as addressed above, the petition herein, not solely premised on the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions 2025 or the Trade Unions (Election Petition) Rules, does not justify a security deposit. However, where such security deposit is necessary and justified, the respondents must address this formally and as necessary. Locking out the petitioner at this instance in view of the findings above will not foster the interests of justice. Accordingly, the Notice of Preliminary Objections dated 15 May 2026 is without merit and is hereby dismissed. Costs to abide the outcome of the petition. Delivered in open court this 30th day of September 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi …………………………………………… ……… ELRC NAIROBI RULING PETITION NO. E147 OF 2026 6 and …………………………………..

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