Fredrick Mwaka v Kenya Medical Practitioners Pharmacists and Dentists Union & 2 others

JUDGMENT 1. The Petitioner was a medical practitioner and a member of the 1st Respondent. He brought the case against the 1st Respondent in his own capacity, seeking redress for constitutional violations, vide a Petition dated 12th March 2026, seeking:a) A Declaration that the election process initiated by the Respondents is unconstitutional, unlawful and in violation of the Constitution of the 1 st Respondent. b) A Declaration that the nomination fees imposed by the 2 nd Respondent are unlawful and unconstitutional. c) A declaration that the voters' register currently published by the Respondents is defective and cannot be used to conduct a credible and fair election. d) An order suspending or stopping the impending elections of the 1 st Respondent pending strict compliance with the union constitution. e) An order directing the 1st Respondent to constitute a new Independent Electoral Committee sanctioned by the appropriate governing organ of the union. f) An order directing the Respondents to prepare and publish a verified and accurate voters' register before conducting any election. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 2 | 20

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g) An order directing that the election be conducted under a properly constituted caretaker administration or Trustees in accordance with the constitution of the 1st Respondent. h) Costs of this Petition. i) Any other relief that this Honorable Court may deem fit and just to grant. 2. The Petition was filed alongside the Supporting Affidavit of the Petitioner sworn on 12th March 2026, and the documents attached thereto. 3. In response to the said Petition, the Respondent filed a Replying Affidavit sworn by DR. DAVJI BHIMJI ATELLAH on 17 th March 2026 and opposed the Petition. The Petitioner’s case in summary 4. The Petitioner states that he is a member of the 1 st Respondent Union who has expressed interest in contesting for the position of Chairperson in the upcoming elections of the Union. The Petitioner challenges the 1 st Respondent’s election process for being unlawful, unconstitutional and in violation of the 1st Respondent’s Constitution for the reasons that: the 1 st Respondent’s Constitution provides that the relevant governing organ responsible for decision-making be composed of five (5) members, but the current leadership of the 1st Respondent comprises only four (4) members and is therefore improperly constituted; and the decision to conduct the J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 3 | 20

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elections was made without a properly convened meeting of the relevant governing organ of the Union and without approval of any election budget. 5. Additionally, the Petitioner complains that the 2nd Respondent is being financed and facilitated by the current leadership of the 1 st Respondent, which creates a serious conflict of interest and undermines the independence and impartiality of the electoral body. According to the Petitioner, once the leadership positions of the Union were declared vacant, governance of the union ought to have been vested in the Trustees or a caretaker committee pending the conclusion of the election process. However, the current leadership of the 1 st Respondent continues to exercise control over the electoral process contrary to the Union Constitution and principles of electoral fairness. 6. It is also averred that the 2nd Respondent has imposed exorbitant nomination fees for candidates seeking to contest the elections. These fees are not provided for in the Constitution of the Respondent and have the effect of unfairly restricting members from exercising their democratic right to contest for Union leadership. The Petitioner also contends that the voters' register released to members of the Union contains numerous inconsistencies and inaccuracies, and therefore cannot form the basis of a credible, free and fair election. For instance, some members appearing in and/or included in the register, specifically intern doctors, appear despite failing to follow due process as provided for under the Union Constitution, J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 4 | 20

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which requires initial registration with Branches, payment of subscription fees and signing the relevant forms for admission. 7. The Petitioner states that the previous election conducted by the 2nd Respondent was nullified for non-compliance with the Union Constitution and electoral procedures. Therefore, the current election should not be conducted by the same electoral body without demonstrating any reforms or corrective measures. 8. The Petitioner argues that the Respondents, through their conduct, are in contravention of the Petitioner’s Constitutional rights under Articles 10 (lack of transparency and accountability), 36 (freedom of association, including the right to form, join or participate in the activities of an association of any kind), 41 (fair labour practices, including the right to participate in union activities), and 47 (fair administrative action). Respondent’s case in brief 9. The Respondent opposes the Petition on the ground that the Petitioner has not demonstrated his purported expressed interest in contesting the position of National Chairperson in the upcoming elections scheduled for 2nd April 2026, nor has he proved that he is a member of the 1st Respondent capable of vying for the said position. Hence, as he is bringing the Petition “IN HIS OWN CAPACITY”, the Petitioner has failed to sufficiently demonstrate locus to this Court. While they admit that the 2nd Respondent initiated the process of conducting elections on 16th February 2026, vide official communication in J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 5 | 20

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line with the Union’s Constitution, they deny the Petitioner’s claims of irregularities and unlawful conduct. real financial and organisational consequences to the Union. 10. The Respondents also challenge the Petition on the premise that the issues raised therein have been litigated before the Court (Hon. Lady Justice Maureen Onyango) in Cheruiyot v Independent Electoral Committee (IEC) Kenya Medical Practitioners, Pharmacists and Dentists' Union (KMPDU) & another [2026] KEELRC 389 (KLR), hence the same is Res Judicata as similar questions have been determined by a competent court of equal standing. Entertaining this matter would therefore be akin to entertaining an appeal against the decision of Hon. Lady Justice Maureen Onyango delivered on 12th February 2026. 11. It is averred that the 2 nd Respondent (the Independent Electoral Committee) is an independent committee established under Article IX of the 1st Respondent’s registered Constitution. According to Article IV (D) of the Union’s Constitution, the National Executive Committee (NEC) has the sole mandate of appointing members to various committees, including the 2 nd Respondent (Independent Electoral Committee), and further possesses the authority to oversee the functioning of all such committees. In line with those provisions, the National Advisory Council (NAC) nominated a three-member selection panel to steer the recruitment of the Independent Electoral Committee (IEC). Following a competitive recruitment and interview process, the selection panel settled on five members to serve in the Independent J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 6 | 20

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Electoral Committee. As such, it is the Respondents’ case that the NEC as constituted on 17th January 2021 properly and legally appointed the members of the current Independent Electoral Committee (IEC) to conduct elections and perform all functions due to be performed by the IEC under Article IX. 12. It is further averred that Article V (A) (2) of the Union’s Constitution provides that the Delegates Conference, whether Annual or Special, is the supreme authority of the Union and its decisions are final and binding on all members. In accordance with Article V (B) & (C) of the Union’s Constitution, the Union’s democratic structure ensures that each delegate attending an Annual Delegates Conference (ADC) or Special Delegates Conference (SDC) represents twenty (20) bona fide members who are eligible to vote which would include representation for the Claimant herein; while in accordance to Article V (D) (6) of the Union’s Constitution, one of the fundamental functions of the ADC or SDC is to approve members who have been appointed by the NEC to various Union committees. It is stated that the persons appointed to the IEC on 17th January 2026 were formally presented before the Union’s Special Delegates Conference on 13th February 2021, where they were duly ratified by the highest decision-making organ of the Union at the Emara Ole Sereni Hotel, following a vote via secret ballot where the majority of the 235 delegates present voted in favour of their adoption. As determined by the Hon. Lady Justice Maureen Onyango, the NEC cannot independently vary or rescind the decision to appoint members of the IEC once that decision was ratified by the SDC of 13th February 2021, and therefore the IEC as J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 7 | 20

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appointed and ratified enjoys an unlimited term under the Union’s current constitutional framework. Any decision to terminate the term of any IEC member for alleged lack of independence or bias must first be raised and passed at an ADC or SDC; thereafter, the NEC is empowered to make new appointments which must then be ratified at a subsequent ADC or SDC. 13. The Respondents additionally explain that under Article V (A) (4) of the Union’s Constitution, the agenda items for the ADC or SDC, which would include a challenge on the constitution of the IEC, is generated by members through their branches and forwarded by the branch secretary to the National Advisory Council (NAC) for inclusion in the agenda by myself as Secretary General. This issue has never been raised by any branch secretary prior to all previous ADC and SDC, as a subject to be included in the agenda and consequently the IEC as constituted has never been impugned or faced any challenge. Indeed, the National Executive Committee (NEC) of the 1 st Respondent, in a meeting held on 3rd October 2025, formally resolved that the Independent Electoral Committee (IEC) remains active and is the body mandated to oversee the upcoming elections. 14. On the issue of the election budget, it is stated that during the same NEC meeting of 3rd October 2025, a provisional election budget was approved, subject to review by the IEC, to facilitate the 2026 election cycle. The 1 st Respondent therefore maintains that it has acted in strict compliance with its J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 8 | 20

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registered Constitution and the notification from the Registrar of Trade Unions in preparing for the 2026 elections. 15. The allegations by the Claimant regarding the composition and legitimacy of the 2nd Respondent are denied, with the Respondents emphasizing that the committee was properly recruited, ratified, and remains functional as per the Union's internal governance structures. On the issue of the nomination fees, the Respondents contend that the 2 nd Respondent on its own volition and in line with its independence, set nomination fees for candidates. They deny that the fees are restrictive, and state that an estimated 132 applicants have paid the said fees without question demonstrating that the fees were neither exclusionary or excessive as alleged by the Petitioner. The Respondents state that the Court can only interfere in the management of independent bodies in limited situations and the Petitioner has not sufficiently moved this Court to exercise that discretion. 16. The claims raised in respect of the 1 st Respondent’s voter register are stated to be premature as the 1 st Respondent is still in the process of cleaning up its register. It issued a communique on 8th March 2026 opening a final remedial window to enable members to regularise their registration status. The final register not having been issued, the Petitioner cannot seek to impugn it at this point prematurely. DETERMINATION J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 9 | 20

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17. The Petitioner filed submissions dated 24th June 2026. The Respondent did not file submissions. 18. The court, on perusal of the petition and response and the written submissions of the petitioner, finds the issues for determination in the petition to bea. Whether the petition is res judicata pursuant to the ruling of the court in Mweresa & 6 others v Kenya Medical Practitioners Pharmacists and Dentists’ Union & 6 others [2026] KEELRC 895 (KLR). b. If in the negative, whether the petitioner is entitled to the relief sought. The law 19. Article 41 provides for fair labour practices as follows- ‘41. Labour relations (1)Every person has the right to fair labour practices. (2)Every worker has the right— (a)to fair remuneration; (b)to reasonable working conditions; (c)to form, join or participate in the activities and programmes of a trade union; and d)to go on strike.’’ (emphasis given) 20. Section 34 of the Labour Relations Act provides for election of union officials as follows- J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 10 | 20

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‘34. Election of officials (1)The election of officials of a trade union, employers’ organisation or federation shall be conducted in accordance with their registered constitutions. (2)The constitution of a trade union, employers’ organisation or federation shall— (a)not contain a provision that discriminates unfairly between incumbents and other candidates in elections; and (b)provide for the election, by secret ballot, of all officials of a trade union at least once every five years (3)Notice of the election of officials under this section shall be given to the Registrar in the prescribed form within fourteen days of the completion of the election. (4)Disputes arising from, or connected directly or indirectly to, elections held under this section may be referred to the Industrial Court. (5)The Registrar may issue directions to a trade union, employers’ organisation or federation to ensure that elections are conducted in accordance with this section and their respective constitutions.’ 21. The procedure for challenging union elections is set out in the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025, published by the Chief Justice, Hon. Martha Koome, on 1st September 2025. Direction 3 states- J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 11 | 20

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‘3. (1) These procedure and practice directions shall apply to petitions in respect of trade union elections including for both workers trade unions and employers’ associations duly registered under the Labour Relations Act. (2) A petition about a trade union election dispute is essentially for enforcement of the right to fair labour relations as provided in Article 41 and the other relevant provisions of the Bill of Rights in the Constitution and shall be instituted in accordance with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules as provided for in rule 10 of the Employment and Labour Relations Court (Procedure) Rules, 2024.’ Whether the petition is res judicata pursuant to ruling of the court in Mweresa & 6 others v Kenya Medical Practitioners Pharmacists and Dentists’ Union & 6 others [2026] KEELRC 895 (KLR) 22. The cause of action was the process leading to the union's national elections, which had been scheduled to be held on 2nd April 2026. The petitioner stated that he had expressed interest in contesting for the position of national chairman in the said elections. In paragraphs 27 to 30, the petitioner states the following particulars of the breach of his rights‘PARTICULARS OF BREACH OF RIGHTS 27. Violation of the Right to Freedom of Association (Article 36) J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 12 | 20

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27.1. The imposition of unlawful nomination fees has the effect of preventing members from participating in the leadership of the union. 27.2. The defective electoral process undermines the ability of members to freely participate in union governance. 28. Violation of the Right to Fair Labor Practices (Article 41) 28.1. The conduct of elections in a manner that is inconsistent with the union constitution undermines the Petitioner's right to participate in trade union leadership. 28.2. The failure to conduct elections in a transparent and lawful manner constitutes an unfair labor practice. 29. Violation of the Right to Fair Administrative Action (Article 47) 29.1. The decision to impose nomination fees not provided for in the union constitution is unlawful and unreasonable. 29.2. The conduct of the election process without proper authorization from the union's governing organ is procedurally unfair. 30. Violation of the Principles of Good Governance (Article 10) 30.1. The election process lacks transparency and accountability. 30.2. The financing of the electoral body by the incumbent leadership undermines democratic principles and participation of members.’ J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 13 | 20

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23. A few days after the filing of this petition, the other doctors of the petitioners filed a petition at the Kakamega ELRC, dated 17th March 2026, which matter was transferred for hearing with this matter. The grievances in the 2 petitions were the same: challenging the composition of the 1st Respondent’s Independent Electoral Committee, which was to oversee the then-upcoming elections; the nomination fees as exorbitant; and the role of the incumbents in the then-upcoming elections. 24. The court considered all the foregoing issues on merit and delivered its decision in Mweresa & 6 others v Kenya Medical Practitioners Pharmacists and Dentists’ Union & 6 others [2026] KEELRC 895 (KLR) on 1st April 2026, clearing the path for holding the impugned elections on 2nd April 2026. The court held as follows‘In the upshot, the Court finds that the Independent Electoral Committee as appointed on 17th January 2021 and ratified on 13th February 2021 is properly constituted under the 2nd Respondent’s Constitution as currently framed. Further, that the extension of the term of office of the Committee at the meeting of the National Executive Council of 3rd October, 2025 was not in violation of any provision of the Union Constitution.’’ So far, no evidence has been placed before me to suggest that the elections due on 2nd April 2026 are not being conducted as per the union constitution as stated in section 34 of the Labour Relations Act to wit- ‘(1)The election of officials of a trade union, employers’ organisation or federation shall be conducted in accordance with their registered constitutions.(2)The constitution of a trade union, employers’ organisation or federation shall— J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 14 | 20

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(a)not contain a provision that discriminates unfairly between incumbents and other candidates in elections; and(b)provide for the election, by secret ballot, of all officials of a trade union at least once every five years. (3)Notice of the election of officials under this section shall be given to the Registrar in the prescribed form within fourteen days of the completion of the election.(4)Disputes arising from, or connected directly or indirectly to, elections held under this section may be referred to the Industrial Court. (5)The Registrar may issue directions to a trade union, employers’ organisation or federation to ensure that elections are conducted in accordance with this section and their respective constitutions.’’ This is the only basis the court may intervene in the process. 15.Regarding the alleged lack of independence due to the appointment of IEC members to standing committees, the court determined that nothing in the union's constitution prohibits IEC members from being appointed to these committees. Section 34(1) of the Labour Relations Act, 2007, states that elections for trade union officials shall be conducted according to the union’s registered constitution. Justice Onyango (supra) summarized the appointment process to standing committees as follows: 'Article IV(D) of the 2nd Respondent’s Constitution vests in the National Executive Committee the authority to appoint members to the various standing committees.'39.The composition and appointment of the Independent Elections Committee is provided for in Article IX as follows:1.Five bona fide union members who will not be eligible to run for an elected office and cannot co-opt.2.Criteria for appointment- i.Member of the Union J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 15 | 20

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sufficiently literate in Kiswahili and English or either ii.Registered member of the Union and Medical board iii.Two (2) years post internship iv.No record of criminal conviction v. Shall have paid dues for at least 12 months. The Judge then observed ‘Article VIII provides for the Union Standing Committees but does not mention the Independent Elections Committee as one of the Union Standing Committees. However, by its nature and as stated at paragraph 7 of the Respondents’ Replying affidavit and Witness Statement, under Article IV(D) the National Executive Committee has the role and mandate to appoint members’ of various committees including the Independent Elections Committee.41.This therefore means that the Independent Elections Committee is one of the standing committees of the 2nd Respondent even though it is not specifically mentioned in Article VIII of the Constitution.42.Article VIII (4) and (5) provide for tenure of the Standing Committees as follows:(4)The committees shall serve five-year renewable terms.(5)In the event of a vacancy in a committee by resignation, dismissal or death, the National Executive Council shall appoint a new member to fill the gap.’’ The court found no basis to deviate from the foregoing observation by Lady Justice Onyango. Save for apprehension of bias arising from lawful appointments to the standing committees, the applicants' apprehension is not supported by any other valid ground to challenge the capacity of the IEC members. 16.On the allegations related to the registers, I agreed with the respondents that those are matters subject to election appeals. There is no evidence placed before me of any voter who has been disfranchised J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 16 | 20

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and or denied the right to vote or is irregularly in the register. The register is not before the court. The issue of whether the registers have bona fide voters is an issue for the IEC to decide as per the union constitution. It would be overreach for the court to intervene in the election process based on the allegations of irregularities of the register, without sight of the approved register, when there is a body with a mandate to conduct the union elections, including approval of the register. On the issue of nomination fees, again there was no evidence before court that the same is against the union constitution. It is proper to give the IEC the opportunity to do its work as per the union constitution. The foregoing led the court to conclude there was no disclosure of a prima facie case. 17.The court upholds the decision in Cheruiyot v Independent Electoral Committee (IEC) Kenya Medical Practitioners, Pharmacists and Dentists' Union (KMPDU) & another (Employment and Labour Relations Cause E070 of 2025) [2026] KEELRC 389 (KLR) (12 February 2026) (Judgment), THAT –‘It is a well-established principle that courts should be slow to interfere with the internal affairs of voluntary associations, including trade unions, where such bodies act within their constitutional mandate and the law. The role of the Court is supervisory, to ensure compliance with statutory and constitutional requirements.59.In the present case, no violation of the Labour Relations Act or the Union’s Constitution has been established. Judicial intervention would therefore be unwarranted.60.In the upshot, the Court finds that the Independent Electoral Committee as appointed on 17th January 2021 and ratified on 13th February 2021 is properly constituted J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 17 | 20

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under the 2nd Respondent’s Constitution as currently framed. Further, that the extension of the term of office of the Committee at the meeting of the National Executive Council of 3rd October, 2025 was not in violation of any provision of the Union Constitution.’’ The decision was dated 12th February 2026. There is no evidence of any issue of eligibility of the 2nd to 6th Respondent placed before the court post the judgment to support the allegations of lack of eligibility and bias. Like my Sister Judge, I hold that no violation of the Labour Relations Act or the Union’s Constitution has been established. Judicial intervention is therefore unwarranted. 18.In the upshot the application dated 17th March 2026 is disallowed. Costs in the cause. 19.The Court further orders the consolidation of this Petition with ELRCPET/E092/2026 Fredrick Mumo Mwaka Vs Kenya Medical Practitioners Pharmacists and Dentists Union and the Independent Electoral Committee of KMPDU And 1 Other (formerly ELRCC/E269/2026) as the issues arise from similar cause of action and that is in the interest of justice and for prudent utilization of judicial time. The court further orders that the petitioner file written submissions in the petition within 21 days and serve. The respondent to file in 21 days of service. Mention on 18th May 2026 for highlighting of submissions in both petitions.’ 25. It is the court's finding that it is now functus officio in the cause, and that the instant petition is res judicata, even though it was filed 4 days earlier. The J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 18 | 20

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court finds that there is no live controversy for it to determine. The court recognised that the facts in this petition were the same as in the Mweresa case above and further held— ’19. The Court further orders the consolidation of this Petition with ELRCPET/E092/2026 Fredrick Mumo Mwaka Vs Kenya Medical Practitioners Pharmacists and Dentists Union and the Independent Electoral Committee of KMPDU And 1 Other (formerly ELRCC/E269/2026) as the issues arise from similar cause of action and that is in the interest of justice and for prudent utilisation of judicial time.’’ 26. Consequently, the instant petition is deemed to have been determined by the decision in Mweresa & 6 others v Kenya Medical Practitioners Pharmacists and Dentists’ Union & 6 others [2026] KEELRC 895 (KLR) delivered on 1st April 2026. 27. The petition is consequently dismissed. Each party is ordered to bear their own costs, as this is a case in which union members are exercising their labour rights. 28. The file is marked closed. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 19 | 20

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JEMIMAH KELI JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner: D. M. Mutinda, Mwendwa & Co. Advocates Respondents: Wafula, Washika & Associates. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 2 O F 2 0 2 6 P a g e 20 | 20

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