Benard Otieno v Tom Mboya Odege, Union of Kenya Civil Servants & Registrar of Trade Unions (Interested Party)

AND REGISTRAR OF TRADE UNIONS.............INTERESTED PARTY (BEFORE HON. JUSTICE DAVID NDERITU) JUDGMENT I. INTRODUCTION 1.The Petitioner commenced these proceedings by way of a petition dated 18th August 2025 filed through Abok Odhiambo & Company L Advocates seeking for the following reliefs – IN A a) A declaration that the decision by the Respondents Body National Executive Board (NEB) meeting of 21st February O RI G 2025 to terminate membership of the Petitioner in the Union of Kenya Civil Servants is unconstitutional, null and void, and is of no consequence. b) A declaration that the Petitioner is a bonafide member of the 2nd Respondent. c) A permanent order of injunction against the Respondents restraining them from terminating the membership of Petitioner from the 2nd Respondent body and interfering with his democratic participation in the affairs of the labor union, including elections of the union officials at all levels. d) A declaration that the decision by the 2nd respondent body National Executive Board (NEB) meeting of 21st February KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 2|PAGE

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2025 terminating the membership of the petitioner violates the petitioner’s fundamental rights and freedom and is entitled to Compensation. e) An order directing the 1st and the 2nd Respondents to release all withheld allowances for the petitioner, Kshs412,000 (four hundred and twelve thousand Kenya shillings) plus accrued interest at court rates within 30 days from the date of Judgement. L f) An order that the Respondents do bear the cost of this petition. IN A g) Any other order the HON COURT deems appropriate, just and G fit to grant in the circumstance. O RI 2.The petition was expressed to be anchored on Articles 10, 23, 27, 36(1), 41, 47(1), & 50 of the Constitution. 3.The petition was accompanied with a verifying affidavit sworn by the Petitioner on even date, with several annexures thereto. 4.The facts and the law relied upon by the Petitioner are set out in the body of the petition. 5.The Respondents entered appearance through Okong’o Wandago & Company Advocates and filed a replying affidavit sworn by the 1st Respondent on 19th September 2025. 6.By consent, the court directed that the petition be canvassed by way of written submissions. Mr Mulama for the Petitioner filed written KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 3|PAGE

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submissions dated 7th May 2026 while Mr Okong’o for the Respondents filed written submissions dated 31st March 2026. II. THE PETITIONER’S CASE & EVIDENCE 7. The Petitioner, formerly the Branch Secretary of the Kakamega County Branch of the 2nd Respondent (the Union), is challenging the termination of his membership with the Union in a letter dated 28th February 2025, allegedly on account of non-payment of union dues. 8. It was the Petitioner’s case that the decision was made in a National IN A L Executive Board (NEB) meeting held on 21st February 2025, without his prior notice of the allegations, without being afforded an G opportunity to be heard, in violation of the Union constitution of the O RI Union. He contended that the decision was instigated by the 1st Respondent, was made in bad faith, and in contravention of the constitution of the Union. 9. The Petitioner asserted that termination of his membership affected his ability to discharge his functions as Branch Secretary, participate in the affairs of the learn and its organs, take part in elections, and represent members of his branch. He alleged violation of Articles 36, 41, 47, 50(1), 10 & 27 of the Constitution by the Respondent particularly his rights to freedom of association, participation in trade-union activities, fair hearing, fair administrative action, and freedom from discrimination. KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 4|PAGE

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10.He further relied on Articles 12 & 15 of the Constitution of the Union, contending that the prescribed disciplinary and appeal procedures were not followed. In particular, he stated that Article 12(3) required at least a 14 days’ written notice of the allegations and an opportunity to present his case before suspension or expulsion, yet the Respondent did not comply. 11.The Petitioner denied being in arrears of union dues. He stated that deductions were current and that when deductions were not made for L October, November, and December, 2024, he paid Kshs1,700/= IN A directly to the Union and notified his employer to rectify the G anomaly. He relied on Section 52 of the Labour Relations Act, that O RI permits members to pay union dues directly to the Union. He further contended that arrears exceeding 13 weeks result only in loss of voting rights under Section 33(c) of the Labour Relations Act and Article 19(4) of the Constitution of the Union, and, that disciplinary action could only follow a 30-day written demand under Article 12.1(i), of the Constitution of the Union which notice he stated was not issued. 12.The Petitioner stated that he appealed the decision to the Advisory Council pursuant to Article 12(6) of the Constitution of the Union, but the appeal was ignored. He disputed the Respondents’ reliance on KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 5|PAGE

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other Union organs and maintained that the impugned decision arose from the NEB meeting of 21st February 2025. 13.The Petitioner also disputed the relevance of earlier suspension letters relied upon by the Respondents, stating that the suspensions had been lifted by the Court in Kakamega ELRC Petition No. 007 of 2023 which resulted in the reinstatement of the branch officials. 14.In addition to the dispute on membership, the Petitioner claimed for unpaid allowances amounting to Kshs412,000/=. He stated that, as L the branch secretary, he was entitled to monthly allowances of IN A Kshs7,000/= and Kshs8,000/=, which he alleged remained unpaid G from August 2023. He also claimed Kshs24,000/= for attending the O RI National Delegates Conference on 2nd September 2024 and Kshs24,000/= for attending the Advisory Council on 11th April 2025. 15.The Petitioner further alleged that the 1st Respondent obstructed his attempts to pursue his grievances with the Advisory Council. He maintained that the Respondents acted contrary to the constitution of the union and the Constitution of Kenya. III. THE RESPONDENTS’ CASE & EVIDENCE 16.In a replying affidavit sworn by the 1st Respondent, the 1st Respondent stated that as the Secretary General he was in charge communicating decisions made by the Union and its organs to persons entitled to receive such communication. He stated that he KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 6|PAGE

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does not possess an independent authority to make decisions affecting members and would not act in contravention of the constitution of the union, the Labour Relations Act, and other applicable law. 17.The 1st Respondent denied acting maliciously or improperly against the Petitioner. He characterized the Petition as part of what he considers to be the Petitioner’s continued disruption of the operations of the Union and as an attack against the leadership thereof. L 18.On the alleged violation of Article 47 of the Constitution, the 1st IN A Respondent maintained that no material or relevant evidence was G presented demonstrating that the letter dated 28th February 2025, O RI terminating the Petitioner’s membership, amounted to unfair administrative action. He asserts that the decision was made in accordance with the constitution of the union and the Rules and was neither final nor conclusive as the same was subject to review or ratification at the next special or annual delegates conference. 19.The 1st Respondent further stated that the reason for termination of the Petitioner’s membership was expressly stated in the letter and related to matters which the Petitioner did not dispute but instead sought to explain and justify. He maintained that a member of the union who failed to pay union dues, as prescribed by the Constitution, has no right to continue enjoying membership. KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 7|PAGE

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20.The 1st Respondent further cited Article 15(4)(iv) of the constitution of the union, which empowers the National Administrative Council to take appropriate disciplinary action against a member or official for constitutional breaches or indiscipline, subject to a right of appeal to the National Executive Board in support of the action taken against the Petitioner. He further relied on Article 12, of that Constitution that provides for grounds for suspension, including failure to pay subscriptions, gross contravention of the constitution and rules, and L persistent conduct detrimental to the interests of the Union. IN A 21.According to the 1st Respondent, the Petitioner had been under G suspension since 31st August 2023 on allegations that he had O RI persistently acted in a manner detrimental to the interests of the Union. The 1st Respondent stated that the Petitioner was invited to a disciplinary hearing but failed to attend, following which the relevant organs of the Union proceeded to deliberate upon the allegations and made decisions which were subsequently communicated to him. 22.The 1st Respondent maintained that the Constitution of the union establishes an internal dispute-resolution mechanism which the Petitioner was required to exhaust before approaching the Court. He stated that instead the Petitioner prematurely moved to Court without exhausting the available internal mechanisms of dispute resolution. KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 8|PAGE

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23.The 1st Respondent specifically denied that he personally terminated the Petitioner’s membership with the union or removed him from office. He stated that he had no such powers as such powers are exclusively vested with the relevant organs of the Union. He therefore contended that the letter dated 28th February 2025 merely communicated the decision of the National Executive Board and not his personal decision. 24.He further stated that the National Executive Board duly convened L after notice of the meeting had been issued and served on the IN A Petitioner. It was stated that after the Petitioner failed to attend, the G Board proceeded with deliberations and made a decision that was O RI communicated to the Petitioner. According to the 1st Respondent, the Petitioner was therefore given an opportunity to respond to the allegations against him but chose not to defend himself. 25.The 1st Respondent maintained that there was substantial compliance with the disciplinary procedure prescribed in the constitution of the Union. He asserted that the relevant notices and invitations were issued before the decision was made and that the expulsion of the Petitioner from the union arose from conduct considered detrimental to the interests of the Union, including conduct aimed at frustrating and discouraging recruitment of new members. KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 9|PAGE

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26.Finally, the 1st Respondent stated that the Petitioner was fully aware of the internal appeal mechanism of the union and ought to have pursued his dispute before approaching the court with the appropriate organs of the union. He stated that the Petition was therefore premature and improperly filed before exhaustion of the available internal mechanisms. IV. SUBMISSIONS 27.Counsel for the Petitioner submitted on two issues – Whether the IN A L petition dated 18/08/2025 is merited in terms of the prayers sought; prayers sought. G and, Whether the Petitioner has satisfied the threshold to warrant the O RI 28.Counsel contended that the Petitioner was not accorded a fair hearing before his membership was terminated. It was argued that although the 1st Respondent filed a replying affidavit, he failed to adequately rebut the allegation of unfair termination of the Petitioners membership in the union. In particular, Counsel submitted that the Petitioner challenged the assertion that his removal was occasioned by conduct that disrupted the operations of the Union, submitting that no evidence was adduced demonstrating the nature and or extent of the alleged misconduct and disruption of the activities of the Union. 29.Counsel further submitted that the Respondents improperly sought to shift the evidential burden to the Petitioner, whereas the burden of KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 10 | P A G E

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demonstrating that the termination of his membership was procedurally fair rested upon the Respondents. Counsel argued that the Respondents merely relied on the letter dated 28th February 2025 and alleged non-payment of union dues without availing evidence of the alleged arrears. 30.On the issue of union dues, Counsel maintained that the petitioner adequately explained the circumstances surrounding the alleged nonremittance. Counsel submitted that the petitioner adequately L demonstrated that his failure to remit the Union dues was attributable IN A to his employer. It was further submitted that by the time the G Petitioner’s membership was terminated, he had regularized his O RI contributions and paid the outstanding dues for October, November, and December, 2024. It was therefore submitted that there were no outstanding union dues capable of justifying termination of the Petitioner’s membership with the union. 31.Counsel cited the decision in Obulinji v University of Nairobi & Another (2025) KEELRC C 3663(KLR), where the Court found that termination of union membership without due process was unlawful and unfair. Counsel further argued that continued deduction and payment of union dues constituted evidence of continued membership and that members could not arbitrarily be deprived of their voting rights. KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 11 | P A G E

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32.It was further submitted that the reasons contained in the letter suspending the Petitioner and those contained in the letter terminating his membership were materially different. It was thus submitted that the letter of suspension dated 23rd August 2023 and the letter of termination dated 28th February 2025 could not sustain the decision to terminate the petitioner’s membership with the Union. 33.Counsel further argued that the Respondents failed to establish that the National Executive Board indeed met on 21st February 2025 and L resolved to terminate the Petitioner’s membership. Counsel noted IN A that no minutes or other evidence was produced to demonstrate that G such a meeting ever took place and or that the alleged resolution was O RI made. Counsel characterized the response by the Respondents as consisting of mere blanket denials. 34.It was further submitted that the Respondents failed to demonstrate of any arrears in union dues by the Petitioner. Counsel argued that this failure, coupled with his explanation that the non-remittance was attributable to the petitioner’s employer and that the same had subsequently been rectified, undermined the validity of the termination and supported the Petitioner's case that the decision to terminate his membership was actuated by malice. 35.On exhaustion of internal mechanism before approaching the Court, Counsel maintained that the petitioner took steps in pursuing the KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 12 | P A G E

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available avenues before approaching the Court. Counsel pointed the Court to the Petitioner’s letter dated 3rd March 2025 addressed to the 2nd Respondent, in which he objected to the termination of his unio membership. Counsel submitted that the Registrar was the natural first avenue of redress given the Registrar’s statutory role in registration of trade unions and maintenance of the register of trade unions, officials, and members. 36.Counsel further relied on the Petitioner’s letter dated 19th March 2025 L addressed to the Advisory Council of the union, in which the IN A Petitioner raised his grievance concerning the termination of his G membership. Counsel argued that the Advisory Council failed to act O RI on the complaint and that there was no evidence that he was afforded an opportunity to be heard in the alleged Advisory Council meeting scheduled for 3rd April 2025. Counsel therefore argued that the Respondents’ contention that the Petitioner failed to exhaust the available internal mechanisms is without basis. 37.Counsel cited the decision in Alwala v Kenya University Staff Union [2023] KEELRC 3246 (KLR) in support of the argument that administrative action must be lawful, reasonable, expeditious, efficient, and procedurally fair. Counsel submitted that in the above case, the Court found that failure to afford the petitioner an KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 13 | P A G E

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opportunity to be heard before suspension violated his right to fair hearing and proceeded to grant declaratory orders and compensation. 38.In respect to the claim for withheld allowances, Counsel submitted that the Petitioner was entitled to Kshs412,000/= together with interest at court rates. Counsel pointed the court a letter by the Petitioner dated 20th February 2025 addressed to the 2nd Respondent’s Secretary General, in which he requested payment of the withheld allowances. Counsel argued that the request was ignored L and that there is no evidence that the allowances were ever paid. IN A 39.On the other hand, counsel for the Respondents submitted on the G following three issues – Whether the Petitioner’s right to fair hearing O RI was violated; Whether the termination of membership of the petitioner herein followed due process and is thus valid; and Who should bear the costs of this petition. 40.Counsel for the Respondent brought to the attention of the court the fact that the 2nd Respondent conducted elections in March 2026, resulting in the election of new branch union officials. 41.On the first issue, Counsel argued that the Petitioner did not adduce evidence demonstrating that the communication revoking his membership violated Article 47(1) of the Constitution or his right to a fair administrative action. Counsel maintained that the disciplinary KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 14 | P A G E

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process was undertaken in accordance with the constitution of the union and Rules thereunder. 42.Counsel further submitted that the conduct of the Petitioner had been disruptive to the operations of the Union and that he has not disputed the allegation concerning non-payment of union dues, but has instead sought to explain the reasons for his failure to pay. Counsel submitted that Article 4(2) of the Constitution of the Union made payment of prescribed monthly subscriptions a condition precedent L for membership, while Article 12(1)(a) provided for the disciplinary IN A action where subscriptions remain unpaid. G 43.Counsel questioned the Petitioner’s reliance on pay-slips allegedly O RI showing uninterrupted deductions of union dues, noting that although the Petitioner referred to numerous pay slips, he did not produce the same in Court. The Court is urged to draw an adverse inference from the failure by the Petitioner to avail evidence admittedly in his possession. 44.It was further contended that the dispute must be considered against the background of the Petitioner’s earlier suspension as branch secretary, Counsel submitted that through a letter dated 31st August 2023, the Petitioner was informed that the National Executive Board had recommended his suspension following allegations that he had persistently acted in a manner detrimental to the interests of the Union. KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 15 | P A G E

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45. It was submitted that the allegations against the Petitioner included his failure to propagate the objectives of the union, peddling misinformation, orchestrating a campaign against union officials, discouraging potential members from joining the Union and, failing to comply with the prescribed procedures for correspondence with the Secretary General. 46.Counsel contended that the Petitioner’s description of himself as a person committed to reviving the Union and his assertion that this L had generated “hostilities and needless conspiracies” demonstrated IN A his opposition to the union leadership which, according to the O RI suspension. G Respondents had created friction within the Union and justified his 47.Counsel submitted that, in a letter dated 27th October 2023 the Petitioner was invited to appear before the Union’s Dispute Resolution Committee for a disciplinary hearing scheduled for 7th November 2023. However, the Petitioner responded on 3rd November 2023 indicating that he would not attend the hearing. 48.Citing the decision in Musila Thengi & 2 Others [2025] KECA 750 (KLR), Counsel argued that the right to a fair hearing does not entitle a party to dictate when or how he will participate in the proceedings. It was submitted that where reasonable notice is issued, an opportunity to be heard availed, and where such opportunity is given KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 16 | P A G E

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but declined, the subject cannot subsequently complain that his/her right to a fair hearing was violated. 49.Counsel submitted that the absence of minutes from the disciplinary proceedings does not of itself invalidate the disciplinary process. Counsel invoked Sections 107 & 109 of the Evidence Act in submitting that the burden of proof remained with the Petitioner to establish and prove the alleged violation of his rights and his entitlement to the reliefs sought. It was maintained that documentary L evidence demonstrated that the Petitioner was suspended in IN A accordance with the constitution of the union after a valid G disciplinary hearing and, subsequently, removed from the O RI membership of the union following deliberations by the appropriate organs of the Union. 50.Counsel cited the decision in Union Insurance Co. of Kenya Ltd v Kamza H. Abdul Dhanji, Civil Application No. NAI 179 of 1998, in supply of the proposition that the law requires that a party be given a reasonable opportunity to be heard and that once such an opportunity is provided but not utilised, such a party cannot complain merely because he chose not to participate. 51.On the second issue, Counsel submitted that membership of the union is essentially consensual. It was submitted that a person who voluntarily joins the Union is bound by its constitution, rules, KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 17 | P A G E

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standing orders, and the decisions of its organs. Counsel cited Article 4(3) of the Constitution of the Union which expressly provided that upon admission, a member became bound by the said constitution, rules, standing orders, and the resolutions and decisions made by the organs of the Union. 52.Counsel further cited the decision in National Union of Metal Workers of South Africa v Lufil Packaging (Isithebe) and Others CCT 172/19 [2020], in support of the argument that a constitution of L a trade union is legally binding and must be given effect in IN A accordance with its terms. Counsel argued that the Petitioner cannot G simultaneously rely on the constitution of the union in claiming O RI rights of membership while repudiating the provisions governing discipline and removal from the membership thereof. 53.It is thus submitted that disciplinary action may be undertaken by the appropriate organs of the Union, with the National Administrative Council taking disciplinary action in cases of constitutional breaches or indiscipline, subject to the prescribed ratification and appeal mechanisms. Counsel relied on Clause 12 of the constitution of the union as providing grounds for suspension, including failure to pay union subscriptions, gross contravention of the Constitution and Rules, contravention of the Financial Manual, and persistent conduct detrimental to the interests of the Union. KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 18 | P A G E

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54.Counsel submitted that the National Executive Board considers and ratifies disciplinary action, while the National Advisory Council subsequently deliberates on whether to uphold the suspension, remove the official, or rescind the decision. It was submitted that an affected official may thereafter restate the case before the National Delegates Conference, which the Respondents described as the supreme authority in of making of final and binding decisions. 55.Counsel maintained that the 1st Respondent had no personal L authority to expel or terminate the membership of the Petitioner with IN A the union. It was submitted that his role under clause 8 of the G constitution of the union was to enforce and communicate decisions O RI made by the organs of the union. Counsel characterised the allegation by the Petitioner that the 1st Respondent personally terminated his membership as misconceived. 56.It was submitted that the Petitioner was aware of the provisions in the constitution of the union and that the power of suspension and expulsion was vested in the prescribed organs of the union. Counsel argued that the Petitioner failed to demonstrate any breach of the constitution of the union or the rules of natural justice. 57.Counsel cited the decision in Zachary Binyanya & 6 Others v Union of Kenya Civil Servants [2015] KEELRC 1015 (KLR), where it was held that courts should be reluctant to interfere with the internal KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 19 | P A G E

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operations and decisions of private societies, clubs, and trade unions, except where their decisions violate their own rules, constitutions, or the rules of natural justice. 58.Counsel further cited the decision in Justus Kinywa Mugo v Union of Kenya Civil Servants; Registrar of Trade Unions (Interested Party) [2020] KEELRC 1804 (KLR), where the Court recognized Clause 12 of the Constitution of the Union as providing an elaborate procedure for the suspension and removal of an official. Counsel L cautioned the court not to interfere with the internal affairs of the IN A union since the Union acted in accordance with its Constitution and G the law. O RI V. ISSUES FOR DETERMINATION 59.The court has carefully and dutifully gone through the petition, verifying affidavit, further affidavit and the annexures thereto by the Petitioner, the replying affidavit by the Respondents and the submissions by both Counsel for the parties. 60.In my considered view, the following issues are for determination by the court – a) Whether the petition is premature? b) Whether the procedure for the expulsion of the Petitioner from the union as a member and official was procedurally and substantively fair? KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 20 | P A G E

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c) Whether the Petitoner is entitled to reliefs sought; and d) Costs. VI. THE PETITION 61.The Respondents contended that the Petitioner has not exercised his right of appeal to a higher organ of the Union. The Petitioner argued that the 1st Respondent actively blocked his attempts to address his grievances to the Advisory Council. 62.The 1st Respondent is the head of the secretariat of the Union, as per IN A L Article 17 of the Constitution of the Union. He is responsible for the planning, coordinating, and executing the activities of the Union and G implementing the decisions of the National Administrative Council, O RI National Executive Board, the Advisory Council and, the National Delegates' Conference. 63.In a letter dated 19th March 2025 addressed to the Advisory Council, through the 1st Respondent, the Petitioner sought review of the suspension and termination of his membership. The said letter was received on behalf of the 2nd Respondent on 20th March 2025. While they argued that the Petitioner did not appeal, the Respondents did not inform the Court of their response to the above request for review by the Petitioner. 64.Under Article 12(2 to 6) of the Constitution of the Union, an official who has been suspended or removed from office appears before the KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 21 | P A G E

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National Executive Board, the Advisory Council, and finally before the National Delegates Conference, all those organs determine whether the suspension or expulsion of a member or official in that hierarchy is proper and the powers to reverse the same. 65.The 1st Respondent, the secretary of the three organs of the Union, was said to have prevented the Petitioner from addressing his grievances to the Advisory Council. Whether or not the said sentiments are true, it appears to the Court that the petitioner would, L in any event, not be able to fairly, genuinely and possibly invoke the IN A internal procedure, and the Union Constitution does not offer an G alternative path that the Petitioner would have pursued. The Court O RI returns that the petition cannot fail for want of exhaustion of the Union’s internal procedures, especially noting that the Petitioner questioned the legality or lawfulness of the entire disciplinary procedure and decisions made, which would fall outside the admissibility for determination by the said internal procedure. The Court therefore finds and holds that the Petitioner correctly moved to file the petition in court and the same was not premature. VII.EXPULSION FROM MEMBERSHIP 66.The letter terminating the membership of the Petitioner dated 28th February 2025 was on account of the Petitioner's membership in the union and as an official (Kakamega Branch secretary). KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 22 | P A G E

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67. The Petitioner’s case was that when he became aware that the payment of his union dues had been stopped from October 2024, but he informed his employer of the same. He stated that he, however, paid for the arrears thereof in the sum of Kshs1,700/= directly to the 2nd Respondent. The Petitioner argued that his employer had failed to make the deductions, yet no notice of resignation, as required under Section 48(6) & (7) of the Labour Relations Act, had been issued to the employer to stop the deductions. A letter from the Regional L Commissioner dated 7th January 2025, produced as an exhibit by the IN A Petitioner, was sent to the Principal Secretary for Internal Security on G the subject’ matter. In the said letter, the Principal Secretary was stopped. O RI requested to reinstate the deductions that had been irregularly 68.The Petitioner admitted receiving the letter dated 28th February 2025, in which the 1st Respondent informed the Petitioner that he had contravened Article 4(20(a)(b) of the constitution of the union by ceasing to pay his monthly subscriptions. In the said letter, the 1st Respondent indicated that the National Executive Board, in a meeting held on 21st February 2025, had directed that the Petitioner’s name be struck out from the register with the Registrar of Trade Unions as Kakamega Branch Secretary and a member of the Union. KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 23 | P A G E

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It is this removal from membership that is the gravamen of this petition. 69.Article 4 of the constitution of the union provides that – Article 4: Eligibility for Membership (I) Membership of the Union shall be open to employees in the Public Service of the Government of the Republic of Kenya, commonly known as "Public Servants" and whose remuneration is derived directly from estimates voted for by the Parliament of Kenya provide L or from the Consolidated Fund of the Government of Kenya. IN A (2) Every member shall pay such amounts of prescribed monthly G subscriptions as may from time to time be determined by the National O RI Delegates Conference or Special Delegates Conference – (a) through check-off system; or (b) by cash in advance annually at a rate to be determined by a National Delegates Conference (3) Upon admission to membership of the Union, a member shall be bound by this Constitution, the Rules of the Union, the General Standing Orders and resolutions and decisions of the organs of the Union. (4) Any subscription or other donations paid to the Union shall not be refundable except where such subscription or donation was made KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 24 | P A G E

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in error and the final decision to that effect shall be made by the National Executive Board. 70.The right to join and to remain as a member of a trade union is protected under Article 41(2)(c) of the Constitution and Section 4 of the Labour Relations Act. Under Article 41(2)(c) of the Constitution of Kenya, every worker has the right to form, join or participate in the activities and programmes of a trade union, while Section 4(1) to join or leave a trade union. L of the Labour Relations Act similarly gives every employee the right IN A 71.While the right is subject to limitations permitted under Article 24 of G the Constitution, such limitation must be prescribed by law and must O RI be reasonable, justifiable and proportionate in a democratic and progressive society. 72.The constitution of the union, while providing for eligibility for membership as set out above, does not provide for expulsion of a member from membership on account of non-payment of union dues. 73.The Court takes the view that membership of a trade union is distinct from holding office in a trade union. Section 4(2) of the Labour Relations Act confers upon every member of a trade union the right, subject to the constitution of the union, to participate in its activities, participate in the election of its officials and representatives, and to KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 25 | P A G E

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stand for election or seek appointment as an officer, official or a trade union representative. It follows that membership is a prerequisite to, but does not in itself confer, the status of a union official. A member only assumes the status of an official upon being duly elected or appointed in accordance with the law and the constitution of the Union. 74.Therefore, on account of the membership of the Petitioner being L distinct from his position as an official, this court associates itself IN A with the decision Ongaya J (as he then was) in Musyoka v Kenya Union of Post-Primary Teachers Machakos Branch & 10 Others; O RI G Registrar of Trade Unions (Interested Party) [2025] KEELRC 2949 (KLR). The learned Judge expressed that – ‘14. There is no legislation limiting membership to a trade union through expulsion under the enabling parent statute, the Labour Relations Act, 2007. Instead, the Act in section 4 provides as follows, “4. (1) Every employee has the right to – (a) participate in forming a trade union of federation of trade unions; b) join a trade union; or, (c) leave a trade union. 75.The court finds and holds that there was no provision in the constitution of the union for the expulsion of the Petitioner from membership and thus the decision communicated by the 1st KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 26 | P A G E

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Respondent terminating his membership was in violation of his right to associate and to form, join, and participate in affairs of the trade union as guaranteed in Articles 41, 36, & 24 of the Constitution of Kenya. 76.On the Petitioner's expulsion/removal as an official, the provisions of Article 12 of the constitution od the union apply. This part provides that – L Article 12: Discipline of National Officials IN A (1) A National Official may be suspended from office as may be determined by the National Executive Board – O RI G (i) when he/she fails within thirty days of demand in writing by the Secretary-General to pay Union subscriptions, which are, more than thirteen weeks in arrears; [Emphasis added] (ii) when he/she is guilty of gross contravention of any of the provisions of this Constitution and the Rules and the General Standing Orders of the Union; (iii) has contravened the provisions of the Financial Manual of the Union thereby occasioning loss to the Union; (iv) persistently acts in a manner generally detrimental to the interests of the Union. (2) The next Advisory Council shall deliberate on the matter and decide whether to uphold the suspension, remove the official from KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 27 | P A G E

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office or rescind the decision of the National Executive Board of suspending the official. (3) No official shall be suspended or expelled unless he/she has been given an opportunity to state his/her case personally or in writing at a meeting of the National Executive Board, about which he/she has received notice of not less than fourteen days in writing. Such notice shall include details of the allegations with which the member is being charged. L (4) An official who has appeared before the Advisory Council in IN A accordance with this Article, if he/she is dissatisfied with the decision G of the Advisory Council, has the right to restate his/her case at the O RI Delegates Conference, where the matter will be deliberated. (5) An officer appearing before the Advisory Council in terms of this Article, shall be entitled to call witnesses in support of his/her case. (6) Any decision taken by the Advisory Council to uphold suspension or expulsion of a member or official shall remain effective until reversed by a next National Delegates Conference. 77.The 1st Respondent asserted in his replying affidavit in response to the petition (Para 37, 38, 39, 40, & 41), that the National Executive Board convened a meeting and a notice of the meeting was sent to the Petitioner, but the Petitioner allegedly snubbed the meeting and failed to attend. He further claimed the meeting that the Petitioner KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 28 | P A G E

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was given an opportunity to respond to the allegations, but allegedly failed to respond. The 1st Respondent insisted that the Respondents substantially complied with the disciplinary process before the Petitioner was expelled from the membership of the Union. The court notes that notices annexed to the 1st Respondent’s affidavit were a letter dated 31st August 2023 (suspension); a letter dated 27th October 2023 (invite to attend meeting and, a response to the invite to a hearing from the Petitioner dated 3rd November 2023 (invite to a L hearing). All these letters do not relate to non-payment of union dues, IN A but the same are on account of previous accusations against the G Petitioner. The Respondents did not adduce evidence that the O RI Petitioner had been issued with a notice as contemplated under Article 12(1) of the constitution of the union (30-days) on account of non-payment of union dues as a union official. 78.The Respondents expelled the Petitioner from the membership of the Union in contravention of the constitution of the union and failed to accord the Petitioner the required notice to make good his arrears. The Petitioner made good the arrears and the Respondents deliberately avoided commenting on that fact. The Court thus finds and holds that the decision terminating the terms of the petitioner as an official of the Union was procedurally flawed and that decision was unfair, unreasonable, and unlawful. KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 29 | P A G E

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79.While the court notes that elections have been undertaken and new officials taken office, it is not defeated for the court to find that the petitioner’s removal from the membership Union and as an official was flawed. VIII. WITHHELD ALLOWANCES 80.The Petitioner sought release of withheld allowances from August 2023 of Kshs412,000/= on account of the office he held as the secretary of Kakamega Branch; allowances for attending the National IN A L Delegates Conference on 2nd September 2024, and for attending Advisory Council meeting on 11th April 2025. The court has found G that the Petitioner’s expulsion from his position as an official was O RI flawed, unprocedural, unjust, and unlawful. 81.There was no response or denial from the Respondents to this prayer and the same was thus uncontroverted. The Petitioner was thus entitled to the withheld allowances of Kshs412,000/= as prayed and the Court hereby awards and orders payment of the same. IX. ORDERS 82.Flowing from all the above, the court makes the following orders – a). The petition dated 18th August 2025 is successful in the following terms – i) A declaration be and is hereby issued that the decision by the Respondents’ National Executive Board(NEB)in the KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 30 | P A G E

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meeting of 21st February 2025 violated the Petitioner’s fundamental rights to fair administrative action, access to justice, and fair hearing, against Articles 10, 25, 47 & 50 of the Constitution of Kenya and Section 4 of the Fair Administrative Actions Act. ii) A declaration be and is hereby issued that the process culminating in the issuance of the impugned letter dated 28th February 2025 was illegal, marred with irregularities, L unprocedural and the same is null and void. IN A iii) A declaration be and is hereby issued that the expulsion of G the Petitioner from the Union failed to meet the criteria O RI under Article 24 of the Constitution of Kenya and the same amounted to unreasonable and unjustified limitation of his right to fair labour practices protected under Article 41 of the Constitution of Kenya. iv) A permanent order of injunction be and is hereby issued against the Respondents restraining the Respondents from terminating the membership of Petitioner with the 2nd Respondent and or interfering with his democratic right of participation in the affairs of the Union, including taking part in elections of union officials at all levels without following the law and respecting his constitutional and KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT 31 | P A G E

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statutory rights. v) The Respondents are hereby ordered to pay to the Petitioner a sum of Kshs412,000/= as withheld allowances with interest at Court rates from the date of this judgment till payment in full. vi) The Respondents shall jointly and or severally pay to the Petitioner costs of the petition. DELIVERED VIRTUALLY, DATED, AND SIGNED AT G IN A L KAKAMEGA THIS 1ST DAY OF OCTOBER, 2026. O RI …………………… DAVID NDERITU KAK ELRC CONST. PET NO. E011 OF 2025 JUDGEMENT JUDGE 32 | P A G E

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