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ELRCDismissedELRC Petition No. E049 of 2025 (with Petition No. E048 of 2025)· [2025] KEELRC 2144 (KLR)

Moffat & 14 others v Nthurima & 3 others (Petition E019 & E048 of 2025 (Consolidated)) [2025] KEELRC 2144 (KLR)

Employment and Labour Relations Court
21 July 2025
HWHellen Wasilwa
2,680 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court dismissed KUPPET's attempt to throw out a challenge to its constitution amendment, ruling that disputed facts cannot be resolved through a preliminary objection.

What this practically means

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Executive summary

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The 1st and 2nd Respondents filed a Notice of Preliminary Objection dated 19th February 2025 seeking dismissal of the Petitioners' petition challenging the amendment and gazettement of the KUPPET constitution, arguing failure to exhaust remedies under Section 27(4) of the Labour Relations Act, constitutional avoidance, sub judice with Nairobi ELRC Petition E044 of 2024, concealment of material facts, and abuse of process. A similar preliminary objection dated 5th May 2025 was raised in Petition E048 of 2025. The Petitioners, officials of the KUPPET Maralal Branch, opposed the objection, contending that the amendment process relied on forged ADC minutes and was procedurally illegal; that such contested factual matters cannot be resolved on a preliminary objection under the Mukhisa Biscuit test; that the Registrar had already registered the impugned constitution, rendering the objection process moot; and that constitutional violations of Articles 41, 47 and 50 justified direct court intervention. The Respondents maintained that the petition was filed prematurely, before the expiry of the 21-day statutory objection period, and duplicated the pending Nairobi petition. The court held that the issues raised - forgery of minutes and the regularity of the amendment process - were factual and contested, falling outside the purview of a pure point of law, and declined to find merit in the objection. The preliminary objection was dismissed, the parties were directed to proceed with the main petition, and costs were awarded in the petition.

Key legal issues

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Whether the preliminary objection met the Mukisa Biscuit threshold of a pure point of law

Holding

The objection failed because it depended on contested facts regarding the union minutes, attendance and the amendment process

Reasoning

The court found that the issues leading to the amendment of the union constitution - the contested minutes and attendance - were disputed factual matters raised by the petitioners even before the Registrar issued any notice. Since ascertaining whether forgery occurred requires investigation, the objection was not a pure point of law and could not be determined summarily.

p. 6

Legal principles established

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  • A preliminary objection must be a pure point of law; where facts must be ascertained, it fails

Court orders

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  1. 1.The preliminary objection dated 19th February 2025 (and the objection dated 5th May 2025 in Petition E048 of 2025) is dismissed
  2. 2.Parties directed to proceed with the main petition
  3. 3.Costs in the petition

Authorities

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Legislation

  • Labour Relations ActSection 27(4)
  • Labour Relations ActSection 27(3)
  • Employment and Labour Relations ActSection 12
  • Fair Administrative Action ActSection 9(2) and (3)
  • Civil Procedure ActSection 6
  • Constitution of Kenya, 2010Articles 22, 23, 41, 47, 50, 159(2)(c), 165(3)

Cases cited (5)

  • Mukhisa Biscuit Manufacturing Ltd v West End Distribution Ltd
    (1969) EA 697
  • Anarita Karimi Njeru v Republic
    [1979] KEHC 30 (KLR)
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] KECA 445 (KLR)
  • Kadukha & 3 Others v Kenya National Private Security Workers Union (KNSPSWU) & 2 Others; Yongo & 11 Others (Interested Parties)
    [2023] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    2020 eKLR
Jurisdiction invoked
Articles 22, 23 and 165(3) of the Constitution; Section 12 of the Employment and Labour Relations Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Moffat & 14 others v Nthurima & 3 others (Petition E019 & E048 of 2025 (Consolidated)) [2025] KEELRC 2144 (KLR)", Case Analysis (2025). ELRC Petition No. E049 of 2025 (with Petition No. E048 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2144/eng@2025-07-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.