Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutPetition E024 of 2026

Onyango v Opiyo & 5 others

Employment and Labour Relations Court
24 September 2026
1,496 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court struck out a union election petition for missing mandatory details, so anyone challenging union elections must strictly follow the required format.

What this practically means

#

Executive summary

#
This ruling by the Employment and Labour Relations Court at Kisumu (Nzioki Wa Makau, J) determined a preliminary objection by the 3rd Respondent, Kenya Universities Staff Union, against a petition challenging the branch elections for the position of Branch Secretary, KUSU Maseno University Branch, held on 6th March 2026. The 3rd Respondent contended that the Petition and the application dated 12th March 2026 were 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, 2025, which requires a petition to state the parties' particulars, the date of the election, the results, the date of declaration of results, the grounds, and the relief sought. It argued that non-compliance, the word 'shall' being mandatory, deprived the Court of jurisdiction, relying on Mwicigi, King'ola v Wambugu and Nwankwo v Yar'Adua. The Petitioner countered that the Petition's citation, paragraph 2 and the supporting affidavit disclosed the election date, the secretary-elect and the vote tallies, and urged that Rule 16(2) permitted amendment, citing Salat v IEBC on substantive justice. The Court held that section 34 of the Labour Relations Act governs and that Rule 6(1) particulars are mandatory; finding the required particulars absent, it declared the Petition grossly incompetent and struck it out. Notably, it ordered each party to bear their own costs, departing from the 3rd Respondent's costs request. The ruling is terse and does not engage with the Petitioner's claim that the particulars were in fact disclosed, an apparent tension in the reasoning.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether 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, 2025
  2. 2.Whether the application dated 12th March 2026, founded on the Petition, is equally incompetent
  3. 3.Whether non-compliance with Rule 6(1) deprives the Court of jurisdiction
  4. 4.Whether striking out the Petition is the appropriate remedy, or whether leave to amend should be granted
  5. 5.Who should bear the costs of the Preliminary Objection

Key legal issues

#
01

Compliance with Rule 6(1) particulars as a condition of competence

Holding

The Petition was grossly incompetent for want of the Rule 6(1) particulars and was struck out.

Reasoning

Section 34 of the Labour Relations Act is the guiding provision for trade union election petitions. Rule 6(1) prescribes mandatory particulars including election date, results, date of declaration, grounds and relief. The Court found the Petition lacked these particulars, so jurisdiction was not properly invoked and, following precedent, the Petition had to be struck out rather than proceed to merit hearing.

p. 4
02

Whether non-compliance with Rule 6(1) ousts jurisdiction

Holding

Yes - failure to move the Court as required by statute means the jurisdiction of the Court is not properly invoked.

Reasoning

The 3rd Respondent argued that 'shall' in Rule 6(1) makes compliance mandatory and peremptory, citing Black's Law Dictionary and authorities on the word 'shall'. The Court accepted that a trade union member aggrieved by election outcomes must move the Court as required by statute; otherwise jurisdiction is not properly invoked. This adopts the mandatory-compliance reading of the Rule.

p. 4
03

Whether striking out was appropriate despite the power to allow amendment

Holding

Striking out was the appropriate course; the amendment latitude in Rule 16(2) was not exercised.

Reasoning

The Petitioner relied on Rule 16(2), which gives the Court latitude to grant leave to amend, and on Salat v IEBC, urging that election disputes should not be determined by rigid application of procedure. The Court nonetheless held the Petition grossly incompetent and struck it out, applying the Mwicigi line that pleadings lacking mandatory procedural ingredients may be declared incompetent.

p. 4

Legal principles established

#
  • A trade union election petition must comply with the mandatory particulars prescribed by Rule 6(1) of the Trade Union Election Disputes Procedure and Practice Directions, failing which the Court's jurisdiction is not properly invoked and the petition is incompetent.

Court orders

#
  1. 1.The Petition is struck out as grossly incompetent
  2. 2.No order as to costs - each party to bear their own costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 34(4) of the Labour Relations Act; Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025

Relief refused

#

Petitioner's request that the Preliminary Objection be dismissed with costs to pave way for hearing on merit

The Court found the Petition did not comply with Rule 6(1) and was grossly incompetent

p. 4

Costs

Each party will bear their own costs; no order as to costs.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

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.
p. 4Jurisdiction - mandatory compliance with statutory petition requirements
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.
p. 4Disposition - striking out and costs
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.
p. 2Procedure and substance - Mwicigi principle (as cited)

Issues in the judgment

#
material

Court states no Rule 6(1) particulars appear despite Petitioner identifying them in the Petition and supporting affidavit.

minor

Mwicigi cited with two different citations ([2016] eKLR by 3rd Respondent; [2016] KESC 2 (KLR) by Petitioner).

minor

Affidavit vote tally names 'Philip Onyango' though the Petitioner is Charles Vincent Onyango.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Onyango v Opiyo & 5 others", Case Analysis (2026). Petition E024 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2545/eng@2026-09-24

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