Onyango v Opiyo & 5 others
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the application dated 12th March 2026, founded on the Petition, is equally incompetent
- 3.Whether non-compliance with Rule 6(1) deprives the Court of jurisdiction
- 4.Whether striking out the Petition is the appropriate remedy, or whether leave to amend should be granted
- 5.Who should bear the costs of the Preliminary Objection
Key legal issues
#Compliance with Rule 6(1) particulars as a condition of competence
The Petition was grossly incompetent for want of the Rule 6(1) particulars and was struck out.
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.
Whether non-compliance with Rule 6(1) ousts jurisdiction
Yes - failure to move the Court as required by statute means the jurisdiction of the Court is not properly invoked.
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.
Whether striking out was appropriate despite the power to allow amendment
Striking out was the appropriate course; the amendment latitude in Rule 16(2) was not exercised.
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.
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.The Petition is struck out as grossly incompetent
- 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.
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
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.
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.
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.
Issues in the judgment
#Court states no Rule 6(1) particulars appear despite Petitioner identifying them in the Petition and supporting affidavit.
Mwicigi cited with two different citations ([2016] eKLR by 3rd Respondent; [2016] KESC 2 (KLR) by Petitioner).
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.