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ELRCPartially AllowedPetition E144 of 2026

Musau & 4 others v Misori & 17 others

Employment and Labour Relations Court of Kenya
24 September 2026
5,809 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to suspend KUPPET's 2026 election results but sent key eligibility questions to a larger bench.

What this practically means

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Executive summary

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The five petitioners, members of KUPPET, moved the Employment and Labour Relations Court at Nairobi by notice of motion dated 30 April 2026 seeking interim conservatory and injunctive relief restraining implementation of the results of KUPPET's national elections of 18 April 2026, plus certification under Article 165(4) of the Constitution and referral to the Chief Justice for empanelment of a three-judge bench. They alleged failure to convene branch general assemblies to appoint delegates, admission of ineligible candidates, disregard of subsisting orders in the Mbugua and Miano petitions restraining the Kiambu and Laikipia branches, and irregular delegate lists from the Kisii and Nyeri branches. The respondents, including KUPPET, the Registrar of Trade Unions and the Commissioner of Labour, countered that the elections complied with the Constitution, the LRA and the union constitution; that the Registrar had considered complaints, found them unsubstantiated and registered the elected officials; and that the claims were speculative and unsupported by particulars. M Mbarũ, J declined the interim relief: the elections had been held and registered, the orders as couched were ambiguous, contested facts required evidence at the hearing, and the public interest in the operations of a nationwide union outweighed interim intervention even on a prima facie case. The court held that grievances arising after registration should be addressed to the Registrar under the LRA, and that the 2025 Practice Directions do not supersede the LRA. However, the court certified that the petition raises substantial questions of law on eligibility for union office under section 33(a) of the LRA, warranting referral to the Chief Justice for a full bench, subject to the petitioners first addressing matters raised in the ruling. Costs were in the cause, with mention on 15 October 2026.

Questions the Court framed

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

  1. 1.Whether the interim conservatory order suspending implementation and enforcement of the 18 April 2026 election results should issue
  2. 2.Whether an interim injunction should issue restraining the 1st to 8th respondents from acting upon the election results
  3. 3.Whether the matter raises a substantial question of law under Article 165(4) warranting certification and referral to the Chief Justice for empanelment of a three-judge bench
  4. 4.Whether the respondents' replying affidavit filed out of time under Rule 7 of the 2025 Practice Directions should be struck out

Key legal issues

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01

Whether interim conservatory and injunctive relief should issue pending the petition

Holding

Refused. The elections were held and registered; the union is nationwide and stoppage would harm all members; public interest overrides even a prima facie case at the interlocutory stage.

Reasoning

The court applied the conservatory-order principles in Board of Management of Uhuru Secondary School and Munya v Kithinji, including public interest and proportionality. It found the orders sought effectively permanent in nature, ambiguous as couched, and premature on affidavit evidence where contested facts require proof at the hearing.

p. 10
02

Whether the matter raises a substantial question of law under Article 165(4)

Holding

Yes. The court certified the matter as raising substantial questions of law on the interpretation of section 33(a) of the LRA vis-à-vis the Constitution and the union constitution, warranting referral to the Chief Justice for empanelment of a full bench.

Reasoning

The court found the questions on eligibility of persons who have ceased employment in the sector, resigned TSC members engaged in politics, and retired persons to hold union office novel and transcending the parties' interests, requiring an expanded panel under Article 165(4) read with section 21(2) of the ELRC Act.

p. 11
03

Whether the replying affidavit should be expunged for late filing under Rule 7 of the 2025 Practice Directions

Holding

The objection cannot hold; the affidavit stands.

Reasoning

The court held the Practice Directions give context to the LRA and do not supersede substantive law; the LRA is not ousted. The petitioners, as initiators of the suit, cannot be prejudiced by the respondents' choice to file a petition rather than follow the section 30 LRA procedure.

p. 10
04

Proper avenue for grievances after registration of elected union officials

Holding

Grievances arising after registration of election results should be addressed to the Registrar of Trade Unions, after which LRA procedures apply.

Reasoning

The court noted the Registrar had considered complaints, found them unsubstantiated, and registered the elected officials. Section 30 of the LRA applies if the Registrar considers or fails to consider grievances; the Practice Directions do not supersede the LRA.

p. 10

Legal principles established

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  • Upon registration of trade union election results by the Registrar of Trade Unions, grievances arising therefrom should first be addressed to the Registrar's office under the LRA
  • The Trade Union Elections Disputes Practice Directions do not supersede the substantive law; the LRA is not ousted by them
  • Where a petition challenges the application of a union constitution with contested facts, the court should hear the main petition on the merits rather than grant interim relief on affidavits alone

Court orders

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  1. 1.Interim orders sought (conservatory order and interim injunction) shall not be issued
  2. 2.Certification that the matter raises substantial questions of law warranting reference to the Chief Justice under Article 165(4) of the Constitution
  3. 3.Before referral, the petitioners shall address the matters addressed in the ruling
  4. 4.Costs in the cause
  5. 5.Mention for further directions on 15 October 2026

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 23, 41, 47, 59, 159 and 165 of the Constitution; Employment and Labour Relations (Trade Union Elections Disputes) Procedure and Practice Directions, 2025

Relief refused

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Conservatory order suspending implementation and enforcement of the 18 April 2026 election results

Elections already held and registered by the Registrar of Trade Unions; public interest in the union's nationwide operations outweighs interim relief

p. 9

Interim injunction restraining the 1st to 8th respondents from acting upon the election results

Order as couched is ambiguous as to the 8th respondent; contested facts require evidence at the hearing; public interest dictates against interim stoppage

p. 9

Expungement of the respondents' replying affidavit for late filing

The allegation of late filing in violation of Rule 7 of the Practice Directions cannot hold

p. 10

Costs

The costs will be in the cause.

Quotable passages

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

Interim orders sought shall not be issued.
p. 12Refusal of interim conservatory and injunctive relief
Save in the circumstances, I hereby certify that this matter raises substantial questions of law warranting reference to the Chief Justice, as required under Article 165(4) of the Constitution.
p. 12Certification and referral to Chief Justice
The costs will be in the cause.
p. 12Costs order
even where there is a prima facie case, the overriding public interest dictates that granting conservatory orders in the interim, as sought in this case, will not aid justice.
p. 10Public interest in trade union governance
The Employment and Labour Relations (Trade Union Elections Disputes) Procedures & Practice Directions, 2025 do not supersede the substantive law.
p. 10Relationship of Practice Directions to the LRA
If the Court grants the injunction sought herein, based solely on the affidavits, the parties will be denied a fair chance to be heard.
p. 10Fair hearing on contested facts

Issues in the judgment

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minor

Cited case cited inconsistently as Milimani and Nairobi

minor

Munya citation given inconsistently as [2014] KESC 30 and [2014] eKLR; same number as 2026 KESC 50

minor

Prayer (d) refers to elections of 'the 8th respondent' (an individual) rather than the union

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, "Musau & 4 others v Misori & 17 others", Case Analysis (2026). Petition E144 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2552/eng@2026-09-24

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