Musau & 4 others v Misori & 17 others
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the interim conservatory order suspending implementation and enforcement of the 18 April 2026 election results should issue
- 2.Whether an interim injunction should issue restraining the 1st to 8th respondents from acting upon the election results
- 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.Whether the respondents' replying affidavit filed out of time under Rule 7 of the 2025 Practice Directions should be struck out
Key legal issues
#Whether interim conservatory and injunctive relief should issue pending the petition
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.
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.
Whether the matter raises a substantial question of law under Article 165(4)
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.
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.
Whether the replying affidavit should be expunged for late filing under Rule 7 of the 2025 Practice Directions
The objection cannot hold; the affidavit stands.
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.
Proper avenue for grievances after registration of elected union officials
Grievances arising after registration of election results should be addressed to the Registrar of Trade Unions, after which LRA procedures apply.
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.
Legal principles established
#- 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
#- 1.Interim orders sought (conservatory order and interim injunction) shall not be issued
- 2.Certification that the matter raises substantial questions of law warranting reference to the Chief Justice under Article 165(4) of the Constitution
- 3.Before referral, the petitioners shall address the matters addressed in the ruling
- 4.Costs in the cause
- 5.Mention for further directions on 15 October 2026
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
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
Costs
The costs will be in the cause.
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.
Interim orders sought shall not be issued.
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.
The costs will be in the cause.
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.
The Employment and Labour Relations (Trade Union Elections Disputes) Procedures & Practice Directions, 2025 do not supersede the substantive law.
If the Court grants the injunction sought herein, based solely on the affidavits, the parties will be denied a fair chance to be heard.
Issues in the judgment
#Cited case cited inconsistently as Milimani and Nairobi
Munya citation given inconsistently as [2014] KESC 30 and [2014] eKLR; same number as 2026 KESC 50
Prayer (d) refers to elections of 'the 8th respondent' (an individual) rather than the union
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.