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ELRCPartially AllowedPetition No. E011 of 2025 (KAK ELRC Const. Pet. No. E011 of 2025)

Benard Otieno v Tom Mboya Odege, Union of Kenya Civil Servants & Registrar of Trade Unions (Interested Party)

Employment & Labour Relations Court of Kenya
1 October 2026
7,035 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a civil servants' union unlawfully expelled a member over unpaid dues, restoring his membership and awarding him Kshs412,000.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Kakamega allowed a constitutional petition by Benard Otieno, formerly Branch Secretary of the Kakamega County Branch of the Union of Kenya Civil Servants, challenging the termination of his union membership and office by letter dated 28th February 2025, said to follow a National Executive Board decision of 21st February 2025 on account of non-payment of union dues. He alleged denial of notice and hearing, unlawful process, and non-payment of allowances, seeking declarations, an injunction, Kshs412,000 in withheld allowances and costs. The respondents, through the Secretary General Tom Mboya Odege, maintained that the process followed the union constitution, that an opportunity to be heard was offered but declined, and that the petition was premature for failure to exhaust internal remedies. The court held the petition was not premature: internal remedies were futile because the petitioner questioned the legality of the entire disciplinary process, his request for review went unanswered, and access to the Advisory Council was obstructed. The union constitution, the court found, provides no expulsion from membership for non-payment of dues; membership is distinct from holding office. Termination of membership therefore violated Articles 41, 36 and 24 of the Constitution. As an official, the petitioner was entitled under Article 12 to a thirty-day written demand and fourteen days' notice of hearing, which the respondents did not prove; the removal from office was procedurally flawed, unfair, unreasonable and unlawful. The claim for Kshs412,000 in withheld allowances went uncontroverted and was awarded with interest at court rates. The court declared the NEB decision and the termination process unconstitutional, null and void, issued a permanent injunction protecting the petitioner's membership and participation in union elections, and awarded the allowances and costs to the petitioner.

Questions the Court framed

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

  1. 1.Whether the petition is premature?
  2. 2.Whether the procedure for the expulsion of the Petitioner from the union as a member and official was procedurally and substantively fair?
  3. 3.Whether the Petitioner is entitled to the reliefs sought?
  4. 4.Costs.

Key legal issues

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01

Whether the petition was premature for failure to exhaust the union's internal dispute-resolution mechanisms.

Holding

Not premature. Internal remedies were futile: the petitioner's request for review went unanswered, access to the Advisory Council was said to be obstructed, and the legality of the entire process was questioned.

Reasoning

The petitioner wrote to the Advisory Council on 19th March 2025 seeking review of the suspension and termination; the letter was received on behalf of the Union the next day. The respondents, while insisting he had not appealed, never told the court what response was given to that request. The 1st Respondent, secretary of the relevant organs, was said to have blocked access. The court reasoned the internal procedure could not be fairly invoked and a challenge to the legality of the entire process fell outside internal admissibility.

p. 22
02

Whether the union constitution permitted expulsion of the Petitioner from membership for non-payment of dues.

Holding

No. The union constitution provides no expulsion from membership on account of arrears; the termination of membership violated Articles 41, 36 and 24 of the Constitution.

Reasoning

Article 4 of the union constitution addresses eligibility and payment of subscriptions but contains no ground authorising expulsion from membership for arrears. The right to join and remain a member is protected by Article 41(2)(c) of the Constitution and Section 4 of the Labour Relations Act; any limitation must be prescribed by law and be reasonable, justifiable and proportionate under Article 24. The court associated itself with Ongaya J's decision in Musyoka v KUPPET Machakos Branch.

p. 25
03

Whether the expulsion of the Petitioner as an official complied with Article 12 of the union constitution.

Holding

No. The 30-day written demand for arrears and the 14-day hearing notice were not proved; the removal from office was procedurally flawed, unfair, unreasonable and unlawful.

Reasoning

Article 12(1)(i) permitted suspension of an official for arrears only after thirty days' written demand by the Secretary-General, and Article 12(3) required notice of not less than fourteen days of the meeting, with details of the allegations. The notices the respondents annexed - the suspension letter of 31st August 2023, the invitation of 27th October 2023 and the petitioner's reply of 3rd November 2023 - related to prior misconduct allegations, not non-payment of dues. No minutes of the 21st February 2025 NEB resolution were produced; blanket denials did not establish substantial compliance.

p. 29
04

Whether membership of a trade union is distinct from holding office in it.

Holding

Yes. Membership is a prerequisite to, but does not in itself confer, the status of a union official; different rules govern expulsion from membership and removal from office.

Reasoning

Section 4(2) of the Labour Relations Act confers on members rights to participate in union activities, elect officials and stand for office. The court held that membership is a prerequisite to office but official status is acquired only upon due election or appointment. The distinction mattered: the union constitution provided no expulsion ground from membership for arrears, while removal from office required the Article 12 procedure, which was not followed.

p. 26
05

Whether the Petitioner was entitled to the withheld allowances of Kshs412,000/=.

Holding

Yes. The claim went uncontroverted and the full sum was awarded as prayed, with interest at court rates.

Reasoning

The petitioner claimed monthly branch-secretary allowances of Kshs7,000 and Kshs8,000 unpaid from August 2023, plus Kshs24,000 for attending the National Delegates Conference on 2nd September 2024 and Kshs24,000 for the Advisory Council on 11th April 2025, totalling Kshs412,000. His letter of 20th February 2025 to the Secretary General requesting payment was ignored. The respondents filed no response or denial to this head of claim; the court treated it as uncontroverted and awarded the sum as prayed.

p. 30

Legal principles established

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  • A trade union constitution that makes no provision for expulsion from membership for non-payment of dues cannot sustain such an expulsion; terminating membership on that basis violates Articles 41, 36 and 24 of the Constitution.
  • Membership of a trade union is legally distinct from holding office in it; membership is a prerequisite to office but does not itself confer official status.
  • Exhaustion of internal dispute-resolution mechanisms may be excused where the remedies are futile, access is obstructed, and the legality of the entire disciplinary process is itself in question.
  • Any limitation of the right to join and remain a member of a trade union must be prescribed by law and be reasonable, justifiable and proportionate under Article 24 of the Constitution.
  • Disciplinary removal of a union official for arrears requires proof of the 30-day written demand and 14-day hearing notice prescribed by the union constitution; blanket denials without minutes or notices amount to no compliance.

Court orders

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  1. 1.A declaration that the decision by the Respondents' National Executive Board (NEB) in the meeting of 21st February 2025 violated the Petitioner's fundamental rights to fair administrative action, access to justice, and fair hearing, against Articles 10, 25, 47 & 50 of the Constitution of Kenya and Section 4 of the Fair Administrative Actions Act.
  2. 2.A declaration that the process culminating in the issuance of the impugned letter dated 28th February 2025 was illegal, marred with irregularities, unprocedural and the same is null and void.
  3. 3.A declaration that the expulsion of the Petitioner from the Union failed to meet the criteria under Article 24 of the Constitution of Kenya and amounted to unreasonable and unjustified limitation of his right to fair labour practices protected under Article 41 of the Constitution of Kenya.
  4. 4.A permanent order of injunction restraining the Respondents from terminating the Petitioner's membership with the 2nd Respondent or interfering with his democratic right of participation in the affairs of the Union, including taking part in elections of union officials at all levels, without following the law and respecting his constitutional and statutory rights.
  5. 5.The Respondents ordered to pay the Petitioner Kshs412,000/= as withheld allowances with interest at court rates from the date of judgment till payment in full.
  6. 6.The Respondents to pay the Petitioner's costs of the petition jointly and/or severally.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 162(2)(a) and 165 of the Constitution of Kenya 2010 (Employment and Labour Relations Court jurisdiction) read with Article 23 (enforcement of the Bill of Rights), invoked under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

Relief refused

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General compensation for the contravention of fundamental rights (prayer (d))

Not separately awarded; monetary relief was confined to the uncontroverted withheld allowances, with declarations of violation granted instead.

Accrued (pre-judgment) interest on the withheld allowances

Interest was awarded only from the date of judgment, not from the earlier accrual period sought in prayer (e).

p. 32

Costs

The Respondents shall jointly and or severally pay to the Petitioner costs of the petition.

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.

A declaration be and is hereby issued that the process culminating in the issuance of the impugned letter dated 28th February 2025 was illegal, marred with irregularities, unprocedural and the same is null and void.
p. 30Final orders - nullity of the termination of membership and office
The Respondents are hereby ordered to pay to the Petitioner a sum of Kshs412,000/= as withheld allowances with interest at Court rates from the date of this judgment till payment in full.
p. 32Final orders - withheld allowances and interest
A permanent order of injunction be and is hereby issued against the Respondents restraining the Respondents from terminating the membership of Petitioner with the 2nd Respondent and or interfering with his democratic right of participation in the affairs of the Union
p. 31Final orders - permanent injunction protecting membership and union democracy
The Respondents shall jointly and or severally pay to the Petitioner costs of the petition.
p. 32Final orders - costs
The Court therefore finds and holds that the Petitioner correctly moved to file the petition in court and the same was not premature.
p. 22Exhaustion of internal remedies excused
The constitution of the union, while providing for eligibility for membership as set out above, does not provide for expulsion of a member from membership on account of non-payment of union dues.
p. 25No expulsion from membership for non-payment of dues
The Court thus finds and holds that the decision terminating the terms of the petitioner as an official of the Union was procedurally flawed and that decision was unfair, unreasonable, and unlawful.
p. 29Removal from office unfair and unlawful

Issues in the judgment

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minor

Cause title cites the Labour Relations Act, 2012, but the passage quoted from Musyoka refers to the Labour Relations Act, 2007 - the same statute is given different years.

minor

The suspension letter is dated 23rd August 2023 in the submissions as recorded, but 31st August 2023 in the 1st Respondent's account and the court's recital.

minor

Apparent typographical error in the termination letter reference - 'Article 4(20(a)(b)' for the subscription provisions of Article 4(2)(a)(b).

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, "Benard Otieno v Tom Mboya Odege, Union of Kenya Civil Servants & Registrar of Trade Unions (Interested Party)", Case Analysis (2026). Petition No. E011 of 2025 (KAK ELRC Const. Pet. No. E011 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2754/eng@2026-10-01

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