Musau & 4 others v Misori & 17 others

LAWRENCE MWANGI KIRAGU ............................................. 14TH RESPONDENT KENYA UNION OF POST PRIMARY EDUCATION TEACHERS (KUPPET) ..................................................................................... 15TH RESPONDENT REGISTRAR OF TRADE UNIONS ......................................... 16TH RESPONDENT COMMISSIONER OF LABOUR ............................................... 17TH RESPONDENT ATTORNEY GENERAL ............................................................. 18TH RESPONDENT RULING 1. The petitioners led an application dated 30 April 2026 under the provisions of articles 23, 41, 47, 59, 159 and 165 of the Constitution in the matter of the Employment and Labour Relations (Trade Union Elections Disputes) Procedure and Practice Directions and seeking orders: a) Spent. b) Pending the hearing of the application and petition, the court be pleased to issue a conservatory order suspending the implementation and/or enforcement of the results of the elections held on 18 April 2026. c) Spent. d) Pending the hearing and determination of the petition, an interim order of injunction restraining the 1st to 8th respondents, whether by themselves, their agents, servants, employees or any persons acting under their authority, from recognising, implementing, giving eect to, or acting upon the results of the National Elections of the 8th respondent held on 18 April 2026. e) Spent. f) Spent. g) Spent. h) Spent. i) Spent. j) Pending the hearing and determination of the petition, the court be pleased to certify that this matter raises a substantial question of law within the meaning of Article 165(4) of the Constitution. k) Pending the hearing and determination of the petition, the court be pleased to refer this matter to the Hon. Chief Justice for empanelment of three (3) judges to hear and determine the petition. 2. The application is supported by the 4th petitioner, William Lengoyiap, who avers that he is the former executive secretary of Samburu Branch of KUPPET and was actively involved in the branch administration and union electoral processes. 3. The petition herein raises serious and substantial questions of constitutional and legal interpretation including: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2552/eng@2026-09-24 2

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a) The interpretation of Article 260 of the Constitution on the denition of a public ocer. b) The eligibility of trade union ocials to hold and contest public employment or elective oce. c) The legality and constitutionality of the elections held on 18 April 2026. d) The eect of conicting judicial decisions on the same legal question. 4. Thus, Lengoyiap avers that the issues raised in the petition are novel, complex, and of great public importance, aecting not only the parties but also the broader administration of trade unions, public service employment and electoral governance. 5. Judicial inconsistency in prior decisions creates legal uncertainty that requires authoritative resolution by a three-judge bench. In the interests of justice and constitutional clarity, the matter should be certied under Article 165(4) of the Constitution and referred to the Hon. Chief Justice for empanelment of a bench of three judges. 6. Lengoyiap avers that the national elections conducted by the 15th respondent on 18 April 2026 were seriously awed due to irregularities, violations of constitutional provisions and breaches of statutory requirements. A signicant failure was the refusal to convene branch general assemblies (BGAs) for the purpose of appointing delegates to the national elections as required under Article 8.2.0(b)(ii) of the 8th Respondent's Constitution. Under these provisions, delegates to the national election should have been duly appointed at BGAs. However, this step was not followed, leading to a lack of legitimate delegates and directly undermining the integrity of the electoral process. 7. The failure to conduct eligibility checks allowed ineligible candidates to participate. Under the 8th respondent’s constitution, only members of the National Executive Board (NEB) and branch executive committees are eligible to contest for national oce. However, candidates who were no longer serving in these roles were allowed to participate in the elections, thereby violating the rules governing eligibility and legitimacy. 8. Lengoyiap avers that, in addition to constitutional violations, the respondents disregarded valid court orders in John Thiuru Mbugua & Teresia v KUPPET (E025 of 2026, Milimani) and Robert Miano v KUPPET (E006 of 2026, Nyeri). The courts had restrained the branches in Kiambu and Laikipia from participating in the elections. Despite these legal injunctions, the 8th Respondent, through its ocials, unlawfully allowed delegates from these branches to participate in the national elections. This not only introduced illegitimate delegates but also distorted the electoral outcomes, rendering the elections invalid. 9. The failure to convene the National Governing Council, lack of proper vetting of candidates, and the inclusion of ineligible delegates undermined the democratic principles. The aected branches of Kiambu and Laikipia were disenfranchised and deprived of the right to participate in a fair electoral process. 10. Lengoyiap avers that unless the interim orders sought, pending the hearing of the petition, are issued, irreparable loss and harm will result. The election results should not be allowed to stand as they were obtained through a process that violated constitutional safeguards and judicial orders. Unlawful elections are invalid, and the only remedy is to stop their eects and prevent any actions based on the illegitimate results. Article 8.2.0(b)(ii) of the KUPPET constitution allows delegates to be appointed at the branch general assembly, with one delegate for every 100 members, and over 300 bona de members registered to attend the ADC. Such provisions are mandatory. This procedure serves as the primary mechanism by which members exercise their democratic right to elect national representatives. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2552/eng@2026-09-24 3

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The failure to convene the branch assemblies thus undermined the national elections held on 18 April 2026. The delegates who participated lacked lawful authority from their members, particularly in the Kiambu and Laikipia branches, where court orders stopped the elections. 11. Lengoyiap avers that he is aware that the Kisii and Nyeri branches irregularly submitted lists of purported delegates using unknown and undisclosed criteria. No general assemblies were convened from these branches. The illegitimate list was used to allow participation in the national elections. This disregarded court orders issued in John Thiuru Mbugua & Teresia v KUPPET (E025 of 2026, Nairobi) and Robert Miano v KUPPET (E006 of 2026, Nyeri). Responses 12. In reply, the 1st to 15th respondents led the Replying Adavit of Akelo Misori, the 1st respondent, who avers that he is the secretary general of the 15th respondent. He avers that the petition is speculative, bad in law and an abuse of court process. The 15th respondent held elections on 18 April 2026 in compliance with the Constitution, the LRA and its registered constitution. Ocers from the Ministry of Labour, Oce of the Labour Commissioner, supervised the elections, as required under the LRA and the Trade Union Elections Practices Directions. 13. The petitioners failed to disclose to the Court that the Registrar of Trade Unions, the 16th respondent, has since considered complaints touching on the elections, found the allegations unsubstantiated, and registered the duly elected ocials. 14. The petitioners have failed to demonstrate any constitutional violations. The claims are general and lack particulars. No minutes, registers, attendance records, or probative material establish that any branch failed to hold meetings or nominate delegates as alleged. 15. Misori avers that the allegations that 1,508 imposter delegates participated in the elections are unsupported by evidence. The branches, polling stations, or anyone else have not identied these alleged imposter voters. The allegations made are misleading and should be rejected. 16. The participation of incumbent ocials in the electoral process as candidates does not amount to an illegality, conict of interest or constitutional violation. The union constitution provides a lawful governance framework regulating elections. All aspirants were subjected to the same constitutional and procedural requirements under the union constitution without discrimination. The petitioners have not demonstrated any instance where a candidate was accorded preferential treatment contrary to the Constitution or the LRA. To allege that the NGC was not involved in the electoral process is false and misleading. 17. The union organs, including the NEB and NGC, undertook their lawful mandates. The allegations regarding the eligibility of the 1st to 8th respondents are unfounded and reect a wrong interpretation of sections 2, 31, and 33 of the LRA. Under section 31(1)(a) of the LRA, ocials of a trade union may be persons who are or have been engaged or employed in the sector for which the trade union is registered. The petitioners have deliberately ignored the provisions of the LRA and further section 31(4)(a) that permit the SG of a trade union to be a person not engaged or employed in the relevant sector. 18. Misori avers that the 15 respondent members have since exercised their democratic right and elected leaders of their choice. The petitioners cannot casualise such mandate without evidence. To grant the orders sought will prejudice the respondents. 19. In reply, the 16th respondent led the replying adavit of Ann Kanake, the Ag. Registrar of Trade Unions, who avers that the oce's mandate is to register and regulate trade unions. She avers that the petitioners seek, among other orders, a conservatory order barring the oce from registering the 16th https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2552/eng@2026-09-24 4

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respondent's elected ocials. However, the conservatory orders sought have been overtaken by events, as the national elections conducted on 18 April 2026 have already been registered. The prayers sought are not enforceable. 20. Kanake avers that the petitioners' allegations of electoral irregularities are without evidence and are false and misleading. The oce of the 16th and 17th respondent conducted the elections peacefully and in accordance with the union constitution and the LRA. The labour ocers presided over the elections as required under section 35(3) of the LRA and have since led returns that have not been challenged. 21. The 16th respondent's actions are therefore lawful, and the court has no reason to interfere. 22. The members' registers are maintained by the respective trade unions pursuant to the constitution. The 16th respondent is not a custodian. The petition thus is frivolous and intended to undermine the democratic will of the union members as lawfully expressed through the elections. 23. The petitioners submitted that they approached the Court in the rm belief that it is the guardian of the Constitution and the ultimate protector of the rule of law, constitutionalism, and democratic governance. They have exhausted every lawful avenue available to them and, guided by the jurisprudence of the Supreme Court of Kenya in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others (2017). The Court held that an election is not an event but a process. 24. The Respondents disregarded the Constitution, the law, and the principles of electoral integrity, which undermines the very foundation of constitutional governance, democracy, and the rule of law. If the Court declines to grant the reliefs sought, a great injustice will be visited upon the petitioners. The Petitioners seek orders to preserve the subject matter of the dispute and restrain implementation of the impugned election results pending the hearing and determination of the Petition. The Petitioners seek conservatory and injunctive reliefs to suspend and restrain the recognition, implementation, or enforcement of the National Elections of the 15th Respondent conducted on 18 April 2026, because the said elections were conducted in violation of the Constitution, statutory requirements, and subsisting court orders. 25. The Petitioners further seek disclosure and production of key electoral materials, including the ocial register of delegates and voters, documents relating to the nomination, accreditation, and appointment of delegates, and compliance records from the Respondents and third parties, including Safaricom Limited in respect of specied M-Pesa statements. 26. Additionally, the Petitioners seek certication that the matter raises a substantial question of law under Article 165(4) of the Constitution and referral to the Chief Justice for empanelment of a bench of three Judges to hear and determine the Petition. 27. The petitioners submitted that they have established a prima facie case with a likelihood of success to warrant the grant of conservatory orders. In Mwenje & 18 Others v Cabinet Secretary for Defence & 2 Others [2025] KEHC 14491 (KLR), the Court held that an arguable prima facie case discloses triable and arguable issues requiring a response or rebuttal, and whose likelihood of success is neither remote nor fanciful, but ows naturally from the petitioners' pleadings and supporting material. The impugned elections were conducted in blatant violation of the Constitution of the 15th Respondent, the LRA, and subsisting court orders. In particular, the 15th Respondent, acting through the 1st Respondent, wilfully and deliberately proceeded with the impugned elections in deance of subsisting court orders issued in John Thiuru Mbugua & Teresia v KUPPET (ELRC Petition No. E025 of 2026, Milimani) and Robert Miano v KUPPET (ELRC Petition No. E006 of 2026, Nyeri). Despite those https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2552/eng@2026-09-24 5

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binding orders, delegates from branches expressly restrained by the Court were permitted to participate in the electoral process, thereby undermining the legality, fairness, and integrity of the elections. 28. The deliberate nature of the Respondents' non-compliance is evident from the fact that, by a letter dated 27 April 2026, the 15th Respondent formally notied it of the existence of the subsisting court orders restraining certain branches from participating in the National Elections, thereby placing the 15th Respondent on full notice of its obligation to comply with those orders. 29. The Petitioners have further demonstrated that the appointment of delegates was undertaken in contravention of the 15th Respondent's Constitution. Article 8.2.0(b)(ii) allows one delegate for every 100 members over and above the 300 bona de members registered in the branch. The Nyeri and Kisii Branches adopted a selection process in place of appointments made through duly convened BGAs. The criteria employed for the selection and appointment of delegates were neither sanctioned by nor consistent with the Constitution of the 15th Respondent, rendering the purported appointments unconstitutional and unlawful. These issues merit full interrogation at the hearing of the Petition. 30. The Petitioners submitted that the substratum of the Petition will be rendered nugatory and the Petitioners will suer irreparable harm if conservatory orders are not granted. The irreparable harm in this context lies not merely in any individual prejudice suered by the Petitioners, but in the erosion of constitutional safeguards, the normalisation of illegality, and the entrenchment of a fait accompli that would render subsequent judicial oversight ineective. Preserving the integrity of constitutional processes therefore requires maintaining the status quo to ensure the Court's jurisdiction is not undermined and that any nal determination remains meaningful and eective. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 & 2 Others [2014] KESC 30 (KLR), the court held that conservatory orders in public law are not founded on the traditional private law concept of irreparable harm. Rather, they are intended to facilitate the orderly functioning of public institutions, preserve constitutional values, and uphold the Court's adjudicatory authority in the public interest. 31. The continued occupation of oce by ocials whose election is challenged as unlawful would occasion harm that an award of damages cannot reverse. The damage to the integrity of the electoral process, the authority of the Court, and the lawful governance of the 15th Respondent would already have occurred. The Petitioners have therefore demonstrated that they will suer irreparable harm unless the conservatory orders sought are granted pending the hearing and determination of the Petition. 32. On the balance of convenience and the public interest in granting conservatory orders, the petitioners submitted that the public interest in the present circumstances lies in ensuring that institutional processes are conducted in accordance with the Constitution. Allowing ocials whose election is under serious legal challenge to continue exercising authority pending determination of the Petition risks undermining public condence in lawful governance, weakening respect for judicial authority, and rendering the eventual judgment ineective. In Law Society of Kenya v Attorney General & Another [2020] KEHC 1702 (KLR), the Court held that no public interest is greater than upholding the Constitution and the law. The constitutional principles at stake in this petition transparency, accountability, parliamentary control over public nance, public participation, and intergenerational equity are not mere procedural formalities. They are the foundational pillars upon which Kenya's constitutional democracy rests. Development, however desirable, cannot be pursued at the expense of these foundational values. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2552/eng@2026-09-24 6

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33. The petitioners submitted that the Court should order the preservation and production of electoral records, registers, and related documents. The Court's power to order preservation, disclosure, and production of relevant evidence is anchored in its constitutional mandate under Article 165(3) of the Constitution, which grants the Court jurisdiction to safeguard constitutional rights and ensure the ends of justice are met. This power is further reinforced by Article 35, which guarantees the right of access to information, and Article 159, which obligates the Court to administer justice without undue regard to technicalities. 34. The Court should issue orders directing the preservation and production of all electoral records, including the following: a. register of delegates, b. minutes of Branch General Assemblies, c. accreditation documents, and d. related communications are central to the determination of the legality of the impugned elections held on 18 April 2026. 35. The power to order preservation, disclosure, and production of relevant evidence is anchored in the court's constitutional mandate under Article 165(3) of the Constitution. Process. The orders sought for production and preservation of electoral records in the present Application are not only justied but are consistent with binding constitutional principles, including transparency, accountability, and the right to a fair hearing. 36. The petitioners submitted that the court should certify that the Petition raises substantial questions of law within the meaning of Article 165(4) of the Constitution warranting referral to the Chief Justice for empanelment of a bench of three Judges. This Petition raises novel, weighty, and substantial questions of constitutional and statutory interpretation that transcend the parties' interests and have far-reaching implications for the governance of trade unions, the exercise of labour rights, and the administration of justice. The Petition also falls within the ambit of Article 165(4)(b) and (d) of the Constitution, as it raises questions concerning the enforcement and interpretation of constitutional rights, as well as the interpretation and application of constitutional and statutory provisions relating to public oce, labour rights, and trade union governance. In Robert Nyabuto Nyabwocha v Ronald Kiprotich Tonui & Another [2016] eKLR and Patrick Njuguna & 7 Others v Wilson Sossion & 3 Others [2019] eKLR, the law is uncertain regarding the compatibility of holding a State oce concurrently with an elective position within a trade union. The questions to be addressed are: a. Whether, in light of section 33(a) of the Labour Relations Act, a person who has ceased to be employed in the sector for which a trade union is registered remains eligible to retain voting membership and participate in union elections or hold an elective position within the trade union. b. Whether a resigned member from the Teachers Service Commission (TSC), followed by his engagement in partisan political activities and subsequent election campaigns for the position of Member of Parliament, aects the eligibility to retain membership, voting rights, or hold elective oce within the trade union. c. Whether a person who has retired or ceased employment in a unionisable capacity remains eligible to retain membership, voting rights, or elective oce within a trade union. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2552/eng@2026-09-24 7

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37. The applicable principles for certication of a matter as raising a substantial question of law were set out in Okiya Omtatah Okoiti & another v Anne Waiguru & 3 others, Civil Appeal No. 4 of 2015 [2017] KECA 679 (KLR) (formerly [2017] eKLR), which referenced the case of Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone [2010] KECA 96 (KLR). The principles to be satised are that it involves a substantial point of law; that a determination of it aects the parties and transcends the circumstances of the particular case; and that it has a signicant bearing on the public interest. The applicant must demonstrate uncertainty in the law. The matter falls within the terms of Article 165(3) (b) or (d) of the Constitution. The applicant has identied and concisely set out the specic substantial question or questions of law to which they attribute the matter for which certication is sought. 38. Therefore, applying these principles to the present Petition, the issues raised transcend the parties' immediate interests and concern broader questions aecting the governance of trade unions, the exercise of constitutional labour rights, and the interpretation of statutory provisions governing eligibility for union leadership. 39. The petitioners also submitted that the Replying Adavit led and relied upon by the 15th to 17th Respondents is not properly on record and ought to be expunged for failing to comply with the applicable procedural requirements. The Replying Adavit failed to comply with the mandatory timelines prescribed under the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025. The Directions provide that upon service of a Petition, a Respondent has a 15-day right of reply. The prescribed timeline ensures expeditious determination of trade union election disputes and guarantees procedural fairness to all parties. 40. In this case, the Petitioner served the 15th to 17th Respondents with the Petition on 7 May 2026. However, the respondents led their response on 14 July 2026, well outside the mandatory period. The Rule is mandatory and leaves no room for discretion, particularly where the provision prescribes a specic timeline within which a party must undertake a procedural step. The replying adavit by the respondents is irregular, in violation of Rule 7 of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025, and ought to be struck out and expunged from the Court record together with any documents led in support thereof. 41. The Court of Appeal in Haji & 4 Others v Ali & 3 Others, Civil Appeal No. 340 of 2018, adopted a strict interpretation of the word “shall” in statutory provisions, holding that it is ordinarily peremptory, not directory, unless the context clearly dictates otherwise. The Court relied on the persuasive authority of Sutter v Scheepers 1932 AD 165, which held that “shall” imports a mandatory obligation. 42. The 1st and 15th respondents submitted that the petitioners have not satised the constitutional threshold for the grant of conservatory orders, as held in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR. The court emphasised that conservatory orders are public law remedies intended to facilitate ordered constitutional governance and are granted only where an applicant establishes a prima facie constitutional case, demonstrates real prejudice, satises the principles of proportionality and shows that public interest favours intervention. Conservatory orders are not merely granted because an applicant has an arguable case. 43. In Mbaabu & another v Kenya National Union of Teachers & another [2026] KEELRC 516 (KLR), the court held that constitutional remedies must be proportionate and should not unnecessarily interrupt lawful governance before the court has taken evidence. Where contested facts require proof, the court should take evidence before making a determination. 44. The respondents submitted that the orders sought are permanent in nature and should not be issued at the interlocutory stage. The orders sought seek to prohibit duly elected ocials from taking https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2552/eng@2026-09-24 8

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oce. Stopping the 15th respondent ocials from undertaking their constitutional duties before a determination of the petition will ground operations. Granting substantive reliefs in the interim will not foster justice and fair labour practices. The application should be dismissed with costs. Determination 45. The petitioners are seeking a conservatory order suspending the implementation and enforcement of the results of the elections held on 18 April 2026. The elections have since been held, and the 16th respondent registered them. It will not foster justice to issue a conservatory order on this basis. 46. The petitioners also seek an interim order of injunction restraining the 1st to 8th Respondents from recognising, implementing, giving eect to, or acting upon the results of the National Elections of the 8th respondent held on 18 April 2026. 47. These orders are reiterated under prayers (c ) and (d) of the Notice of Motion dated 30 April 2026. The petitioners seek the following: Pending the hearing and determination of the petition, an interim order of injunction restraining the 1st to 8th respondents, whether by themselves, their agents, servants, employees or any persons acting under their authority, from recognising, implementing, giving eect to, or acting upon the results of the National Elections of the 8th respondent held on 18 April 2026. The 8th respondent in this case is Paul Maingi. 48. In the petition, the 8th respondent is not specically dened as someone who can be solely restrained from implementing the election results of 18 April 2026. 49. If this was done in error, there is no amendment or clarication. Issuing the order(s) as couched would create ambiguity. 50. The principles for the issuance of a conservatory order are well enumerated in Board of Management of Uhuru Secondary School v City County Director of Education and 2 Others [2015] eKLR. The applicant must demonstrate the following: An arguable prima facie case with a likelihood of success, and that, in the absence of the conservatory orders, he is likely to suer prejudice. The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specic right or freedom in the Bill of Rights. Thirdly, the Court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. Whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order. 51. This position is armed in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, S.C. Application No 5 of 2014[2014] eKLR, where the court held: “ Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to private-party issues such as “the prospects of irreparable harm” occurring during the pendency of a case, or a “high probability of success” in the Applicant’s case for orders of stay. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2552/eng@2026-09-24 9

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52. In Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR), the Supreme Court of Kenya emphasized that the power to grant conservatory orders is discretionary. However, such discretion must be exercised in accordance with the correct principles, including the rule of law and the principles of Constitutionalism. 53. In this case, having considered the principles outlined above, the petitioners' submissions, it is necessary to hear the main petition on the merits. The 15th respondent is a nationwide trade union representing the interests of many members. Stoppage of operations by injuncting the elected ocials on 18 April 2026 would have a huge negative impact on all the members, including the petitioners. Therefore, 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. 54. Fundamentally, the petitioners challenge the application of the 15th respondent Constitution. The case of the Kisii and Nyeri branches is given. Particulars of the elections carried out in these branches, visà-vis the 15th respondent's national elections held on 18 April 2026, are necessary. If the Court grants the injunction sought herein, based solely on the adavits, the parties will be denied a fair chance to be heard. The main petition must be heard on the merits. The petitioners will have a chance to urge their case and the issue(s) arising from the Kisii, Nyeri, or Samburu branches to justify this petition. 55. The deponent in support of the application and petition is William Lengoyiap. He is a member of the Samburu Branch. There are no particulars of any electoral malpractices from the Samburu Branch or the Kisii and Nyeri branches. It will serve justice to hear the petition and how the BGAs were held leading to the elections on 18 April 2026. Indeed, Lengoyiap admitted in his Adavit that there is John Thiuru Mbugua & Teresia v KUPPET Petition E025 of 2026 (Nairobi) and Robert Miano v KUPPET Petition E006 of 2026 (Nyeri). However, the written submissions provide no update on how far the matters have progressed. To avoid conicting orders and directions, it will be necessary to address the underlying BGAs, NEB in Samburu, Kisii, Nyeri and this petition. 56. At the core of the instant application is the election of the 15th respondent held on 18 April 2026. It is admitted that the 16th respondent has since registered the elected union ocials pursuant to the LRA. 57. Regarding the registration of the duly elected union ocials by the 16th respondent, under the LRA, upon the trade union elections, this is followed by registration. Upon such registration, any grievance arising therefrom should be addressed to the oce of the 16th respondent. Once this route is invoked, the LRA motions apply. 58. If the 16th respondent considers any grievances, or fails to do so, section 30 of the LRA applies. The Employment and Labour Relations (Trade Union Elections Disputes) Procedures & Practice Directions, 2025 do not supersede the substantive law. The petition, weighed against the LRA, and the motions already applied for by the petitioners are legally awed. 59. The allegation that the respondents led their replying adavit out of time and in violation of Rule 7 of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025 cannot hold. 60. The option to le a petition, rather than follow the procedure under section 30 of the LRA, cannot be visited against the respondents. As the initiator of the suit, the petitioners bear liability in this regard. 61. Indeed, section 2 of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025 gives context to the LRA. This is the foundation of the practice directions. The LRA is not ousted. Its provisions remain in force. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2552/eng@2026-09-24 10

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62. Solely relying on the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025, does not aid the petitioners’ case. Pursuant to section 34(4) of the LRA, failing to consider the entirety of section 30 of the Act will not foster the rule of law or justice in addressing trade union elections, including the matters urged in the instant petition. 63. The petitioners have urged the court to apply Article 165(4) of the Constitution and refer the petition to the Chief Justice for empanelment of a bench of three Judges. The rationale is that This Petition raises novel, weighty, and substantial questions of constitutional and statutory interpretation that transcend the parties' interests and have far-reaching implications for the governance of trade unions, the exercise of labour rights, and the administration of justice. The Petition also falls within the ambit of Article 165(4)(b) and (d) of the Constitution, as it raises questions concerning the enforcement and interpretation of constitutional rights, as well as the interpretation and application of constitutional and statutory provisions relating to public oce, labour rights, and trade union governance. 64. The petitioners have set out the key questions to be addressed by a full bench once constituted. The questions to be addressed are: a) Whether, in light of section 33(a) of the Labour Relations Act, a person who has ceased to be employed in the sector for which a trade union is registered remains eligible to retain voting membership and participate in union elections or hold an elective position within the trade union. b) Whether a resigned member from the Teachers Service Commission (TSC), followed by his engagement in partisan political activities and subsequent election campaigns for the position of Member of Parliament, aects the eligibility to retain membership, voting rights, or hold elective oce within the trade union. c) Whether a person who has retired or ceased employment in a unionisable capacity remains eligible to retain membership, voting rights, or elective oce within a trade union. 65. Indeed, the petitioners have distinguished various cases where the above-cited questions have arisen with dierent judgments. As a court of record, each judgment is independently reviewed; this will foster justice and the rule of law within trade unions by addressing these questions before a full bench. 66. Interpreting section 33(a) of the LRA vis-à-vis the Constitution and the 15th Respondent's Constitution is necessary. This calls for an expanded panel of more than one Judge, as envisaged under Article 165(4) of the Constitution read together with Section 21(2) of the Employment and Labour Relations Court Act. Given the unique circumstances of this case, I view the matter as ripe for the Chief Justice to empanel a full bench. The important questions of law outlined above warrant that an enlarged bench deal with the petition. 67. The orders sought are well founded. Empanelling a full bench is necessary. However, the petitioners shall address the entirety of the ruling before referring the petition to the Chief Justice for empanelment of a full bench. 68. At the close of the submissions, the petitioners urged the court to consider the time within which to determine the petition. 69. In this regard, section 4(3) of the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025, allows the court up to 180 days from the date of ling the petition to hear and determine it. Accordingly, the application dated 30 April 2026 analysed; https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2552/eng@2026-09-24 11

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a) Interim orders sought shall not be issued. b) 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. However, before referral, the petitioners shall address the matters addressed in the ruling. c) The costs will be in the cause. Accordingly, mention for further directions on 15 October 2026. DELIVERED IN OPEN COURT THIS 24TH DAY OF SEPTEMBER 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi …………… and ………… https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2552/eng@2026-09-24 12

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