Robert Miano & another v Kenya Union of Post Primary Education Teachers Union & another

ROBERT MIANO……………………………………………………………………………………………..1S T PETITIONER OKISAI OMUNYIN MOFFAT………………………………...……………………………. ……….....2ND PETITIONER -VERSUSKENYA UNION OF POST PRIMARY EDUCATION TEACHERS UNION…….. …………………………………………………………..1ST RESPONDENT REGISTRAR OF TRADE UNIONS………………..………………….……………………….. …..2ND RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Petitioners were members of the 1st Respondent who had previously served as elected officials of their union branches (Laikipia County and Busia County, respectively). They were unsuccessful in the last elections for their branches. They alleged that the 1st Respondent, pursuant to its constitution, acted unfairly by restricting members' participation in the national union elections to delegates comprising elected union branch J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 2 | 25

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officials. The Petitioners commenced this suit by an Amended Petition dated 6th May 2026, seeking:a) A Declaration that Articles 8.2, 13.0(a)(iii), and 14.0 of the KUPPET Constitution are unconstitutional, and null and void to the extent that they violate the right to fair labour practices guaranteed under Article 41 of the Constitution and Section 34(2) of the Labour Relations Act. 2007. b) A declaration that the requirement under Articles 8.2 and 13.0(a)(iii) of the KUPPET Constitution that only "delegates as defined under Article 8.2 of the union constitution" are eligible to contest for national union positions is unlawful, unreasonable, discriminatory, and of no legal effect. c) An order of Certiorari quashing the letters dated 19 th March, 2026 issued by KUPPET rejecting the Petitioners' applications to contest for the positions of Deputy Secretary General and National Chairman, respectively. d) An order of Certiorari quashing the 1st Respondent's National Elections held on 18th April 2026, including all results, appointments, and declarations arising therefrom, on the grounds that the said elections were conducted in contravention of Article 41 of the Constitution of Kenya and Section 34(2) of the Labour Relations Act, 2007, and were founded upon the unlawful eligibility requirements under Articles 8.2, 13.0(a)(iii), and 14.0 of the KUPPET Constitution, which J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 3 | 25

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unconstitutionally excluded the Petitioners and other eligible members from participating as candidates for the positions of Deputy Secretary General and National Chairman respectively. e) An order of Mandamus compelling the 1 st Respondent to convene and conduct fresh National Elections for the positions of Deputy Secretary General and National Chairman within such period as this Honourable Court may direct, and that the said fresh elections be conducted in strict compliance with Article 41 of the Constitution of Kenya and Section 34(2) of the Labour Relations Act, 2007, and further that the Petitioners and all other members who meet the constitutionally compliant eligibility criteria be unconditionally cleared and allowed to participate as candidates in the said fresh elections, without subjection to the unlawful restrictions contained in Articles 8.2, 13.0(a)(iii), and 14.0 of the KUPPET Constitution. f) A declaration that the nomination fees prescribed under Article 14 of the KUPPET Constitution are unlawful, unconstitutional, excessive, and discriminatory against non-incumbent candidates vying for the 1st Respondent's national seats. g) An order of Prohibition restraining the 1 st Respondent, its officials, servants, agents, or any person acting on its behalf from invoking, applying, or enforcing Articles 8.2, 13.0(a)(iii), and 14.0 of the KUPPET Constitution, or any other eligibility criteria of similar effect in the conduct of any fresh National Elections ordered by this Honourable Court. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 4 | 25

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h) General damages for the infringement of the Petitioners' constitutionally protected rights to fair labour practices, equality, and freedom from discrimination, and for the inconvenience caused by KUPPET's unlawful actions. i) An order do hereby issue compelling the Respondents to comply with the relevant constitutional provisions and/or statutory law. j) An order that the costs of this Petition be borne by the 1st Respondent. k) Interest on VII & IX above at court rates. l) Any other relief that this Honourable Court may deem just and expedient in the circumstances. 2. The Petition was filed alongside the Supporting Affidavit of the 1 st Petitioner sworn on 6th May 2026, and the documents attached thereto. 3. In response to the said Petition, the 1st Respondent filed a Replying Affidavit sworn by AKELLO M.T. MISORI on 9th June 2026. The Petitioners’ case in summary 4. The Petitioners case is that they are bona fide members of the 1 st Respondent who served as officials in the Branch Executive Secretary position in the Laikipia and Busia branches respectively for a period of 10 years, prior to the recently held branch elections. The Petitioners take issue J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 5 | 25

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with the conduct of the recently concluded branch elections for the reason that the 1st Respondent engaged in interference with the same in a bid to ensure that only candidates it favoured won the branch elections, with the ultimate goal of controlling who the contestants in the national elections would be. 5. Another complaint of the Petitioners is that the 1 st Respondent issued an addendum notice for a special delegates conference dated 9 th March 2026, rescheduling the National election date from 4 th April 2026 to 18th April 2026, and inviting qualified delegates wishing to contest the national seats to obtain nomination forms from the Secretary General's office and to pay the requisite fee by close of business on 16th March 2026. The Petitioners collected nomination forms to contest for the positions of Deputy Secretary General and National Chairperson respectively on 11th March 2026, and paid nomination fees of Kshs. 300,000 and Kshs. 500,000 respectively to the 1st Respondent. However, despite complying with the given conditions, the Petitioners received letters from the 1st Respondent on 19th March 2026 rejecting their respective applications to participate in the Deputy Secretary General and National Chairman elections respectively. The Petitioners are aggrieved as they were not afforded any meaningful opportunity to be heard, nor were the reasons for the rejection of their applications sufficiently communicated, contrary to their right to fair administrative action under Article 47 of the Constitution. They are also aggrieved as the 1st Respondent allowed incumbents, who are potential competitors, to J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 6 | 25

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participate in the vetting and clearance process of candidates without safeguards to ensure impartiality; and maintained provisions entrenched incumbency and discriminated union elections, that against other candidates in without reasonable justification or compliance with statutory and constitutional safeguards 6. It is averred that during the pendency of this Petition, the 1st Respondent proceeded to conduct its National Elections on 18th April, 2026, thereby compounding the violation of the Petitioners’ rights and rendering the said elections tainted, irregular, and of no legal effect. 7. The Petitioners state that they meet all practical and legal requirements to contest for the 1st Respondent's national office, save for the narrow definition of "delegate" contained in Articles 8 and 13 of the KUPPET Constitution, against which unfairly discriminates non-incumbent candidates such as the Petitioners. They also challenge the imposition of nomination fees under Article 14.0 which are excessive and discriminatory, because non-incumbent candidates such as the Petitioners are required to pay double fees, while incumbents are not. 8. The Petitioners contend that the Respondent, through their actions, violated their Constitutional right to non-discrimination under Article 27of the Constitution; to fair labour practices under Article 41 of the Constitution and J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 7 | 25

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Section 34(2)(a) of the Labour Relations Act; and to fair administrative action under Article 47 of the Constitution. 1st Respondent’s case in brief 9. The 1st Respondent admits that the Petitioners were rejected from vying in its elections, but explains that the 1st Petitioner was rejected from vying in the national elections because he is not a delegate of Laikipia KUPPET Branch and had not paid nomination fees. Similarly, the 2nd Petitioner was rejected from vying in the national elections because he is not a delegate of Busia KUPPET Branch. They aver that ‘delegate’ is defined in Article 8(2) (a) and (b) the 1 st Respondent’s constitution and the Petitioners do not fall within that definition. As such, they were not eligible to vie/participate in the KUPPET National Elections. 10. The 1st Respondent clarifies that the Petitioners vied and lost in their respective branch elections hence were not delegates. They were also not members of the National Executive Board hence were not eligible to vie in the national elections of the 1 st Respondent. The 1st Respondent relies on Article 13(a) of the KUPPET Constitution as registered with the 2 nd Respondent and states that this Article provides the guidelines for Union elections. 11. The 1st Respondent admits that the Petitioners are long serving branch officials of the 1st Respondent, but contends that this does not equate to J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 8 | 25

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being delegates as defined by the 1 st Respondent’s constitution. The 1st Respondent further emphasizes that the Petitioners were given factual and valid grounds as to why their candidature was rejected and the 2nd Petitioner even asked to collect his nomination fees. They aver that there was no bias involved in the vetting and clearance of the candidature of the Petitioners as vetting and clearing of candidates for any of its elections is a clear process entrenched in the constitution of the 1st Respondent which was followed to the letter. It is stated that the Petitioners have not shown any proof of malpractice/misconduct or irregularities or favouritism in nomination of candidates in their respective branch elections. 12. It is averred that all candidates in the National elections of 18th April 2026 paid standard nomination fees stipulated in Article 14 of the 1 st Respondent's constitution, hence the nomination fee regime is not excessive and discriminatory. Notably, no proof is presented by the Petitioners to show different treatment of incumbent and non-incumbent candidates during the national elections of the 1 st Respondent; and neither have they demonstrated any variance between the nomination fees set out in the constitution and any amount they paid. Although the nomination fees of the 1st Respondent were amended as per the 1 st Respondent's constitution, the constitutional amendments are governed by Article 25 of the 1st Respondent's constitution and this approach to court is premature and unwarranted. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 9 | 25

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13. On the claims of illegality of specific Articles in the 1 st Respondent’s constitution, the 1st Respondent states that as elected branch officials for the Laikipia and Busia branches for over ten years during which period they were eligible to vie and vote in the KUPPET National elections, it is absurd to claim illegality on the part of a constitution that they enforced and followed to the letter. 14. The 1st Respondents avers that Article 4 of the Labour Relations Act gives every employee and member of a trade union the right to participate in the lawful activities of their trade union, but such activities must comply with the Union Constitution. They emphasize that the KUPPET Constitution registered with the 2nd Respondent was complied with to the letter. Further, Section 34(1) of the Labour Relations Act gives authority to a trade union to conduct elections in accordance with their registered constitution and the national elections. They insist that the National elections held on 18 th April 2026 were held in accordance with the Union constitution. The 1 st Respondent states that the Petitioners have not demonstrated to the court any exceptional circumstances under which the court can depart from the Constitution of the 1st Respondent. The 1st Respondent’s elections were lawful and were not marred by any irregularities, as such, the same should not be nullified. Similarly, no rights of the Petitioners guaranteed under the Constitution of Kenya have been breached as alleged or at all. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 10 | 25

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DETERMINATION 15. Following directions by the court that it would determine the Petition through written submissions, the Petitioners and 1st Respondent filed their respective submissions. Issues for determination 16. In their submissions dated 22nd May 2026, the Petitioners identified the following issues for determination: i. Whether the 1st Respondent's decision rejecting the Petitioners' applications to contest for the positions of Deputy Secretary General and National Chairman respectively, and consequently excluding them from participation in the KUPPET National Elections, was lawful, fair, reasonable, and in compliance with the Constitution of Kenya, the Labour Relations Act, and the KUPPET Constitution. ii. Whether the interpretation and application of Articles 8.2, 13.0(a) (iii), and 14.0 of the KUPPET Constitution by the 1st Respondent violated or threatened the Petitioners' rights and fundamental freedoms, including the rights to equality and freedom from discrimination, freedom of association, fair labour practices, fair administrative action, and fair hearing as guaranteed under the Constitution. iii. Whether the nomination, vetting, clearance, and election process undertaken by the 1st Respondent satisfied the constitutional J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 11 | 25

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principles of transparency, inclusivity, accountability, democratic governance, and the rule of law, and whether any elections conducted pursuant thereto are valid. iv. Whether the Petitioners are entitled to the reliefs sought in the Petition. 17. C onversely, the 1st Respondent filed submissions dated 3rd July 2026, where they distilled the following issues for determination, namely: i. Whether this Petition is Res judicata. ii. Whether the fundamental rights of the petitioners have been infringed upon. iii. Whether the national elections of the 1st Respondent were free and fair iv. Whether the petitioners are entitled to the reliefs sought. 18. The court having perused the pleadings and submissions was of the considered opinion the issues for determination in the petition were as followsa. Whether the petition is resjudicata b. if in the negative whether the petition has merit. The law J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 12 | 25

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19. Article 41 provides for fair labour practices as follows- ‘41. Labour relations (1)Every person has the right to fair labour practices. (2)Every worker has the right— (a)to fair remuneration; (b)to reasonable working conditions; (c)to form, join or participate in the activities and programmes of a trade union; and d)to go on strike.’’ (emphasis given) 20. Section 34 of the Labour Relations Act provides for election of union officials as follows‘34. Election of officials (1)The election of officials of a trade union, employers’ organisation or federation shall be conducted in accordance with their registered constitutions. (2)The constitution of a trade union, employers’ organisation or federation shall— (a)not contain a provision that discriminates unfairly between incumbents and other candidates in elections; and (b)provide for the election, by secret ballot, of all officials of a trade union at least once every five years J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 13 | 25

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(3)Notice of the election of officials under this section shall be given to the Registrar in the prescribed form within fourteen days of the completion of the election. (4)Disputes arising from, or connected directly or indirectly to, elections held under this section may be referred to the Industrial Court. (5)The Registrar may issue directions to a trade union, employers’ organisation or federation to ensure that elections are conducted in accordance with this section and their respective constitutions.’ 21. The procedure for challenging union elections is set out in the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025, published by the Chief Justice, Hon. Martha Koome, on 1st September 2025. Direction 3 states‘3. (1) These procedure and practice directions shall apply to petitions in respect of trade union elections including for both workers trade unions and employers’ associations duly registered under the Labour Relations Act. (2) A petition about a trade union election dispute is essentially for enforcement of the right to fair labour relations as provided in Article 41 and the other relevant provisions of the Bill of Rights in the Constitution and shall be instituted in accordance with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 14 | 25

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Constitution) Practice and Procedure Rules as provided for in rule 10 of the Employment and Labour Relations Court (Procedure) Rules, 2024.’ Whether the petition is res judicata 22. This issue was raised by the respondent. The petitioner did not submit on the same. The respondent submitted- The instant suit is res judicata because similar issues as herein were heard and determined in Kinyua & another v Kenya Union of Post-Primary Education Teachers (KUPPET) & another [2026] KEELRC 1222 (KLR) and Chelangat & another v Kenya Union of Post Primary Education Teacher, KUPPET & 9 others [2026] KEELRC 925 (KLR) before courts of competent jurisdiction. 8. The res judicata rule and principle are applied under section 7 of the Civil Procedure Act to bar multiplicity and re-litigation of suits over the same subject by the same parties. In John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] KECA 472 (KLR) the court held that: “The doctrine of res judicata has two main dimensions: cause of action res judicata and issue res judicata. Res judicata based on a cause of action, arises where the cause of action in the latter proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. Cause of action res judicata extends to a point which might have been made but was not raised and decided in the earlier proceedings. In such a case, the bar is absolute unless fraud or collusion is alleged. Issue res judicata may arise where a particular issue forming a necessary ingredient J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 15 | 25

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in a cause of action has been litigated and decided, and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, and one of the parties seeks to re-open that issue.” 23. In Independent Electoral and Boundaries Commission v Maina Kiai & 5 others the Court restated the essentials of res judicata as follows:‘a. The suit or issue was directly and substantially in issue in the former suit. b. That former suit was between the same parties or parties under whom they or any of them claim. c. Those parties were litigating under the same title. d. The issue was heard and determined in the former suit. e. The Court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 24. The respondent contended that the instant Petition dated 6th May 2026 by the two Petitioners is grounded on Articles 2, 3, 10, 19, 20, 27, 36 and 41 of the Constitution of Kenya and various articles of the 1st Respondent’s Constitution are challenged on the grounds of exclusionary and in violation of democratic participation, violation of equality and equal protection, disproportionate limitation and being inconsistent with sections 31 and 34 of the Labour Relations Act representation integrity and character of a trade union. The reliefs sought include having the provisions of Articles 8.2., 13(a) (ii) and(iii) and 14 of the 1st Respondent’s constitution declared null and J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 16 | 25

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void, eligibility to contest opened up and fresh elections of the 1st Respondent be held for position of chairman and deputy secretary general. In NYERI ELRC Petition No. E008 of 2026, the Petitioners prayed for a declaration that Article 8.2, 13.0(a) (iii) and 14.0 of the 1st respondent’s constitution are unconstitutional, null and void to the extent that they violate the right to fair labour practices guaranteed under Article 41 of the Constitution and Section 43(2) of the Labour Relations Act. Petition No. E008 of 2026 was heard and determined and a judgment delivered. The Court in Kinyua & another v Kenya Union of Post-Primary Education Teachers (KUPPET) & another [2026] KEELRC 1222 (KLR) found that none of the Petitioners’ prayers had merit and dismissed the suit. The Court stated:‘’51.The petitioners' contestations that the eligibility criteria and payment requirements are discriminatory and unequal have been brought to their attention in advance. The 1st respondent, through its elected leaders, did not amend the union constitution after the call for elections. There was an audit of the constitution, and it has since been registered with the responsible officer, Registrar of Trade Unions. 52.The orders sought by the petitioner cannot suffice. The declarations sought at the gist of the petitioner, thus addressed, the same cannot issue. 53.The petitioners admitted that the 1st respondent’s elections have since been held. Taking into account the cause of action addressed above, the 1st respondents' elected officials now in place have the opportunity to revisit the constitution and invite the members to participate and share their views on the various parts for review, as appropriate. For the elections, the court finds that the J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 17 | 25

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respondents applied the provisions under the union constitution, which is lawful and valid.’’ 25. The matter in dispute in this petition has directly and substantially in issue been dealt with in a former suit between the same parties or between parties under whom they or any of them claim, litigation under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. We urge this court to find that the Petition herein amounts to Res Judicata and strike the same out.’ 26. I perused the replying affidavit and found that the issue of resjudicata was not directly raised. However, res judicata would deny the court having to revisit causes that have been determined with finality, as held in Independent Electoral and Boundaries Commission v Maina Kiai & 5 others as cited by the respondent. I decline to decide the matter on res judicata basis as the issue was not pleaded and further the petitioners were not party to the Kinyua case and the others as cited by the respondent. Whether the petition has merit 27. The petitioners pleaded violation of their constitutional rights from paragraph 54 of the amended petition as follows‘54. By restricting eligibility to contest for national office to "delegates" as defined in Articles 8 and 13 of the KUPPET Constitution, J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 18 | 25

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without providing the Petitioners clear reasons why they were excluded, the Respondent violated the Petitioners' right to fair labour practices guaranteed under Article 41 of the Constitution and Section 34(2)(a) of the Labour Relations Act. 55. By imposing excessive and multiple nomination fees under Article 14 of the KUPPЕТ Constitution, which disproportionately affect nonincumbent candidates, without objective justification, the Respondent violated the Petitioners' right to fair labour practices guaranteed under Article 41 of the Constitution and Section 34(2)(a) of the Labour Relations Act. 56. By rejecting the Petitioners' applications to contest for respective national union offices without first giving them a meaningful opportunity to be heard, make representations, or challenge the eligibility requirements, the Respondent violated the Petitioners' right to fair administrative action under Article 47 of the Constitution. 57. By allowing incumbents, who are potential competitors, to participate in the vetting and clearance process of candidates, without safeguards to ensure impartiality, the Respondent violated the Petitioners' right to fair administrative action under Article 47 of the Constitution and the principle against bias in administrative decisionmaking. 58. By maintaining provisions that entrenched incumbency and discriminated against other candidates in union elections, without reasonable justification or compliance with statutory and J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 19 | 25

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constitutional safeguards, the 1st Respondent violated the Petitioners' right Scanned with CS CamScanner I. to equality and freedom from discrimination under Article 27 of the Constitution and the principles of fair labour practices under Article 41 and Section 34 of the Labour Relations Act. ‘ 28. It is the considered opinion of the court that the crux of the matter lies in the answer to the question- whether or not the petitioners were qualified delegates as per the union constitution to participate in the national elections and, if not qualified, whether the rights under Article 41 were violated. The issue of nomination fees could only arise if the petitioners were delegates as per rule 8.2 of the union constitution. The petitioners admit they were not delegates as per the union constitution. Elections of the union are to be held in strict compliance with section 34 of the Labour Relations Act to wit – ‘34. Election of officials (1)The election of officials of a trade union, employers’ organisation or federation shall be conducted in accordance with their registered constitutions. (2)The constitution of a trade union, employers’ organisation or federation shall— (a)not contain a provision that discriminates unfairly between incumbents and other candidates in elections; and J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 20 | 25

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(b)provide for the election, by secret ballot, of all officials of a trade union at least once every five years (3)Notice of the election of officials under this section shall be given to the Registrar in the prescribed form within fourteen days of the completion of the election. (4)Disputes arising from, or connected directly or indirectly to, elections held under this section may be referred to the Industrial Court. (5)The Registrar may issue directions to a trade union, employers’ organisation or federation to ensure that elections are conducted in accordance with this section and their respective constitutions.’ 29. The petitioners admit that they are not qualified to be delegates, having not been elected under their branch elections, Laikipia County and Busia County, respectively. members of Delegates under the KUPPET Union Article 8.2 the national executive board, members of the governing council, Trustees and delegates for the 47 Rule 8.2 b are national county branches. states the county branches delegates must be bona fide registered officials of the branch(AM1 under replying affidavit by Akello Misori, the Secretary General of KUPPET). 30. The petitioners applied to contest for the positions of deputy secretary general and chairman, respectively, in the KUPPET national elections held on the 18th April 2026 at Kasarani Gymnasium in Nairobi. The petitioners stated that they were informed they were not qualified under Article 8.2 of J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 21 | 25

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the union constitution, having not been elected as branch officials or not being members of the national executive board. The 1 st petitioner's additional reason for the rejection as a candidate was that he had not paid the nomination fee. 31. My reading of the Labour Relations Act, which is the relevant law on the operation of unions, is that the petitioners were aware that the reasons they did not qualify to contest the elections were based on the union constitution. The disqualification was thus in compliance with section 34(1) of the Labour Relations Act ‘34(1)The election of officials of a trade union, employers’ organisation or federation shall be conducted in accordance with their registered constitutions.’ 32. On the issue of nomination fees under Article 14 of the Union Constitution, I find that the Union leadership agreed on the fees in accordance with the Constitution. The petitioners ought to utilise internal mechanisms for redress of the issue of fees. The elections are past, and, as stated in the Kinyua case, members can revisit the issue of nomination fees under the Union structures. 33. I was not persuaded to decide the case on the basis of res judicata, seeing the issue was not pleaded. I, however, agreed with the court's finding in Kinyua & another v Kenya Union of Post-Primary Education Teachers J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 22 | 25

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(KUPPET) & another [2026] KEELRC 1222 (KLR ) and held that none of the Petitioners’ prayers had merit and dismissed the suit. The Court in the Kinyua case stated:‘51.The petitioners' contestations that the eligibility criteria and payment requirements are discriminatory and unequal have been brought to their attention in advance. The 1st respondent, through its elected leaders, did not amend the union constitution after the call for elections. There was an audit of the constitution, and it has since been registered with the responsible officer, Registrar of Trade Unions. 52.The orders sought by the petitioner cannot suffice. The declarations sought at the gist of the petitioner, thus addressed, the same cannot issue. 53.The petitioners admitted that the 1st respondent’s elections have since been held. Taking into account the cause of action addressed above, the 1st respondents' elected officials now in place have the opportunity to revisit the constitution and invite the members to participate and share their views on the various parts for review, as appropriate. For the elections, the court finds that the respondents applied the provisions under the union constitution, which is lawful and valid.’’ I adopt the decision to apply in the instant case as the facts are similar. 34. The role of the court in election disputes of a union is limited to examination of compliance with section 34 of the Labour Relations Act. The court finds that the impugned process complied with the law. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 23 | 25

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35. The court further finds that the union constitution and the Labour Relations Act provide internal mechanisms for redress of the grievance on fairness of the union constitution. Article 25 of the KUPPET constitution provides for the procedure of amending the constitution, being vide a resolution noted and passed by the annual delegates conference or special delegate conference. Proposals for the amendment are to be submitted to the Secretary General 30 days before the delegates' conference. The petitioners are members thus bound by the union constitution. They have not exhausted the forum under Article 25 of the KUPPET Constitution. The matter of whether or not the KUPPET union violates the Constitution of Kenya is premature before the court. Remedies 36. I find no merit in the petition. The claim of discrimination cannot arise, as the petitioners were not treated differently from other members of the union. It was not proved that any members were exempt from the delegate requirement and the nomination fee requirements. I find all the prayers sought in the petition to lack merit. Disposition 37. The petition is dismissed. The petitioners are members of the 1st respondent and have brought this petition to exercise their membership rights. Each party to bear their own costs in the circumstances. J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 24 | 25

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38. The file is marked as closed. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 25 th DAY OF SEPTEMBER, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner: Respondent: J U D G M E N T I N N A I R O B I E L R C P E T . N O . E 0 9 8 O F 2 0 2 6 P a g e 25 | 25

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