1. Vide the Claimant’s Claim dated 2nd March, 2021 filed through Mokono Ondieki & Company Advocates, the Claimant herein sought orders as follows:
a. A declaration that the procedure adopted by the union in amending the constitution without notice to its members was unlawful, illegal and unprocedural.
b. A declaration that when dealing with the claimant, and amending the union constitution without notice the respondents acted without the law and with impunity.
c. The union be ordered to use its old constitution for the purpose of carrying the 2021 union elections.
d. Costs of the claim.
2. The Claim was filed together with an application under certificate of urgency seeking the following orders:
a. THAT this Application be certified urgent and be heard ex-parte at the first instance, its service be dispensed with for the purposes of granting the prayers sought herein.
b. THAT pending the Inter-partes hearing and determination of this application, the Honourable Court be pleased to issue and hereby issues an interim order suspending the implementation of section 31A of the Employment Act, 2007 as amended by Section 86 of the Finance Act, 2018.
c. THAT pending the Inter-partes hearing and determination of tils application, the Honourable Court be pleased to issue and hereby issues an interim order suspending the execution, of the union constitution and impending union national elections of 3rd April, 2021 pending the hearing and determination of this Application.
d. THAT the costs of this application be provided for.
3. In response to the Application the Respondents filed a replying affidavit of MAURICE AKELO MISORI who described himself as the 1st Respondent and the Secretary General of the 2nd Respondent Union. In the affidavit sworn on 22nd March, 2021, Mr. Misori deposed inter alia, that he was conversant with all the facts relating to the amendments being challenged in the suit and that the said amendments were passed at the union’s Annual Delegates Conference held on 16th December, 2016 at Red Hall Redcross Hall, Malindi, after causing the draft thereof to be advertised by the Registrar of trade unions in the Kenya Gazette and two local daily newspapers of national circulation. That the constitution as amended became operational on 20th November, 2017 as no objections were raised to the amendments in 21 days as required by law.
4. Mr. Misori further deposed that the said constitution as amended was the one used for the 2018 union elections and therefore no issue could be raised when the union was preparing for 2021 National elections 4 years later. The Respondents were represented by Mariara & Company Advocates.
5. According to the court record, on 30th March, 2021 parties appeared before my brother Abuodha J and informed the court that they had arrived at a consent in the matter and the same had been filed in court. Mr. Omwenga appeared holding brief for Mr. Mokono for the Claimant while Mr. Mariaria appeared for the Respondents.
6. The court accordingly recorded a consent as follows: “The consent note dated 24/3/2021 and filed on 26/3/2021 is hereby adopted as the order of the court with the consequence that the matter is marked as fully settled in terms thereof.”
7. A copy of the consent filed in court is on the court record.
8. The court record further reads
Court
On the issue whether the scheduled elections on 3rd April, 2021 should proceed virtually the court directs that a formal application be made in that regard and considered on merits.”
9. The application now before me for determination dated 19th March, 2025 is filed by Polo & Company Advocates on behalf of the Claimant and seeks the following orders:
a) THAT this Application be certified urgent and be heard ex-parte at the first instance, its service be dispensed with for the purposes of granting the prayers sought herein.
b) THAT the Honourable Court issues an order declaring consent dated 24th March, 2021 and adopted as an order of the court on 30th March, 202l as unlawful and the resultant court orders be struck out and set aside on account of fraud, collusion and misrepresentation.
c) THAT the Honourable Court issues an order that the Ruling dated 31st March, 2021 is null and void.
d) THAT upon the grant of prayers no. 2 and 3 above the Honourable Court issues a declaration that the 2nd Respondent's elections held in 2021 were invalid for failure to adhere to the provisions of Articles 8.1.0(e), 8.2.0(a), 8.2.0(b), 8.2.0(e), 13.0.(a) (i) of the 2nd Respondent's Constitution and Article 34(2)(b) of the Labour Relations Act, 2007.
e) THAT this Honourable Court be pleased to grant any other order it may deem fit to grant.
f) THAT Cost of this Application be provided for.
10. The application is premised on the grounds on its face and the affidavit of the Claimant in which she deposes as follows:
a) THAT the consent dated 24th March, 2021 and adopted by this Honourable Court on 30th March, 2021 is marred with illegality.
b) THAT the impugned consent was entered into without instruction from the Applicant and without the Applicant's knowledge and approval.
c) THAT the impugned consent purported to confirm the alleged validity of the 2nd Respondents 2017 constitution and stated that the elections that were to be held on 3rd April, 2021 should be held in accordance with the 2nd Respondents 2017 constitution.
d) THAT further, Counsel on record acting without instructions from the Applicant proceeded to concede to the Respondents' application dated 15th March, 2021 and the Court vide its ruling dated 30th March, 2021 directed that the national elections proceed virtually.
e) THAT the import of the above misrepresentation to the Court is that the Honourable Court allowed virtual voting instead of secret ballot contrary to the 2nd Respondent’s constitution and the provisions of the Labour Relation Act,2007.
f) THAT as such the alleged National elections conducted in 2021 were conducted contrary to the provisions of Articles 8.1.0(e), 8.2.0(a), 8.2.0(b), 8.2.0(e),13.0.(a)(i) and Labour Relations Act 34(2)(b) therefore there was no valid election.
g) THAT implementation of the deceitfully obtained consent orders and the resultant ruling not only unfairly burdens and harms the Applicant but also undermines the integrity of this Honourable court and its commitment to due process. Therefore, it is imperative to lift and/or strike out the consent dated 24th March, 2021 and the resultant orders thereto to uphold the principles of justice and fairness.
h) THAT the Applicant had no knowledge of the present suit and it has just come to her knowledge that this suit was filed in her name and that the consent was procured without her knowledge as such the suit is fraudulent.
i) THAT the Applicant is a teacher by profession and of Teacher Service Commission registration number TSC 424531 as indicated in the suit.
j) THAT the Application has been made in good faith.
k) THAT it will serve the interest of justice to have the consent orders vacated as they are a nullity and cannot be enforced.
l) THAT the Applicant is apprehensive that there shall be a miscarriage of justice if the matter is not certified as urgent.
11. On 19th April, 2025 the parties filed a consent in respect of the application in the following terms:
a) That the Claimant/Applicant is not a member of the 2nd Respondent (KUPPET) and as such lacked capacity to sue and compromise the suit into the impugned consent dated 31st March 2021.
b) That the Claimant/Applicant was neither aware nor filed this Cause and therefore the same was and is a fraud.
c) That the virtual elections held courtesy of the impugned consent order dated 31st March 2021 be and is hereby declared null and void and set aside.
d) That all the National Executive Board positions elected courtesy of the said fraudulent consent order are hereby declared vacant.
e) That the National Trustees of the 2nd Respondent do take charge and run the union national office and its bank accounts in the interim pending elections to be held pursuant to the Union Constitution.
f) That the Registrar of Trade Unions, Commissioner of Labour and Union Trustees shall organize Union National Elections within six months hereof.
g) That the 2nd Respondent be condemned to pay costs.
12. Upon perusal of the consent I noted that it contained new issues that were not pleaded in the suit or in the application. Further, the consequence of such consent as framed would be to nullify the elections of all the 2nd Respondent’s officials who came into office through the elections of 2021. I therefore directed the Claimant to serve all the union officials likely to be affected by the consent.
13. By an application dated 6th May, 2025 the firm of Tripple A Advocates applied to come on record for the Respondents in place of Mariaria & Company Advocates.
14. The application is supported by an affidavit of Moses Nthurima, the Deputy Secretary General of the 2nd Respondent who deposes in the affidavit that Mariaria & Company Advocates had no instructions from the Respondents to enter into the consent dated 9th April, 2025 and further that the union only came upon the cause list with the matter because of the union policy to peruse all cause lists of this court after discovering suits filed against the Respondents with adverse orders where they had not been served.
15. Mr. Nthurima further deposes that the counsel on record for the Respondents refused to sign a consent to allow Tripple A Advocates to come on record for the Respondents hence the application for Tripple A Advocates to be granted leave to come on record.
16. On 7th May, 2025 the court rejected the consent dated 9th April, 2025 on grounds that the orders stated therein were incapable of being allowed by consent. The court therefore fixed the applications dated 19th March, 2025 and 6th May 2025 for hearing on 3rd June, 2025.
17. The firm of Tripple A Advocates was allowed to come on record for the Respondents.
18. HON. RONALD KIPROTICH TONUI was also joined to the suit as the 3rd Respondent having been served as one of the persons who would be affected by the orders sought in the application.
19. The application dated 19th March 2025 was disposed of by written submissions. Submissions were received from the Claimant/Applicant and from the Respondents.
Submissions of the Claimant Applicant
20. The Applicant submitted that she is a primary school teacher and member of Kenya National Union of Teachers (KNUT). That her registration number is TSC 424531. That she neither possessed the capacity to sue as a bona fide member of the 2nd Respondent nor enter into the impugned consent of 24th March, 2021. That her documents were fraudulently used to file the suit.
21. The Applicant submits that the 2nd Respondent, being the custodian of the membership register under Article 11.3.0 (g) of the Constitution of KUPPET, was aware that the Applicant was not a member of the 2nd Respondent but abetted the lie in order to get court orders. That ordinarily the Secretary General is expected to know the 10 officials of the branch.
22. She submits that the alleged applicant stated in the suit that she was a primary school teacher. That the Recognition Agreement of the 2nd Respondent and Teachers Service Commission (TSC) clearly states that the 2nd Respondent represents teachers in post primary institutions. That it beats logic that the Applicant instituted the suit herein when she is not a member of the 2nd Respondent.
23. The Applicant states that prior to filing the instant application she had no knowledge of the suit herein nor did she instruct the advocate to file suit on her behalf. That it is against this background that the Applicant seeks to set aside the consent dated 24th March, 2021 and the striking out or setting aside of the orders on account of fraud, collusion and misrepresentation amongst other prayers.
24. The Applicant submits that the court should take cognizance of the fact that the Respondent had entered into a consent dated 9th April, 2025 whose terms confirmed that the suit as filed was fraudulent and the consent dated 31st March, 2021 was therefore null and should be set aside.
25. That the court should further note that the grounds of opposition filed by the Respondents dated 30th May, 2025 was an attempt to sanitize the fraudulent suit before their advocate was properly on record as provided under the mandatory provisions of Order 9 Rule 10 of the Civil Procedure Rules. That the said document having been filed without leave of the court, should be struck out as a party cannot approbate and reprobate at the same time.
26. On the issue whether her advocate is properly on record and whether the instant application is properly before court, the Applicant submits that Order 9 Rule 9 of the Civil Procedure Rules is not applicable as no conclusive judgment was entered in this case relying on the decision in Ngome v Plantex Company Limited (1984) KLR 792.
27. She further submits that she did not instruct any advocate in this matter, relying on the decision in KINGSLY CONSTRUCTION LIMITED V FEDERAL REPUBLIC OF SOUTH AFRICA & ANOTHER (COMMERCIAL CASE E265 OF 2019) [2024] KEHC 10579 (KLR) (COMMERCIAL AND TAX) (10 SEPTEMBER 2024) (RULING) where the court held thus;
“It is clear from the foregoing that, Order 9 rule 9 is a procedural requirement meant to provide orderliness in civil proceedings with respect to change of advocates. The wording
of Order 9 rule 9 is clear that the rule is applicable only where there is a change of advocate or a party decides to act in person when there has been an advocate previously on record. The rule does not envisage a scenario where a party was not previously represented by advocate and an advocate comes on record for the first time.”
28. The Applicant further submits that the Advocate previously on record Mr. Albert Mokono Ondieki who was the sole practitioner operating the firm of Mokono Ondieki & Co. Advocates died on 14th April, 2023 and was interred on 28th April, 2023. That he is thus not capable of giving consent for another advocate to take over in this matter. She relies on the decision in MOMBASA HIGHWAY TRANSPORT LIMITED V GULF AFRICA BANK LIMITED 2019 KEHC12287 (KLR); ABBAS KEGODE & ANOTHER V REGISTRAR OF TITLES & 2 OTHERS [2016] eKLR; PETER KINUTHIA V KENYA COMMERCIAL BANK &2 OTHERS [2018] eKLR and KENYA NATIONAL UNION OF NURSES V KIAMBU COUNTY PUBLIC SERVICE BOARD & ANOTHER [2018] eKLR among other authorities.
29. It is submitted that while the Respondents seek the striking out of the Applicant’s pleadings, the power to strike out a pleading which ends in driving a Party from the Judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable as has been stated in many judicial pronouncements. The Applicant relied on the decision in JOSEPH KIVOTA & ANOTHER V SIMON MWANIA MBUTU [2020] eKLR and KIVONDO V MUTISYA [2024] (KLR)
30. The Applicant submits that the instant case reveals that the Applicants claims are grounded on facts which relate to fraud by virtue of the fact that the Applicant's details were used in the suit to procure court orders and the Applicant was not aware of the suit. It submits that it would be thus unreasonable, draconian and unfair to strike out the Applicants pleadings. It is submitted that none of the Respondents have controverted the allegations made by the Applicant.
31. On whether the Applicant is entitled to the orders sought she submits that the application challenges the consent dated 24th March, 2021 adopted by this court on 30th March, 2021 on the basis that the same was obtained by way of misrepresentation, fraud and withholding of material facts.
32. The Applicant submits that the law on variation or setting aside of consent orders is now settled to the effect that the same can be done on grounds of fraud, misrepresentation, withholding of material facts, collusion, illegality, mistake, agreement being contrary to policy, absence of material facts and ignorance of material fact as was held in FLORA N WASIKE V DESTIMO WAMBOKO [1988] eKLR and THE BOARD OF TRUSTEES NATIONAL SOCIAL SECURITY FUND V MICHAEL MWALO [2015] eKLR.
33. The Applicant submits that she has sworn an affidavit stating that at no time did she issue instructions to Mokono Ondieki & Co. Advocates and neither was she aware of the suit. She submits that the consent was an act of collusion between the Respondents to get favourable orders.
34. The Applicant submitted that she lodged a complaint with the Law Society of Kenya which elicited no response.
35. On the averment that the Applicant's Counsel had no authority to institute the suit and to enter into the impugned consent which consent she was not aware of, she submits that the consent is nullity. The Applicant placed reliance on the decision in KENYA COMMERCIAL BANK LIMITED V SPECIALIZED ENGINEERING CO. LIMITED (1982) KLR 485 where the court held that for an advocate to enter a consent on behalf of his client, he must have the authority from his client. The Applicant further relied on the decision in INTERCOUNTY IMPORTERS AND EXPORTERS LIMITED V TELEPOSTA PENSION SCHEME REGISTERED TRUSTEES & 5 OTHERS (2019) eKLR where this Court held that a consent order will only be set aside if it can be demonstrated that it was procured through fraud, non-disclosure of material facts or mistake, or for any other good reason.
36. The Applicant submits that the court should make a finding that the Respondents and the alleged Applicants advocate on record knowingly made false representation of material facts which resulted in the recording and adoption of the impugned consent dated 24th March, 2021.
37. The Applicant prays that the orders sought in the application be granted as prayed.
38. The 1st and 2nd Respondents filed submissions dated 16th September, 2025. They urge the court to dismiss the application dated 19th March, 2025.
39. The 1st and 2nd Respondents submit that Polo & Co. Advocates who filed the Application before the court for determination is not properly on record having not complied with Order 9 Rule 9 of the Civil Procedure Rules, which is couched in mandatory terms. That failure to comply with Order 9 Rule 9 of the Civil Procedure Rules is not a technicality that can be cured by Article 159 of the Constitution of Kenya, 2010 as it is a pure point of law.
40. It is submitted that the outgoing Advocate is deceased. That the only recourse is for the Advocate to file an Application to allow the Court issue orders to come on record which the Advocates in the instant case have not sought. It is submitted that in KAZUNGU KITSAO KIVUMA V GEORGE KURIA MUTHONI [20211 eKLR, Chepkwony J. in her ruling on a Preliminary Obiection raised under Order 9 Rule 9 of the Civil Procedure Rules, 2010 allowed the Preliminary Objection by stating thus:
“…There is however no prove that the firm of M/S Kimondo Gachoka and Company Advocates, actually sought consent from the outgoing firm of M/S Kairu & McCourt and Company Advocates to bring the Application seeking leave to appeal out of time. The provision is therefore an important One and cannot be wished away. For the foregoing reasons, even without considering the other points of law, this court find the Preliminary Objection merited on the point that the Notice of motion application dated 9/9/2020 is lodged by advocates who were not part of the trial suit without the leave of the court and ought to be struck out.”
41. It is submitted that in JAMES NDONYU NJOGU V MURIUKI MACHARIA [2020] eKLR, Oundo J. stated as follows:
“...it must be remembered that the provisions of Order 9 Rule 9 of the Civil Procedure Rules do not impede the right of a party to be represented by an Advocate of his/her choice, but sets out the procedure to be adhered to when a party wants to change counsel after judgment has been delivered. Thus a party so wishing to change his counsel must notify the Court and other parties. The procedure set out under Order 9 Rule 9 above is mandatory and thus cannot be termed as a mere technicality. Having found that this procedure was not followed by M/S Nyiha, Mukoma & Company Advocates, the said firm is not properly on record, and has no legal standing to move the Court on behalf of the Applicant and therefore all pleadings filed by it ought to be struck out. Consequently, and in the absence of such leave of court as provided by the law, the application by Notice of motion under certificate of urgency dated the 13th December 2019 filed by the firm of M/S Nyiha, Mukoma & Company Advocates is hereby struck out with costs to the Respondent.
Therefore, valid Grounds have been raised in this instance and the same ought to be allowed with Costs to the Respondents. The Court needs not to interrogate the merits of the case as a valid preliminary objection has been raised by the 1st and the 2nd Respondents.
42. It is submitted that the grounds for setting aside consent orders are specific and none have been proved to wit fraud, collusion and/or misrepresentation.
43. It is further submitted that the Applicant has come to Court late and therefore is guilty of laches. That the Application is purely an afterthought, that equity will always aid the vigilant and not the indolent.
44. On whether the Application ought to be truck out, it is submitted that having proved that the grounds of opposition are valid, the application and any other pleading filed by the said Law Firm ought to be struck out with costs to the Respondents.
45. The 3rd Respondent, Hon. RONALD KIPROTICH TONUI filed submissions dated 13th October, 2025 in which he supports the Applicant’s application and submissions. He submits that it is a well-established principle of union governance that the Secretary General (SG), as the chief administrative officer and custodian of the union’s records, is expected to know and keep an updated register of the ten elected officials of each branch of the union. The SG plays a pivotal role in overseeing elections, verifying officials, and communicating with the Teachers Service Commission and other relevant bodies on union matters. That it is therefore inconceivable and wholly unacceptable that the 1st Respondent would feign ignorance of the fact that the Applicant was neither a member nor an official of the union.
46. That this dereliction of duty, or more accurately, deliberate complicity, in promoting a false narrative before the court amounts to misconduct, deception, and abuse of office. That the 1st Respondent's actions not only discredit the integrity of KUPPET's leadership but also constitute a serious abuse of the judicial process, as they led to the court being misled into issuing orders based on false and misleading information.
47. It is submitted that such conduct undermines the administration of justice and must be strongly condemned. The court was therefore urged to consider the deliberate nature of the falsehood, the high position of responsibility held by the 1st Respondent, and the resulting miscarriage of justice caused by misleading the court in making appropriate findings and orders, including the possible setting aside of the orders improperly obtained and the institution of sanctions against those responsible.
48. It is submitted that this reinforces the Claimant's assertion that fraudulent misrepresentation and identity theft were committed, and that the 1st Respondent, in collusion with the said advocate, deliberately misled the court by purporting to act on behalf of a person who had not instructed the advocate. That such actions not only undermine the integrity of the proceedings but also call for a thorough investigation and the nullification of all orders obtained through such misrepresentation.
49. That such deception amounts to a deliberate abuse of judicial process and may constitute criminal offenses, including identity theft, forgery, perjury, and conspiracy to defeat justice. The court was therefore urged to treat this matter with the seriousness it deserves, and to consider the nullification of any orders obtained through this fraud, as well as the initiation of appropriate sanctions against those responsible.
50. It is submitted that in law, where a material fact is not denied or contradicted, it is deemed to be admitted. That consequently, the Claimant's status as a non-member stands uncontroverted, and this fact is dispositive in determining locus standi in these proceedings.
51. It is submitted that the Court of Appeal in the case of REPUBLIC V CHIEF OF GENERAL STAFF & ANOTHER CIVIL APPEAL NO. 19 OF 2014 (2017) eKLR explained the effect of failure to controvert issues of fact contained in a replying affidavit and in pleadings as follows:
“... failure to file a further affidavit to rebut the respondents' averments in the replying affidavit together with the annexures thereto left the respondents assertions ... unshaken”
52. The 2nd Respondent urged this court to find and hold that the Claimant lacked locus standi at the time of initiating these proceedings. That accordingly, the entire claim or application should be dismissed with costs for want of locus standi.
Determination
53. I have considered the application dated 19th March, 2025 and the grounds in support thereof. I have further considered the affidavit in support of the Application by the 1st and 2nd Respondents dated 6th May, 2025 in so far as is relevant to the determination of the application dated 19th March, 2025. I have further considered the submissions on record.
54. The issues that present for determination are in my view the following:
a) Whether the firm of Polo & Co. Advocates are properly on record and whether the application dated 19th March, 2025 was validly filed by the said advocates on behalf of the Applicant
b) Whether the prayers in the application dated 19th March, 2025 are merited.
c) What orders should issue.
55. The 1st and 2nd Respondents insist that Polo & Co. Advocates are not properly on record having not complied with the mandatory requirements of Order 9 Rule 9 of the Civil Procedure Rules. The said rule provides:
[Order 9, rule 9.]
Change to be effected by order of court or consent of parties.
9. When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected by order of the court—
(a) upon an application with notice to all the parties; or
(b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.
56. The Applicant however insists that the provisions of Order 9 Rule 9 are not applicable in the circumstances of this case as she did not instruct any firm of advocates to file the instant suit and in any event, the said advocate’s firm is no longer in existence following the demise of the sole proprietor thereof.
57. Although no evidence was filed to confirm demise of Counsel Albert Mokono Ondieki, the 1st and 2nd Respondents have not contested the same so I will accept the averment as stated. For this reason, Order 9 Rule 9 would not apply as instructions to the deceased counsel lapsed upon his demise. I thus find that there was no counsel on record at the time the application before court was filed. The firm of Polo & Company Advocates are thus properly on record and the application lawfully filed.
58. The second issue is whether the Applicant is entitled to the orders sought in the Application. The Applicant sought orders nullifying the consent dated 24th March, 2021 which was adopted as a court order on 30th March, 2021. The Applicant further sought a declaration that the 2nd Respondents elections held in 2021 were invalid for failure to adhere to the provisions of the 2nd Respondent’s Constitution.
59. The Applicant has stated that she is not a member of the 2nd Respondent. This means that she would have no interest in whether or not the elections of the 2nd Respondent were held in accordance with its constitution or not.
60. Secondly, nullification of elections is a substantive cause of action that would have to be sought in a separate suit, not by an application in the instant suit.
61. Section 34 of the Labour Relations Act which provides for election of union officials provides as follows:
34. Election of officials.
(1) The election of officials of a trade union, employers’ organization or federation shall be conducted in accordance with their registered constitutions.
(2) The constitution of a trade union, employers’ organization 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;
(3) Notice of the election of officials under this section shall begiven 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.
62. As per section 34(1) of the Act, the elections are conducted in accordance with the registered union constitution. The registered union constitution as per the time of elections in 2021 was the constitution amended in 2017. The Applicant would therefore have to first get a court order nullifying that constitution for her prayers to succeed.
63. Further, only a member of the union in good standing, that is one who is not more than 13 weeks behind in payment of union dues, can apply for nullification of the constitution of the union. This is as provided for in section 33 of the Labour Relations Act which provides for voting members of a union. The section provides:
Voting members of trade union.
33. No person shall be a voting member of–
(a) a trade union unless that person is employed in the sector for which the trade union is registered;
(b) an employers’ organization unless that person has a physical address or an office in Kenya; or
(c) a registered trade union or employer’s organisation if that person’s subscriptions are more than thirteen weeks in arrears
64. The Applicant has expressly stated that she is not and has never been a member of the 2nd Respondent. She therefore does not have the locus standi to ask for nullification of union elections when she is not a member of that union.
65. Further, the elections were held in 2021. The prayers in the suit which the impugned consent relates to was conducted, as scheduled, in 2021. The officers elected have been in office since then and indeed their term of office of 5 years is coming to an end in 2026. It is not possible to undo that which has already happened because it is not possible to take the parties back to 2021. The prayers of the Applicant, which would in any case only be valid if she was a member of the union, would have been overtaken by events. The court cannot grant orders which are not capable of being implemented.
66. Finally, the effect of the consent was that the elections were carried out in the manner originally planned. The gist of the suit was to stop the elections on grounds that the same was based on a constitution that had been amended without participation of the members. The specific prayers in the suit are:
a) A declaration that the procedure adopted by the union in amending the constitution without notice to its members was unlawful, illegal and unprocedural.
b) A declaration that when dealing with the claimant, and amending the union constitution without notice the respondents acted without the law and with impunity.
c) The union be ordered to use its old constitution for the purpose of carrying the 2021 union elections.
d) Costs of the claim.
67. On the issue of holding elections virtually, as submitted by the Applicant, the Registrar of Trade unions gave permission for the same on 30th March, 2021. The prayer regarding the nullification of the elections due to the virtual voting would therefore not stand as even without the consent, the same would have happened anyway, based on the permission given by the Registrar.
68. From the entirety of the suit and the application before the court, the only valid complaint by the Applicant is that the suit was filed in her name without her consent or permission and that her signatures on the documents filed in court are a forgery as she did not instruct Mokono Ondieki & Co Advocates to file suit on her behalf.
69. Forgery is a serious criminal offence that should be reported to the police for investigation. Further, it is an act of professional misconduct for an advocate to file suit or represent a party without instructions. When an advocate does so, the advocate is liable to be charged with professional misconduct. The 1st and 2nd Respondents cannot be accused by the Applicant for criminal offences by the advocate who purported to act for her, if it is indeed true that she was not aware of the suit. Unfortunately for the Applicant, the Advocate she accuses of acting without her instructions is not alive to answer to the charges, or to defend himself.
70. I find it curious that the Applicant has not stated when she learned about the instant suit. She has alluded in the submissions, (but did not states so in her affidavit), that she filed a complaint to the Law Society of Kenya but did not get any response. She does not disclose when she filed the complaint.
71. The Applicant states emphatically that she is not a member of the 2nd Respondent. The orders sought in the consent which she presented before this court are matters which a non-member of the union would have no interest in. The said orders are:
a. That the virtual elections held courtesy of the impugned consent order dated 31st March 2021 be and hereby declared null and void and set aside.
b. That all the National Executive Board positions elected courtesy of the said fraudulent consent order are hereby declared vacant.
c. That the National Trustees of 2nd Respondent do take charge and run the union national office and its bank accounts in the interim pending elections to be held pursuant to the Union Constitution.
d. That the registrar of Trade Unions, Commissioner of Labour and Union Trustees shall organize Union National Elections within six months hereof.
e. That the 2nd Respondent be condemned to pay cost.
72. These are prayers that only a member of the union would have interest in and locus standi to seek. However, as I have already stated above, even if the Applicant was a member of the union, the court would not grant the orders as the prayers are overtaken by events, the elections in respect of which the orders were sought having taken place in 2021.
73. For the foregoing reasons I find no merit in the application and dismiss the same.
74. Ordinarily I would award costs against the Applicant as in my view the application raises more questions than it seeks to resolve. I will however give her the benefit of doubt and order that each party bears its costs of the application.
75. Orders accordingly.
DATED, DELIVERED AND SIGNED
THIS 11TH DAY OF DECEMBER, 2025.