REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
ELRC PETITION NO. E105 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
LUCY NGETHE.......................................................... PETITIONER
VERSUS
KENYA UNIVERSITIES STAFF UNION …………….1ST RESPONDENT
THE SECRETARY GENERAL
KENYA UNIVERSITIES STAFF UNION……………..2ND RESPONDENT
JOHN NJOROGE………………………………………….3RD RESPONDENT
MABEL MUKHEBO……………………………………….4TH RESPONDENT
THE REGISTRAR OF TRADE UNIONS………………5TH RESPONDENT
RULING
Before the court for determination is the applicant’s Notice of Motion dated 1st April, 2026 filed under Certificate of Urgency seeking orders that:-
1. Spent.
2. Spent.
3. A temporary order of Injunction be granted restraining the 3rd Respondent from substantively assuming the position of chairperson of the 1st Respondent’s Jomo Kenyatta University of Science and Technology JKUAT branch pending the hearing and determination of the Petition.
4. Spent.
5. Costs of this application be provided for.
The motion is expressed under Articles 22, 23, 35((i) (b) and 162 (2) (a) of the Constitution of Kenya, Section 1 and 1A of the Civil Procedure Act and Order 40 Rule 2, 3 and 4 of the Civil Procedure Rules and is based on the grounds enumerated on its face and the Supporting Affidavit of the petitioner sworn on 1st April 2026 who deponed that she was a member of the 1st Respondent and was a candidate in the branch elections for the position of chairperson and the elections took place on 13th March 2026 with three (3) contestants for the position of chair person who scored as follows:
1. John Njoroge 248 votes
2. Lucy Ngethe 156 votes
3. Dickson Marienga 134 votes
And the 3rd Respondent was declared the winner.
That on 19th March 2026 a colleague of the applicant informed her that the Higher Diploma Certificate of the 3rd Respondent was cleared to be eligible for the position of chairperson yet he had completed a one (1) year program with the Kenya Association of Professional Counselors from November 2002 to December 2003 and the KUSU Constitution required a 3 years of Post-Secondary KNEC Diploma or equivalent Diploma Certificate in a professional fieLd from a recognized institution and was thus not eligible to contest the position.
The affiant deposed that the 1st and 4th Respondents did not adequately ascertain the eligibility of the 3rd Respondent and the elections were unfair and unprocedural owing to the presence of an ineligible candidate and lack of proper oversight by the 1st and 4th Respondent.
1st and 2nd Respondent’s case
Vide a Replying Affidavit sworn on 13th April 2026 in opposition to the application, Dr Charles Mukwana deponed that the applicant had no basis to challenge the 3rd Responent Higher Diploma in Counselling and the Kenya National Qualifications Authority (KNQA) was the statutory body with power to authenticate academic and professional certificates but had not been joined as a party and in its absence the authenticity of the qualification could be ascertained as the court had no jurisdiction or capacity to do so and the letter dated 18th March 2026 by KADC was authentic and valid and the applicant’’s allegation was unfounded and without basis.
The affiant further deponed that the challenge by the applicant was speculative, malicious and lacked a legal foundation and was in bad faith.
That Article 16(4) (d) of the 1st Respondents constitution provided for the qualification and the 3rd respondent met the requirements.
Ann Kanake, the Acting Registrar of Trade Unions deponed that the prayer sought had been overtaken by events since the elections took place on 13th March 2026 and the branch officials were registered as such rendering the prayer moot and incapable of enforcement. That the election was conducted peacefully, transparently and in accordance with the constitution of the union and the Labour Relations Act overseen by a Labour officer who submitted a report to the affiant.
That the eligibility criteria was provided for by the constitution of the union and it was not the obligation of the Registrar of Trade unions to vet candidates.
When the matter came up on 2nd April 2026, the court issued directions on service, response and a hearing on 9th April 2026 when prayer No. 4 was granted and respondents were accorded 7 days to file responses and a mention scheduled for 27th April 2026 when the court was informed that the 3rd Respondent had filed a Preliminary Objection and directions on the filing of submissions were issued, 3 days a piece with a further mention on 20th May to confirm compliance when only counsels for the 2nd and 3rd respondents were present.
The matter was reserved for ruling on 18th June 2026.
The 3rd Respondent contends that;
1. The petition was defective for non-compliance with the Employment and Labour Relations court (Trade Union Election Disputes) Procedure and Practice Directions 2025 in particular Clause 5(2) and (8).
2. The suit is an election petition disguised as a petition and does not meet the threshold for a petition strictu sensu.
3rd Respondent’s submissions
As to whether the Notice of Preliminary Objection dated 15th April 2026 met the threshold of a Preliminary Objection, counsel submitted that it did in that the Labour Relations Act and the practice Directions provided a binding road map to be complied with.
Reliance was placed on Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696 on the definition of a Preliminary Objection as was the decision in Sakwa v Kenya National Private Security Workers Union & 3 others (2026) KEELRC 632 (KLR) to urge that compliance with provisions of law was a question of law.
On jurisdiction, counsel submitted that where a statute or subsidiary legislation prescribed the way of moving the court, it had to be adhered to. Reliance was placed on the decision in Cyrd J Haroo v Uchumi Services Ltd & 3 others where Nzioki Wa Makau J found that the Petition had not be framed as a trade union election petition.
Also cited was the decision in Bichang’a & 2 others v Kenya National Union of Teachers (KNUT) & 4 others (2026) KEELRC 135 (KLR) to urge that the court’s practice Directions was a self-contained regime on trade union election petition to urge that the Petitioner approached the court by way of constitutional petition hereby circumventing the statutory framework.
Reliance was further placed on the decision in Speaker of the National Assembly v Karume (1992) KECA 42 (KLR).
Finally, counsel submitted that the instant petition did not meet the threshold in Anarita Karimi Njeru v Attorney General (No.1) (1979) 1 KLR 154. Counsel urged the court to uphold the petition.
Analysis and determination
The salient issue for determination is whether the 3rd Respondent’s Notice of Preliminary Objection is merited.
As to whether the 3rd Respondent’s Notice of Preliminary Objection, met the threshold of a Preliminary Objection, the court is guided by the often cited sentiments of Law JA and Sir Charles Newbold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 thus;
“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a Preliminary point may dispose of the suit. Examples are an objection to jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
Since the 3rd Respondent is contesting compliance with directions which ought to be complied in trade unions election, the court is satisfied that it raises a point of law that does not require any examination or analysis of the evidence to establish.
The court is satisfied the Preliminary Objection meets the threshold enunciated in the Mukisa Biscuit Case (Supra).
The 3rd Respondent contended that the petition did not comply with Direction 5 (2) and 8 of the Employment and Labour Relations Court (Trade Union Election Dispute) Procedure and Practice Directions 2025 and the election petition was disguised as a petition.
The Employment and Labour Relations Court (Trade Union and Election Dispute) Procedure and Practice Directions 2025 (herein after Directions) were promulgated by the Chief Justice and President of the Supreme Court of Kenya on 11th December 2025 pursuant to the provisions of Articles 22(3) and (4), 159(2), 16(2) (a) 165(5) (b) and as read with Article 41 of the Constitution of Kenya 2010 in exercise of powers conferred under section 10 of the Judicature Act, Section 5(1) and (2) of the Judicial Service Act 2011 and Section 27 as read with Section 3 of the Employment and Labour Relations Court Act and Section 34 of the Labour Relations Act.
Section 5 of the Directions provides:
(1) …
(2) (2) In addition to the provisions of the Rules on the title, a person filing the election petition shall file it as such by providing for the number and year of filing at the top thus “Election Petition No… of … (year).
A perusal of instant petition reveals that Line three (3) of the top page is styled as ELECTION PETITION NO. E … of 2026 in compliance with the foregoing Directive.
Directive 8 on the other hand provides;
(1) At the time of filing a petition, a Petitioner may deposit security for the prompt payment of costs that may become payable by the petitioner.
(2) The security to be deposited under paragraph (1) shall-
(a) Determined by the court or as may be fixed in the rules of the court and
(b) Payable by the Petitioner not more than 10 days after the filing of the petition.
A plain reading of this Directive shows that payment of security is not obligatory and the amount payable is dependent on a determination by the court pursuant to an application or as fixed by the Rules of the court.
In the instant case, no determination has been made and the Employment and Labour Relations Court (Procedure) Rules, 2024 have no provision on security of costs in Trade Union election Petitions.
From the foregoing analysis, it is the finding of the court that the instant petition substantially complied with the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025.
The upshot of the foregoing is that the 3rd respondent’s Notice of Preliminary Objection dated 15th April 2026 lacks merit and it is accordingly dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 17TH DAY OF JUNE, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
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