DRAFTDRAFT
Introduction
1. In the Petition dated 11 th February 2026, the Petitioner challenges the manner in which the Respondents suspended and subsequently expelled him from office as the 2 nd Respondent’s Executive Secretary. He avers that the Respondents actions were marred with irregularities were unprocedural and in contravention of Articles 10, 24, 36, 41, 47 and 50 of the Constitution. The Petitioner thus seeks the following reliefs:
a) A declaration that the failure by the 2 nd , 3 rd and 4 th Respondents to accord the Petitioner the opportunity to respond to, adduce evidence and challenge evidence adduced against him violated the Petitioner's fundamental rights to expeditious, efficient, lawful, reasonable and procedurally fair administrative action, access to justice and fair hearing and the same violated Articles 10, 25, 47 and 50 of the Constitution and Section 4 of the Fair Administrative Action Act.
b) A declaration that the process culminating in the 2 nd Respondent’s 229th National Executive Committee (NEC) meeting held on 2 nd December 2024 and the 64 th Annual Delegates Conference held on 10 th December 2024 ratifying the Petitioner’s expulsion was illegal, marred with irregularities, unprocedural and the same is null and void for contravening the Constitution and the Fair Administrative Action Act.
c) A declaration that the impugned proceedings held by the Respondents in relation to the Petitioner were undertaken in an arbitrary and capricious manner besides being in violation of the principles of natural justice and fair hearing.
d) A declaration that the expulsion of the Petitioner did not meet the criteria under Article 24 of the Constitution as it amounts to unreasonable and unjustified limitation of his right to fair labour practices protected under Article 41 of the Constitution.
e) An order of certiorari to issue to bring to the Court for quashing the 2 nd Respondent’s Resolutions contained in the Minutes for the NEC meeting held on 2 nd December 2024 and ADC conference held on 10 th December 2024 expelling the Petitioner as a member of KNUT.
f) An order reinstating the Petitioner into union membership for the 2 nd Respondent.
g) A mandatory order compelling the 1 st Respondent to reinstate the Petitioner as the Mwingi KNUT Branch Executive Officer until either lawfully removed from office or subsequent Branch elections are held.
h) A mandatory order directing the 2 nd Respondent to pay the Petitioner all withheld allowances and benefits since 9 th March 2023.
i) Costs of this Petition and any other reliefs this Court deems just and fit to grant.
2. In opposing the Petition and the 2 nd , 3 rd and 4 th Respondents filed a Notice of Preliminary dated 23 rd February, 2026 against the Petition and the Application and also filed a replying affidavit to the Application sworn by Collins Oyoo on 19 th February, 2026. The Court directed that the Preliminary Objection and the Application be heard simultaneously.
3. The Court will determine the Preliminary Objection first, should it succeed, the Court will cease jurisdiction and take no further step. If the Preliminary objection fails, the Court will proceed and determine the Application on merits.
The Application
4. The Petitioner in the Notice of Motion application of even date seeks orders that:
i. Spent.
ii. Pending hearing and determination of this Application inter partes, this Court be pleased to issue a conservatory order directed at the Respondents either through themselves directly, their agents, servants, employees and whomsoever acting pursuant to their instructions, staying and/or suspending the implementation of the 2 nd Respondent’s decision to expel the Petitioner from the 2 nd Respondent’s union membership.
iii. Pending hearing and determination of the Petition, this Court be pleased to issue a conservatory order directed at the Respondents either through themselves directly, their agents, servants, employees and whomsoever acting pursuant to their instructions, staying and/or suspending the implementation of the 2 nd Respondent’s decision to expel the Petitioner from the 2 nd Respondent’s union membership.
iv. Pending hearing and determination of this Application inter partes, this Court be pleased to issue a conservatory order prohibiting the 2 nd , 3 rd and 4 th Respondents either through themselves directly, their agents, servants, employees and whomsoever acting pursuant to their instructions, from barring, locking out, disqualifying and/or in whatsoever manner limiting the Petitioner’s right to participate in the 2 nd Respondent Mwingi Branch union elections scheduled for 28 th February 2026.
v. Pending hearing and determination of this Petition, this Court be pleased to issue a conservatory order prohibiting the 2 nd , 3 rd and 4 th Respondents either through themselves directly, their agents, servants, employees and whomsoever acting pursuant to their instructions, from barring, locking out, disqualifying and/or in whatsoever manner limiting the Petitioner’s right to participate in the 2 nd Respondent Mwingi Branch union elections scheduled for 28 th February 2026.
vi. Pending hearing and determination of this application inter partes, this Court be pleased to issue an order directing the 2 nd Respondent to halt the Mwingi Branch Union elections for the position of Executive Secretary scheduled for 28 th February 2026.
vii. Pending hearing and determination of the Petition herein, this Court be pleased to issue an order directing the 2 nd Respondent to halt the Mwingi Branch Union elections for the position of Executive Secretary scheduled for 28 th February 2026.
viii. Pending hearing and determination of this Application inter partes, this Court be pleased to issue an injunction prohibiting the 2 nd , 3 rd and 4 th Respondents either through themselves directly, their agents, servants, employees and whomsoever acting pursuant to their instructions from suspending the Petitioner’s 2 nd Respondent union membership.
ix. Pending hearing and determination of this Application inter partes, this Court be pleased to issue an injunction prohibiting the 2 nd , 3 rd and 4 th Respondents either through themselves directly, their agents, servants, employees and whomsoever acting pursuant to their instructions from suspending the Petitioner’s 2 nd Respondent union membership.
x. Costs of this application be provided for.
5. The Application is supported by the Petitioner’s affidavit and the grounds on the face of the Application.
6. He asserts that the 2 nd , 3 rd and 4 th Respondents have unilaterally and in contravention of the principles of natural justice and fair administrative action expelled him from the 2 nd Respondent’s membership contrary to his constitutional rights under Article 41 of the Constitution.
7. For context, he depones that he was elected as the 2 nd Respondent’s Executive Secretary on 16 th January 2021 for a term of 5 years. He depones that on 4 th May 2023 the 4 th Respondent issued him with a letter suspending him on the basis of undisclosed gross misconduct charges pending the resolution of the said allegations. He informs that prior to this, he had not been issued with any letter to show cause.
8. Soon thereafter, he received a letter dated 9 th May 2023 informing him that he would be granted an opportunity to defend himself at the 2 nd Respondent’s Annual General Meeting (AGM). He avers that despite this assurance; no AGM was held in 2023 and 2024.
9. He depones that on 2 nd December 2024, the 2 nd Respondent convened the 229 th National Executive Council (NEC) meeting where the 2 nd Respondent resolved to expel him. This was afterward ratified at the 2 nd Respondent’s 64 th Annual Delegates Conference on 10 th December 2024. He contends that all the while, he was not informed of the developments neither invited or given an opportunity to represent himself. He argues that this is in direct violation of his rights under Article 47 and 50 of the Constitution.
10. The Petitioner depones that he received the letter of expulsion on 20 th December 2024 and shortly after, his name removed from the 2 nd Respondent’s register of officials at Mwingi Branch, without notifying him. He avers that the Respondents actions have constructively limited his right to participate in the 2 nd Respondent’s union activities.
11. In view of the foregoing, he alleges that the Petition will be rendered nugatory if the Respondents succeed in barring him from participating in the upcoming elections scheduled for 28 th February 2026.
1 st Respondent’s Case
12. The 1 st Respondent did not respond to the Application or the Petition.
2 nd , 3 rd and 4 th Respondents’ Case
13. In reply, these Respondents through the 3 rd Respondent, Collins Henry Oyuu filed a Replying Affidavit sworn on 19 th February 2026.
14. He affirms that the Petitioner was a member of the 2 nd Respondent having been elected as the Executive Secretary, Mwingi Branch.
15. He depones that the Petitioner was suspended from office following a disciplinary matter based on allegations contained in a letter dated 8 th March 2023.
16. He contends that the Petitioner dissatisfied with this resolution, had an opportunity to appeal the Branch Executive Committee’s decision to NEC within two months in line with Article 3(12) of the Union Constitution. He avers that the Petitioner did not pursue this remedy. He depones that upon deliberation of the matter at NEC, a decision was made to expel him from the Union all together.
17. He claims that while on suspension the Petitioner broke into the Mwingi Branch office and took a document and Ksh.63,000/-. He states that this matter was reported to the police.
18. It is averred that later on, the Petitioner vide a letter dated 24 th September 2024 and received on 25 th November 2025, sought to appeal the resolution of the Branch Executive Committee.
19. He avers that the NEC in its meeting dated 2 nd December 2024 resolved to expel the Petitioner from the Union due to his professional misconduct and the same communicated to the 1 st Respondent on 20 th December 2024. This decision was subsequently ratified on 10 th December 2024 at the National Delegates Conference.
20. He avers that the Petitioner failed to attend the National Delegates Conference in which the decision was made despite being aware of it. Equally, that the Petitioner has neglected to appeal the decision.
21. The Petitioner is faulted for inordinate delay as he waited 7 months to challenge his expulsion and right when the elections, which are time bound, are to be carried out. Further to this, he argues that the Petitioner having not paid the 2 nd Respondent’s monthly subscription fees for more than 30 months, is not eligible for election as an officer as provided under Article 10(4) of the Constitution.
22. He claims that the Petitioner has not come to Court with clean hands in this matter. Furthermore, in the circumstances, he asserts that the Petitioner has not satisfied the threshold for grant of conservatory orders.
The Preliminary Objection
23. The 2 nd , 3 rd and 4 th Respondents in opposition to the Petition filed a Preliminary Objection dated 23 rd February 2026. They oppose the Petition on the grounds that:
i. This Court lacks jurisdiction to entertain this Petition as the same contravenes Article 162 (2) (a) of the Constitution, Section 87 (i) & (2) of the Employment Act, 2007 as revised in 2012 and Section (4) (1) of the Employment and Labour Relations Court Act Cap 8e which give exclusive jurisdiction on labour relation matters.
ii. The Petition herein ought to be struck out in limine.
Petitioner’s Submissions
24. Gichaba and Company Advocates for the Petitioner filed submissions dated 16 th February 2026 where the issues for determination were identified as: whether this Court has Jurisdiction to hear and determine the Petition and whether the Petitioner has met the threshold for grant of conservatory orders .
25. On the first issue, Counsel submitted that Articles 23 and 165 of the Constitution vests this Court with jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Furthermore, the jurisdiction to determine questions on whether anything said to be done under the authority of the Constitution or any law is inconsistent with, or in contravention of the Constitution.
26. In this matter, Counsel submitted that the Petitioner’s key contention is that the 2 nd , 3 rd and 4 th Respondent’s decision to expel him as a member of the 2 nd Respondent violated his constitutional rights under Article 36 and 41 of the Constitution. This is argued to be a limitation of the Petitioner’s fundamental rights. Accordingly, Counsel underscored that the Petitioner had properly invoked the jurisdiction of this Court, under Articles 23 and 165 of the Constitution.
27. Reliance was placed in Hakizimana Abdoul Abdulkarim vs Arrow Motors (EA) Ltd & another (2017) eKLR where it was held that:
“A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute…When determining whether an argument raises a constitutional issue, the court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the court to consider Constitutional rights or values…..”
28. On the second issue, Counsel stated that the principles of issuance of conservatory orders were outlined in Board of Management of Uhuru Secondary School Vs City County Director of Education and 2 others [2015] eKLR as follows:
“a) The applicant ought to demonstrate an arguable prima facie case with a likelihood of success, and that in the absence of the conservatory orders sought, he is likely to suffer prejudice as a result of the violation or threatened violation of the constitution;
b) Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success, the court is then to decide whether a grant or denial of the conservatory relief will enhance the constitutional values and objects of the specific right or freedom of Bill of rights;
c) Thirdly, flowing from the first two principles is whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure as far as possible that any transitional motions before the court to do not render nugatory the ultimate end of justice;
d) The court must consider conservatory orders also in the face of public interest dogma; and
e) Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicant’s credentials, the prima facie correctness of the availed information, whether the grievances are genuine, legitimate, and deserving, and finally, whether the grievances and allegations are grave and serious or merely vague and reckless.”
29. Like dependence was placed in Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR, uleiman Vs Amboseli Resort Limited [2004] 2 KLR 590 and Gatirau Peter Munya – Vs Dickson Mwenda Kithinji & 2 others [2014] eKLR .
30. Counsel submitted that the Petition raises serious, arguable and non-frivolous constitutional questions on violation of Article 24, 36, 40, 41, 47 and 50 of the Constitution. Counsel stressed that the issues raised go to the constitutionality of the irregularity of the Petitioner’s expulsion by the Respondents and the Petitioner’s rights under the Constitution to join, form and participate in union activities of his choice.
31. As such, Counsel emphasized that these issues merit full interrogation by this Court. To buttress this point reliance was placed in Center for rights education & awareness (creaw) & 7 others vs Attorney General Petition No. 16 of 2011 where it was held that:
“At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the Court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.”
32. Counsel further submitted that the Petitioner stands to suffer prejudice since as its stands, he cannot participate in the union activities of the 2 nd Respondent including vying for the election owing to the purported illegal expulsion. As such, Counsel argued that Petitioner will suffer irreparable prejudice as he will have been denied an opportunity to participate in the elections based on the arbitrary decision undertaken by the Respondents herein. Counsel relying in Center for rights education & awareness (creaw) (supra) noted that these circumstances constitutes a real and imminent prejudice arising from the alleged violation of constitutional rights which warrants interim protection.
33. Equally, Counsel argued that the Petition will be rendered nugatory if these orders are not issued since his rights under Article 36 and 41 of the Constitution will have been curtailed since the elections scheduled for 28 th February 2026 would have occurred. In light of this, Counsel argued that the Petitioner had satisfied the threshold for grant of conservatory orders.
2 nd , 3 rd and 4 th Respondents Submissions
34. The 2 nd , 3 rd and 4 th Respondents through Nyamu and Nyamu Company Advocates filed two sets of submissions dated 19 th February 2026 and 24 th February 2026 on the Application and Preliminary Objection respectively.
35. Regarding the Application, Counsel submitted on the onset that the Petitioner had failed to show that there is an arguable case to be answered by the Respondents or that his rights were infringed in the process. Reliance was placed in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (2003) eKLR where it was held that:
"A prima facie case in a civil application includes but is not confined to a genuine and arguable case". It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter."
36. Counsel argued that the Petitioner’s account was misleading as he failed to appeal the decision within two months as stipulated under Article 3 (12) of the KNUT Constitution 2022. Counsel noted that the Petitioner appealed months later on 24 th September 2025.
37. Equally, Counsel stated that as per the adduced minutes, the Petitioner was present at the meeting where he was suspended. Counsel argued that the Petitioner signed the registration form for the meeting and was afforded an opportunity to speak on his misconduct, which he did. Counsel as well submitted that the Petitioner falsely averred that he was issued with the expulsion letter on 25 th May 2025 when indeed it was issued on 20 th December 2024.
38. Counsel further submitted that the Petitioner in seeking to bar the elections, raises 7 months later thus is guilty of delay. Counsel added that the Petitioner had forfeited his right to challenge the decision to expel him by the delay in prosecuting his case. Nonetheless it was argued that the Petitioner is not eligible for the election as an officer, as does not meet the requirements of Article 10 (4) of the KNUT Constitution 2022 which provides that no one shall hold office in any Branch who has not paid the annual subscription for the preceding year.
39. Reliance was placed in Gatirau Munya (supra) where it was held that:
“Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.”
40. Like dependence was placed in Board of Management of Uhuru Secondary School (supra).
41. Furthermore, Counsel submitted that the Petitioner had failed to show any alleged losses he may suffer and if any would not be able to be compensated for by way of damages if the conservatory orders are not granted. Counsel posited that the damage envisioned by the Petitioner is unfounded given that he is not a member of the 2 nd Respondent. Counsel submitted that the Court in Nguruman Limited v Bonde Nielsen & 2 Others (2014) eKLR underscored that speculative injury will not do, there must be more than an unfounded fear or apprehension on the part of the Petitioner.
42. Comparable reliance was placed in Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 8 others (Interested Parties); Centre for Intellectual Property & Information Technology (Proposed Amicus Curiae) Petition Nos. 56, 58 & 59 of 2019 [2019J eKLR .
43. Counsel submitted that the Petitioner having been aggrieved by the decision of the Branch Executive Committee to suspend him, he ought to have appealed the decision to the NEC within two months, as envisioned under Article 3(12) of the KNUT Constitution (2022). Counsel stressed that given that the Branch Executive Committee decision was made in the Petitioner’s presence on 3 rd May 2023, the Petitioner’s attempt to appeal the decision now without even utilizing the internal dispute resolution amounts to inordinate delay and not in public interest as envisioned for in conservatory orders. Further that, Counsel argued that the right to association as provided under Article 36 of the Constitution was rightfully limited by dint of his actions due to his professional misconduct as an official.
44. Reliance was placed in MSA v KMKA (Civil Application E123 of 2024) [2024) KECA 1222 (KLR) where it was held that:
“Whereas there is no precise measure of what amounts to inordinate delay and whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so, on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. On applying court's mind on the delay, caution is advised for courts not to take the word 'inordinate' in its dictionary meaning, but in the sense of excessive as compared to normality."
45. Further reliance was placed on Benjoh Amalgated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR .
46. In conclusion, Counsel noted that conservatory orders are discretionary in nature. Counsel urged the Court to find that the Petitioner had not come to Court with clean hands thus not deserving of these orders. Counsel added that the Petitioner not being a member of the 2 nd Respondent should not affect the rights of the members without dealing with his reinstatement as a member and paying dues for the preceding year.
47. Turning to the Preliminary Objection, Counsel submitted that the issues raised in the Petition revolving around the Petitioner’s suspension and expulsion from the 2 nd Respondent are labour relation matters which jurisdiction is granted to the Employment and Labour Relations Court under Article 162(1) and (2)(a) of the Constitution.
48. Counsel submitted that the dispute stipulated herein is covered under Section 12(i)(g) of the Employment and Labour Relations Court Act. For this reason, Counsel argued that this Court’s jurisdiction is ousted under Article 165(5) of the Constitution.
49. Reliance was placed in Republic v Chengo & 2 others (Petition 5 of 2015) [2017] KESC 15 (KLR) where it was held that:
“In addition to the above, we note that pursuant to article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and the ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of courts, with suis generis jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous courts and exercise different and distinct jurisdictions. As article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.”
50. Further cited in support of the above argument was the case of Constitutional Petition No. E156 of 2024, Clifford Onyango Odhiambo versus the Attorney General & others .
Analysis and Determination
51. Having regard to the pleadings and submissions of Counsel, I find the following to be the issues for determination:
i. Whether the 2 nd , 3 rd and 4 th Respondent’s Preliminary Objection is merited.
ii. Whether or not the Petitioner’s Application for conservatory orders should be allowed.
Whether the 2 nd , 3 rd and 4 th Respondent’s Preliminary Objection is merited.
52. The threshold of a Preliminary Objection was summarized in Mukisa Biscuit Manufacturers Ltd -vs- Westend Distributors Ltd, (1969) EA 696 page 700 as follows: -
'So far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the 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.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion…”
53. Likewise, the Court in Dismas Wambola v Cabinet Secretary, Treasury & 5 others [2017] KEHC 8777 (KLR) observed as follows:
“…a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.
In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts.”
54. The Respondents Counsel contended that this is not the proper forum for the adjudication of this dispute. They vehemently argued that the proper Court to ventilate the grievances of this nature is the Employment and Labour Relations Court. In reply, the Counsel for the Petitioner countered that the matter herein addresses the violation of rights and fundamental freedoms under the Bill of rights which this Court is empowered to interrogate under Article 165 (3) (b) and Article 23 of the Constitution.
55. A jurisdictional issue raises ‘a pure point of law’ for when it is raised successfully, the Court cannot venture into the merits of the matter. It must down its tools.
56. Special courts are made reference to by Article 162(2) of the Constitution as follows:
1) The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2).
2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
a) employment and labour relations; and
b) the environment and the use and occupation of, and title to, land.
3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
57. To give effect to this Article, the Parliament enacted the Employment and Labour Relations Act . Section 12 defines the jurisdiction of the Court as follows:
The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law, which extends jurisdiction to the Court relating to employment and labour relations including—
a) disputes relating to or arising out of employment between an employer and an employee;
b) disputes between an employer and a trade union;
c) disputes between an employers’ organisation and a trade union’s organisation;
d) disputes between trade unions;
e) disputes between employer organisations;
f) disputes between an employers’ organisation and a trade union;
g) disputes between a trade union and a member thereof;
h) disputes between an employer’s organisation or a federation and a member thereof;
i) disputes concerning the registration and election of trade union officials; and
j) disputes relating to the registration and enforcement of collective agreements.
58. The High Court has expansive jurisdiction hear and determine constitutional disputes including questions relati
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Introduction
1. In the Petition dated 11 th February 2026, the Petitioner challenges the manner in which the Respondents suspended and subsequently expelled him from office as the 2 nd Respondent’s Executive Secretary. He avers that the Respondents actions were marred with irregularities were unprocedural and in contravention of Articles 10, 24, 36, 41, 47 and 50 of the Constitution. The Petitioner thus seeks the following reliefs:
a) A declaration that the failure by the 2 nd , 3 rd and 4 th Respondents to accord the Petitioner the opportunity to respond to, adduce evidence and challenge evidence adduced against him violated the Petitioner's fundamental rights to expeditious, efficient, lawful, reasonable and procedurally fair administrative action, access to justice and fair hearing and the same violated Articles 10, 25, 47 and 50 of the Constitution and Section 4 of the Fair Administrative Action Act.
b) A declaration that the process culminating in the 2 nd Respondent’s 229th National Executive Committee (NEC) meeting held on 2 nd December 2024 and the 64 th Annual Delegates Conference held on 10 th December 2024 ratifying the Petitioner’s expulsion was illegal, marred with irregularities, unprocedural and the same is null and void for contravening the Constitution and the Fair Administrative Action Act.
c) A declaration that the impugned proceedings held by the Respondents in relation to the Petitioner were undertaken in an arbitrary and capricious manner besides being in violation of the principles of natural justice and fair hearing.
d) A declaration that the expulsion of the Petitioner did not meet the criteria under Article 24 of the Constitution as it amounts to unreasonable and unjustified limitation of his right to fair labour practices protected under Article 41 of the Constitution.
e) An order of certiorari to issue to bring to the Court for quashing the 2 nd Respondent’s Resolutions contained in the Minutes for the NEC meeting held on 2 nd December 2024 and ADC conference held on 10 th December 2024 expelling the Petitioner as a member of KNUT.
f) An order reinstating the Petitioner into union membership for the 2 nd Respondent.
g) A mandatory order compelling the 1 st Respondent to reinstate the Petitioner as the Mwingi KNUT Branch Executive Officer until either lawfully removed from office or subsequent Branch elections are held.
h) A mandatory order directing the 2 nd Respondent to pay the Petitioner all withheld allowances and benefits since 9 th March 2023.
i) Costs of this Petition and any other reliefs this Court deems just and fit to grant.
2. In opposing the Petition and the 2 nd , 3 rd and 4 th Respondents filed a Notice of Preliminary dated 23 rd February, 2026 against the Petition and the Application and also filed a replying affidavit to the Application sworn by Collins Oyoo on 19 th February, 2026. The Court directed that the Preliminary Objection and the Application be heard simultaneously.
3. The Court will determine the Preliminary Objection first, should it succeed, the Court will cease jurisdiction and take no further step. If the Preliminary objection fails, the Court will proceed and determine the Application on merits.
The Application
4. The Petitioner in the Notice of Motion application of even date seeks orders that:
i. Spent.
ii. Pending hearing and determination of this Application inter partes, this Court be pleased to issue a conservatory order directed at the Respondents either through themselves directly, their agents, servants, employees and whomsoever acting pursuant to their instructions, staying and/or suspending the implementation of the 2 nd Respondent’s decision to expel the Petitioner from the 2 nd Respondent’s union membership.
iii. Pending hearing and determination of the Petition, this Court be pleased to issue a conservatory order directed at the Respondents either through themselves directly, their agents, servants, employees and whomsoever acting pursuant to their instructions, staying and/or suspending the implementation of the 2 nd Respondent’s decision to expel the Petitioner from the 2 nd Respondent’s union membership.
iv. Pending hearing and determination of this Application inter partes, this Court be pleased to issue a conservatory order prohibiting the 2 nd , 3 rd and 4 th Respondents either through themselves directly, their agents, servants, employees and whomsoever acting pursuant to their instructions, from barring, locking out, disqualifying and/or in whatsoever manner limiting the Petitioner’s right to participate in the 2 nd Respondent Mwingi Branch union elections scheduled for 28 th February 2026.
v. Pending hearing and determination of this Petition, this Court be pleased to issue a conservatory order prohibiting the 2 nd , 3 rd and 4 th Respondents either through themselves directly, their agents, servants, employees and whomsoever acting pursuant to their instructions, from barring, locking out, disqualifying and/or in whatsoever manner limiting the Petitioner’s right to participate in the 2 nd Respondent Mwingi Branch union elections scheduled for 28 th February 2026.
vi. Pending hearing and determination of this application inter partes, this Court be pleased to issue an order directing the 2 nd Respondent to halt the Mwingi Branch Union elections for the position of Executive Secretary scheduled for 28 th February 2026.
vii. Pending hearing and determination of the Petition herein, this Court be pleased to issue an order directing the 2 nd Respondent to halt the Mwingi Branch Union elections for the position of Executive Secretary scheduled for 28 th February 2026.
viii. Pending hearing and determination of this Application inter partes, this Court be pleased to issue an injunction prohibiting the 2 nd , 3 rd and 4 th Respondents either through themselves directly, their agents, servants, employees and whomsoever acting pursuant to their instructions from suspending the Petitioner’s 2 nd Respondent union membership.
ix. Pending hearing and determination of this Application inter partes, this Court be pleased to issue an injunction prohibiting the 2 nd , 3 rd and 4 th Respondents either through themselves directly, their agents, servants, employees and whomsoever acting pursuant to their instructions from suspending the Petitioner’s 2 nd Respondent union membership.
x. Costs of this application be provided for.
5. The Application is supported by the Petitioner’s affidavit and the grounds on the face of the Application.
6. He asserts that the 2 nd , 3 rd and 4 th Respondents have unilaterally and in contravention of the principles of natural justice and fair administrative action expelled him from the 2 nd Respondent’s membership contrary to his constitutional rights under Article 41 of the Constitution.
7. For context, he depones that he was elected as the 2 nd Respondent’s Executive Secretary on 16 th January 2021 for a term of 5 years. He depones that on 4 th May 2023 the 4 th Respondent issued him with a letter suspending him on the basis of undisclosed gross misconduct charges pending the resolution of the said allegations. He informs that prior to this, he had not been issued with any letter to show cause.
8. Soon thereafter, he received a letter dated 9 th May 2023 informing him that he would be granted an opportunity to defend himself at the 2 nd Respondent’s Annual General Meeting (AGM). He avers that despite this assurance; no AGM was held in 2023 and 2024.
9. He depones that on 2 nd December 2024, the 2 nd Respondent convened the 229 th National Executive Council (NEC) meeting where the 2 nd Respondent resolved to expel him. This was afterward ratified at the 2 nd Respondent’s 64 th Annual Delegates Conference on 10 th December 2024. He contends that all the while, he was not informed of the developments neither invited or given an opportunity to represent himself. He argues that this is in direct violation of his rights under Article 47 and 50 of the Constitution.
10. The Petitioner depones that he received the letter of expulsion on 20 th December 2024 and shortly after, his name removed from the 2 nd Respondent’s register of officials at Mwingi Branch, without notifying him. He avers that the Respondents actions have constructively limited his right to participate in the 2 nd Respondent’s union activities.
11. In view of the foregoing, he alleges that the Petition will be rendered nugatory if the Respondents succeed in barring him from participating in the upcoming elections scheduled for 28 th February 2026.
1 st Respondent’s Case
12. The 1 st Respondent did not respond to the Application or the Petition.
2 nd , 3 rd and 4 th Respondents’ Case
13. In reply, these Respondents through the 3 rd Respondent, Collins Henry Oyuu filed a Replying Affidavit sworn on 19 th February 2026.
14. He affirms that the Petitioner was a member of the 2 nd Respondent having been elected as the Executive Secretary, Mwingi Branch.
15. He depones that the Petitioner was suspended from office following a disciplinary matter based on allegations contained in a letter dated 8 th March 2023.
16. He contends that the Petitioner dissatisfied with this resolution, had an opportunity to appeal the Branch Executive Committee’s decision to NEC within two months in line with Article 3(12) of the Union Constitution. He avers that the Petitioner did not pursue this remedy. He depones that upon deliberation of the matter at NEC, a decision was made to expel him from the Union all together.
17. He claims that while on suspension the Petitioner broke into the Mwingi Branch office and took a document and Ksh.63,000/-. He states that this matter was reported to the police.
18. It is averred that later on, the Petitioner vide a letter dated 24 th September 2024 and received on 25 th November 2025, sought to appeal the resolution of the Branch Executive Committee.
19. He avers that the NEC in its meeting dated 2 nd December 2024 resolved to expel the Petitioner from the Union due to his professional misconduct and the same communicated to the 1 st Respondent on 20 th December 2024. This decision was subsequently ratified on 10 th December 2024 at the National Delegates Conference.
20. He avers that the Petitioner failed to attend the National Delegates Conference in which the decision was made despite being aware of it. Equally, that the Petitioner has neglected to appeal the decision.
21. The Petitioner is faulted for inordinate delay as he waited 7 months to challenge his expulsion and right when the elections, which are time bound, are to be carried out. Further to this, he argues that the Petitioner having not paid the 2 nd Respondent’s monthly subscription fees for more than 30 months, is not eligible for election as an officer as provided under Article 10(4) of the Constitution.
22. He claims that the Petitioner has not come to Court with clean hands in this matter. Furthermore, in the circumstances, he asserts that the Petitioner has not satisfied the threshold for grant of conservatory orders.
The Preliminary Objection
23. The 2 nd , 3 rd and 4 th Respondents in opposition to the Petition filed a Preliminary Objection dated 23 rd February 2026. They oppose the Petition on the grounds that:
i. This Court lacks jurisdiction to entertain this Petition as the same contravenes Article 162 (2) (a) of the Constitution, Section 87 (i) & (2) of the Employment Act, 2007 as revised in 2012 and Section (4) (1) of the Employment and Labour Relations Court Act Cap 8e which give exclusive jurisdiction on labour relation matters.
ii. The Petition herein ought to be struck out in limine.
Petitioner’s Submissions
24. Gichaba and Company Advocates for the Petitioner filed submissions dated 16 th February 2026 where the issues for determination were identified as: whether this Court has Jurisdiction to hear and determine the Petition and whether the Petitioner has met the threshold for grant of conservatory orders .
25. On the first issue, Counsel submitted that Articles 23 and 165 of the Constitution vests this Court with jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Furthermore, the jurisdiction to determine questions on whether anything said to be done under the authority of the Constitution or any law is inconsistent with, or in contravention of the Constitution.
26. In this matter, Counsel submitted that the Petitioner’s key contention is that the 2 nd , 3 rd and 4 th Respondent’s decision to expel him as a member of the 2 nd Respondent violated his constitutional rights under Article 36 and 41 of the Constitution. This is argued to be a limitation of the Petitioner’s fundamental rights. Accordingly, Counsel underscored that the Petitioner had properly invoked the jurisdiction of this Court, under Articles 23 and 165 of the Constitution.
27. Reliance was placed in Hakizimana Abdoul Abdulkarim vs Arrow Motors (EA) Ltd & another (2017) eKLR where it was held that:
“A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute…When determining whether an argument raises a constitutional issue, the court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the court to consider Constitutional rights or values…..”
28. On the second issue, Counsel stated that the principles of issuance of conservatory orders were outlined in Board of Management of Uhuru Secondary School Vs City County Director of Education and 2 others [2015] eKLR as follows:
“a) The applicant ought to demonstrate an arguable prima facie case with a likelihood of success, and that in the absence of the conservatory orders sought, he is likely to suffer prejudice as a result of the violation or threatened violation of the constitution;
b) Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success, the court is then to decide whether a grant or denial of the conservatory relief will enhance the constitutional values and objects of the specific right or freedom of Bill of rights;
c) Thirdly, flowing from the first two principles is whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure as far as possible that any transitional motions before the court to do not render nugatory the ultimate end of justice;
d) The court must consider conservatory orders also in the face of public interest dogma; and
e) Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicant’s credentials, the prima facie correctness of the availed information, whether the grievances are genuine, legitimate, and deserving, and finally, whether the grievances and allegations are grave and serious or merely vague and reckless.”
29. Like dependence was placed in Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR, uleiman Vs Amboseli Resort Limited [2004] 2 KLR 590 and Gatirau Peter Munya – Vs Dickson Mwenda Kithinji & 2 others [2014] eKLR .
30. Counsel submitted that the Petition raises serious, arguable and non-frivolous constitutional questions on violation of Article 24, 36, 40, 41, 47 and 50 of the Constitution. Counsel stressed that the issues raised go to the constitutionality of the irregularity of the Petitioner’s expulsion by the Respondents and the Petitioner’s rights under the Constitution to join, form and participate in union activities of his choice.
31. As such, Counsel emphasized that these issues merit full interrogation by this Court. To buttress this point reliance was placed in Center for rights education & awareness (creaw) & 7 others vs Attorney General Petition No. 16 of 2011 where it was held that:
“At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the Court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.”
32. Counsel further submitted that the Petitioner stands to suffer prejudice since as its stands, he cannot participate in the union activities of the 2 nd Respondent including vying for the election owing to the purported illegal expulsion. As such, Counsel argued that Petitioner will suffer irreparable prejudice as he will have been denied an opportunity to participate in the elections based on the arbitrary decision undertaken by the Respondents herein. Counsel relying in Center for rights education & awareness (creaw) (supra) noted that these circumstances constitutes a real and imminent prejudice arising from the alleged violation of constitutional rights which warrants interim protection.
33. Equally, Counsel argued that the Petition will be rendered nugatory if these orders are not issued since his rights under Article 36 and 41 of the Constitution will have been curtailed since the elections scheduled for 28 th February 2026 would have occurred. In light of this, Counsel argued that the Petitioner had satisfied the threshold for grant of conservatory orders.
2 nd , 3 rd and 4 th Respondents Submissions
34. The 2 nd , 3 rd and 4 th Respondents through Nyamu and Nyamu Company Advocates filed two sets of submissions dated 19 th February 2026 and 24 th February 2026 on the Application and Preliminary Objection respectively.
35. Regarding the Application, Counsel submitted on the onset that the Petitioner had failed to show that there is an arguable case to be answered by the Respondents or that his rights were infringed in the process. Reliance was placed in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (2003) eKLR where it was held that:
"A prima facie case in a civil application includes but is not confined to a genuine and arguable case". It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter."
36. Counsel argued that the Petitioner’s account was misleading as he failed to appeal the decision within two months as stipulated under Article 3 (12) of the KNUT Constitution 2022. Counsel noted that the Petitioner appealed months later on 24 th September 2025.
37. Equally, Counsel stated that as per the adduced minutes, the Petitioner was present at the meeting where he was suspended. Counsel argued that the Petitioner signed the registration form for the meeting and was afforded an opportunity to speak on his misconduct, which he did. Counsel as well submitted that the Petitioner falsely averred that he was issued with the expulsion letter on 25 th May 2025 when indeed it was issued on 20 th December 2024.
38. Counsel further submitted that the Petitioner in seeking to bar the elections, raises 7 months later thus is guilty of delay. Counsel added that the Petitioner had forfeited his right to challenge the decision to expel him by the delay in prosecuting his case. Nonetheless it was argued that the Petitioner is not eligible for the election as an officer, as does not meet the requirements of Article 10 (4) of the KNUT Constitution 2022 which provides that no one shall hold office in any Branch who has not paid the annual subscription for the preceding year.
39. Reliance was placed in Gatirau Munya (supra) where it was held that:
“Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.”
40. Like dependence was placed in Board of Management of Uhuru Secondary School (supra).
41. Furthermore, Counsel submitted that the Petitioner had failed to show any alleged losses he may suffer and if any would not be able to be compensated for by way of damages if the conservatory orders are not granted. Counsel posited that the damage envisioned by the Petitioner is unfounded given that he is not a member of the 2 nd Respondent. Counsel submitted that the Court in Nguruman Limited v Bonde Nielsen & 2 Others (2014) eKLR underscored that speculative injury will not do, there must be more than an unfounded fear or apprehension on the part of the Petitioner.
42. Comparable reliance was placed in Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 8 others (Interested Parties); Centre for Intellectual Property & Information Technology (Proposed Amicus Curiae) Petition Nos. 56, 58 & 59 of 2019 [2019J eKLR .
43. Counsel submitted that the Petitioner having been aggrieved by the decision of the Branch Executive Committee to suspend him, he ought to have appealed the decision to the NEC within two months, as envisioned under Article 3(12) of the KNUT Constitution (2022). Counsel stressed that given that the Branch Executive Committee decision was made in the Petitioner’s presence on 3 rd May 2023, the Petitioner’s attempt to appeal the decision now without even utilizing the internal dispute resolution amounts to inordinate delay and not in public interest as envisioned for in conservatory orders. Further that, Counsel argued that the right to association as provided under Article 36 of the Constitution was rightfully limited by dint of his actions due to his professional misconduct as an official.
44. Reliance was placed in MSA v KMKA (Civil Application E123 of 2024) [2024) KECA 1222 (KLR) where it was held that:
“Whereas there is no precise measure of what amounts to inordinate delay and whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so, on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. On applying court's mind on the delay, caution is advised for courts not to take the word 'inordinate' in its dictionary meaning, but in the sense of excessive as compared to normality."
45. Further reliance was placed on Benjoh Amalgated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR .
46. In conclusion, Counsel noted that conservatory orders are discretionary in nature. Counsel urged the Court to find that the Petitioner had not come to Court with clean hands thus not deserving of these orders. Counsel added that the Petitioner not being a member of the 2 nd Respondent should not affect the rights of the members without dealing with his reinstatement as a member and paying dues for the preceding year.
47. Turning to the Preliminary Objection, Counsel submitted that the issues raised in the Petition revolving around the Petitioner’s suspension and expulsion from the 2 nd Respondent are labour relation matters which jurisdiction is granted to the Employment and Labour Relations Court under Article 162(1) and (2)(a) of the Constitution.
48. Counsel submitted that the dispute stipulated herein is covered under Section 12(i)(g) of the Employment and Labour Relations Court Act. For this reason, Counsel argued that this Court’s jurisdiction is ousted under Article 165(5) of the Constitution.
49. Reliance was placed in Republic v Chengo & 2 others (Petition 5 of 2015) [2017] KESC 15 (KLR) where it was held that:
“In addition to the above, we note that pursuant to article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and the ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of courts, with suis generis jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous courts and exercise different and distinct jurisdictions. As article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.”
50. Further cited in support of the above argument was the case of Constitutional Petition No. E156 of 2024, Clifford Onyango Odhiambo versus the Attorney General & others .
Analysis and Determination
51. Having regard to the pleadings and submissions of Counsel, I find the following to be the issues for determination:
i. Whether the 2 nd , 3 rd and 4 th Respondent’s Preliminary Objection is merited.
ii. Whether or not the Petitioner’s Application for conservatory orders should be allowed.
Whether the 2 nd , 3 rd and 4 th Respondent’s Preliminary Objection is merited.
52. The threshold of a Preliminary Objection was summarized in Mukisa Biscuit Manufacturers Ltd -vs- Westend Distributors Ltd, (1969) EA 696 page 700 as follows: -
'So far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the 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.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion…”
53. Likewise, the Court in Dismas Wambola v Cabinet Secretary, Treasury & 5 others [2017] KEHC 8777 (KLR) observed as follows:
“…a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.
In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts.”
54. The Respondents Counsel contended that this is not the proper forum for the adjudication of this dispute. They vehemently argued that the proper Court to ventilate the grievances of this nature is the Employment and Labour Relations Court. In reply, the Counsel for the Petitioner countered that the matter herein addresses the violation of rights and fundamental freedoms under the Bill of rights which this Court is empowered to interrogate under Article 165 (3) (b) and Article 23 of the Constitution.
55. A jurisdictional issue raises ‘a pure point of law’ for when it is raised successfully, the Court cannot venture into the merits of the matter. It must down its tools.
56. Special courts are made reference to by Article 162(2) of the Constitution as follows:
1) The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2).
2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
a) employment and labour relations; and
b) the environment and the use and occupation of, and title to, land.
3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
57. To give effect to this Article, the Parliament enacted the Employment and Labour Relations Act . Section 12 defines the jurisdiction of the Court as follows:
The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law, which extends jurisdiction to the Court relating to employment and labour relations including—
a) disputes relating to or arising out of employment between an employer and an employee;
b) disputes between an employer and a trade union;
c) disputes between an employers’ organisation and a trade union’s organisation;
d) disputes between trade unions;
e) disputes between employer organisations;
f) disputes between an employers’ organisation and a trade union;
g) disputes between a trade union and a member thereof;
h) disputes between an employer’s organisation or a federation and a member thereof;
i) disputes concerning the registration and election of trade union officials; and
j) disputes relating to the registration and enforcement of collective agreements.
58. The High Court has expansive jurisdiction hear and determine constitutional disputes including questions relati
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