REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT LODWAR
CONSTITUTIONAL PETITION NO. E001 OF 2026
PAULINE LOMORUKAI LOCHERIA…………………………………....................PETITIONER
VERSUS
THE KENYA NATIONAL UNION OF TEACHERS (KNUT)………………….1 ST RESPONDENT
THE SECRETARY GENERAL, KNUT……………………………....................2 ND RESPONDNT
PETER EVERISTUS EWAAT LONGOLI……………………………………….3 RD RESPONDENT
RULING
1. The Court is called upon to determine jurisdictional challenge in the face of a Constitutional Petition arising from an intra-union electoral dispute. Before the court is a Notice of Preliminary Objection dated 23 rd March 2026, filed by the 1 st , 2 nd , and 3 rd Respondents. The objection seeks to terminate the proceedings herein in limine , primarily on the ground that the High Court lacks the subject-matter jurisdiction to adjudicate upon the grievances raised by the Petitioner, which the Respondents contend are strictly within the province of the Employment and Labour Relations Court.
2. The Petitioner approached this Court by way of a Constitutional Petition filed on 12 th March 2026 challenging the decision of the 1 st Respondent and its officials to disqualify her from contesting the Turkana Branch elections for the position of Branch Executive Secretary. The Petitioner contemporaneously moved the Court on 12 th March 2026 with a Notice of Motion filed under a Certificate of Urgency seeking immediate conservatory orders to stay the elections which were scheduled for 14 th March 2026.
3. On 13 th March 2026, the court upon certifying the matter urgent and in order to preserve the status quo and the substratum of the Petition, granted an interim conservatory order stopping the said KNUT Turkana Branch elections which were scheduled for 14 th March 2026. The petitioner was then directed to serve the pleadings forthwith so that the respondents could file their responses within six days, and the matter was set for an inter-partes hearing on 23 rd March 2026.
4. On the 23 rd March 2026, the Petitioner’s advocate on record, Mr. Nyakundi G. Stephen, failed to attend court and in his absence and that of the petitioner, the Court vacated the interim conservatory orders issued on 13 th March 2026. The Petitioner immediately filed another Notice of Motion on the same day seeking the reinstatement of the 13 th March conservatory orders. She argued that the failure to attend the virtual hearing was not deliberate but excusable and that the underlying grievance, the infringement of her right to participate in the election, remained unresolved. That application was again considered by the court ex parte and interim orders granted.
5. In response to the petition and the Notices of Motion, the 1 st , 2 nd , and 3 rd Respondents filed the Notice of Preliminary Objection dated 23 rd March 2026, now the subject of this ruling. The Respondents, rather than arguing the merits of the stop of the election, challenged the very foundation of the High Court’s jurisdiction to hear the dispute at all. The Preliminary Objection is predicated on three primary grounds:
i. That the High Court lacks jurisdiction to entertain the Petition as it contravenes Article 162 (2) (a) and Article 165 (5) (b) of the Constitution of Kenya, 2010.
ii. That the matter is governed by Section 87 (1) & (2) of the Employment Act and Section 12 of the Employment and Labour Relations Court Act, which grant exclusive jurisdiction to the specialized Employment and Labour Relations Court (ELRC).
iii. That the Petition is therefore defective and should be struck out in limine, with costs
6. In their submissions dated 26 th March 2026, the Respondent in addressing the threshold of a Preliminary Objection cites the decision of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 and argue that their objection raises a pure point of law. They contend that because the lack of jurisdiction is apparent on the face of the Petitioner’s own pleadings, the Court can and must resolve this point immediately without delving into a factual trial on the merits of the matter.
7. Second, the Respondents submit that Article 162 (2) (a) of the Constitution empowered Parliament to create specialized courts of equal status to the High Court. That Parliament fulfilled this mandate by enacting the Employment and Labour Relations Court Act (ELRC Act). Crucially, they point to Article 165 (5) (b), which acts as a jurisdictional bar, explicitly stating that the High Court shall not have jurisdiction in respect of matters falling within the remit of the specialized courts.
8. Third, they cite Section 12 of the ELRC Act, which operationalizes the constitutional mandate of the court. The Respondents argue that this section clearly covers the present dispute to the extent that Section 12 (1) (g) of ELRC Act relates to disputes between a trade union and a member thereof. Further, that Section 12 (1) (h) of ELRC Act involves disputes concerning the registration and election of trade union officials. The respondents thus contend that since the Petitioner is a member of the union and the dispute concerns her disqualification from a union election, the ELRC has original and exclusive jurisdiction. It is then argued that framing the matter as a Constitutional Petition is a procedural artifice designed to circumvent the specialized rules of the ELRC.
9. Finally, the Respondents emphasize the principle established in Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Limited (1989) KLR and argue that once a court identifies a lack of jurisdiction, it has no discretion to proceed and must down its tools. They further cite the decisions in Hadullo & Another vs Registrar of Trade Unions & 3 Others (2017) eKLR and Alphonse Mwangemi Munga v African Safari Club Ltd (2018) eKLR and argue that using constitutional petitions to resolve what are essentially labour or contractual disputes is an abuse of the court process.
10. There were also further submissions filed on the 27.03.2026 whose object was clearly limited to citing to court the decision in Mike Munyasya Erastus Vs Kenya National Union Of Teachers and Secretary General KNUT and 2 Others (2026) eKLR where it was held that the mere fact that the grievances allege violations of the Bill of Rights does not automatically confer exclusive jurisdiction on the High Court as it is now settled that Specialized Courts are competent to interpret and apply the Constitution including determining the violations of Bill of Rights when the core and the nature of the dispute fall within the scope of their jurisdiction.
11. The respondents thus urged the court to uphold the objection and strike out the petition
12. On her part, the petitioner equally filed submissions dated the 29 th March 2026took the position that a preliminary objection to suffice, it must be grounded on a pure point of law attracting no factual arguments. It is then argued that it is the High Court and not the courts of equal status with primary jurisdiction on questions of violation of right, like here where the rights of the members of Turkana County are involved. It is then added that, while article 162(2)a and section 12 of the Employment and Labour Relations Court enjoys exclusive jurisdiction on labour matters, KNUT (sic) is not confined to ELRC, especially where violation of constitutional rights are concerned. It is contended that in such cases the High Court retains concurrent jurisdiction to entertain the mater.
13. It is further asserted that because the supervisory mandate under article 165(6) has been invoked, the same resides in the High court and not displaced by ELRC. It is contended that supervision of KNUT’s internal dispute resolution lies with the High Court and not ELRC. Specifically, it is asserted that article 165(5)b only bars the High from handling falling strictly within the specialised jurisdiction of article 162 where no substantial constitutional violations are alleged. In support of such position, the decision in Mutsembi Vs Kenya National Union of Teacher, Kakamega South Branch (2026) HEKC 392 (KLR) is cited to support the fact that the High Court actually entertained and determined a petition challenging suspension without hearing the member. There was then the stress of necessity it being said that Lodwar does not have a wide range of courts to chose from hence the petitioner should be allowed to proceed before the High Court.
14. It was also submitted that there is public interest involved in the matter and the decision in Kaikai vs KNUT (2024) KEHC 16804 (KRL), a defamation matter was cited as an example where the High court and not ELRC was the proper forum. The petitioner thus deems the Preliminary Objection unmerited and prays for its dismissal.
15. The court, having carefully perused the Petition, the Respondents’ preliminary objection and the respective submissions, finds the only issue for determination to be whether this Court has the jurisdiction to hear and determine a dispute concerning the disqualification of a candidate in a trade union election when that dispute is brought as a Constitutional Petition.
16. To fully appreciate the weight of the issue for determination, the court finds it necessary to traverse the factual and procedural landscape of the dispute. The dispute follows the KNUT Turkana Branch elections, which were scheduled to take place on 14 th March 2026. The Petitioner had formally presented her candidature for the position of Branch Executive Secretary. According to her, the electoral process began on or about 11 th February 2026, when the 3 rd Respondent issued a notice to members announcing the upcoming branch elections. This notice stipulated that only bona fide KNUT members would be allowed to vote and that teachers paying agency fees were ineligible.
17. She deposes that on 28 th February 2026, the 3 rd Respondent authored a letter to the KNUT National Office alleging manipulation of membership records and demanding the registration of approximately three hundred teachers shortly before the election. The Petitioner characterizes this as an attempt to introduce new members to influence the outcome, directly contradicting the 3 rd Respondent’s own earlier notice.
18. On 6 th March 2026, she was informed to have been barred from contesting the election on two specific allegations: first, that her membership in the union was below the mandatory three-year threshold; and second, that she was paying agency fees rather than full union dues. The Petitioner denies these allegations, asserting that she has consistently been a member and has served as a Woman Representative, which would be impossible if she were merely an agency fee payer.
19. She argues that this disqualification was orchestrated by her electoral opponent, the 3 rd Respondent, who had allegedly assumed control of the nomination process. She points to a communication issued on 6 th March 2026 by the 3 rd Respondent, which allocated nomination time slots to different candidate teams, including Team Safina associated with the 3 rd Respondent and her team, Team VET . She contends that it is a violation of the principles of natural justice for a candidate to supervise the nomination of his opponents.
Analysis and Determination
20. It is now well-established, since Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 , that a preliminary objection raises a pure point of law argued on the assumption that the facts pleaded by the opposing party are correct. This principle has been consistently applied in Kenyan jurisprudence, including by the Supreme Court in Samuel Waweru vs Geoffrey Muhoro Mwangi [2016] eKLR and Steel Structures Limited vs Isaac Muthoni Mwobobia (2021) eKLR , where the courts held that an objection which necessitates the interrogation of evidence or resolution of contested facts cannot properly be taken as a preliminary objection. For instance, issues such as the existence of an employment relationship, being inherently factual, fall outside the scope of a preliminary objection.
21. In the instant and flowing from background of the case, the jurisdictional facts are not in dispute. The Petitioner pleads that she is a member of KNUT and that she was disqualified from a KNUT election. She further pleads that the 3 rd Respondent is a union official and a candidate. The question of whether the dispute disclosed by these facts falls for determination by the High Court or the ELRC is a crisp pure point of law. Therefore, the court holds that the objection meets the threshold set by the Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 and that the Notice of Preliminary Objection dated 23 rd March 2026 is properly before this Court for determination.
22. Having held so, the Constitution of Kenya, 2010, in its article 165 (3) grants the High Court original jurisdiction very widely including the determination whether or not a right or fundamental freedom has been violated. That jurisdiction is however not absolute because article 165 (5) explicitly stipulates that the High Court shall not have jurisdiction in respect of matters— (b) falling within the jurisdiction of the courts contemplated in Article 162 (2).” Article 162 (2) (a) establishes the Employment and Labour Relations Court (ELRC) as a specialized court with the same status as the High Court.
23. The effect of the foregoing constitutional provisions is to establish mutually exclusive jurisdictions over specific subject matters. This position was authoritatively settled in Republic vs Karisa Chengo & 2 Others [2017] eKLR , where the Supreme Court held that the High Court cannot assume jurisdiction reserved for courts of equal status established under Article 162(2), as such action would be ultra vires the Constitution. This doctrinal separation was further reinforced in National Social Security Fund Board of Trustees vs Kenya Tea Growers Association & 14 Others [2018] eKLR , where the Court of Appeal emphasized that the jurisdiction of the Employment and Labour Relations Court is strictly confined to disputes arising from employer–employee relationships, thereby equally limiting the High Court from encroaching upon such subject matter..
24. Turning into the substance of the instant contention, the Petitioner’s primary argument is that she is seeking to enforce constitutional rights, specifically her labour rights under Article 41 and her right to fair administrative action under Article 47. She argues that the High Court is the guardian of the Constitution and therefore must have jurisdiction over any matter involving a violation of the Bill of Rights.
25. The court holds that this argument, while principled, overlooks the subject-matter test established in Geoffrey Makana Asanyo vs Nakuru Water and Sanitation Services Company & Another [2019] eKLR , and reiterated by the Court of Appeal in Prof. Daniel N. Mugendi vs Kenyatta University & 3 Others [2013] eKLR . The courts affirmed that the jurisdiction of the Employment and Labour Relations Court is determined by the substance of the dispute, and that Court shall not have jurisdiction on matters falling within the jurisdiction of the courts contemplated under article 162(2).
26. The jurisdiction of a court is determined by the essential nature of the dispute, not how the Petitioner chooses to label it. If the root of the problem is a trade union election, then it is a labour relations matter regardless of whether the Petitioner calls it a Constitutional Petition or a Statement of Claim.
27. Section 12 of the ELRC Act enumerates the disputes falling under the exclusive original and appellate jurisdiction of the ELRC. Among them is the disputes between a trade union and a member, registration and election of trade union officials, Interpretation of the Union’s Constitution, and, administrative actions within the Union.
28. Herein, it is not in dispute that the Petitioner is a member of the 1 st Respondent, KNUT. The core grievance is her disqualification from the Lodwar Branch election. The Petitioner not only challenges the interpretation of the 3-year membership rule but also the fairness of the nomination process. Accordingly, it is manifest that the entirety of the Petitioner’s grievance falls squarely within the specialized remit of the ELRC which is fully equipped to handle constitutional arguments within this framework. Indeed, the ELRC’s mandate includes the power to grant prerogative orders including Certiorari or Mandamus, declaratory orders, and/or conservatory orders, the very reliefs the Petitioner seeks here.
29. By the constitutional design, parties are bound to comply with procedures provided by statute before turning to the High Court’s general jurisdiction. For trade union elections, there is an established specific procedural track under the Trade Union Elections (Election Petition) Rules 2014 and the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions 2025. The court notes that compliance with these rules is a pure point of law and that a failure to follow them makes a petition dead on arrival. [1]
30. The court holds that by bringing this matter to the High Court as a general constitutional petition, the Petitioner has avoided the specific joining requirements and the detailed disclosure requirements mandated by the ELRC for union disputes. This procedural bypass undermines the efficiency and expertise that specialized courts were designed to provide. Twisting labour disputes into constitutional issues is a waste of judicial time and resources. [2]
31. In upshot, the principle remains clear: no court can arrogate to itself jurisdiction that the Constitution has expressly denied it or reserved for another forum. Jurisdiction is the bloodline of any judicial action; without it, any order issued by this Court, including the conservatory order of 13 th March 2026, are a legal nullity.
32. The court finds and holds that the dispute involves a trade union and its member concerning the disqualification of a candidate in a branch election. Such matters are expressly reserved for the Employment and Labour Relations Court under Section 12 (1) (g) and (h) of the ELRC Act. Further, Article 165 (5) (b) of the Constitution explicitly strips the High Court of jurisdiction over matters that fall within the remit of the specialized courts established under Article 162 (2).
33. Consequently, the court finds that the High Court lacks the jurisdiction to entertain this Petition. Following the enunciation of the Court of Appeal in the Lillian S case, this Court must down its tools and proceed no further.
34. The Preliminary Objection dated 23 rd March 2026 is hereby upheld with the axiomatic consequence that any interim conservatory orders issued by this court are hereby vacated. The Petitioner is at liberty to pursue her claim in the appropriate Court.
35. Being a dispute within the college of teaching professionals, the court makes no orders as to costs.
36. Let the court file be closed and any date assigned to the matter in the futher be vacated.
Dated, signed and delivered virtually this 1 st day of April 2026
Patrick J O Otieno
Judge
FOOTNOTES
[1] Bichanga & 2 Others vs Kenya National Union of Teachers (KNUT) [2015] eKLR
[2] Hadullo vs Registrar of Trade Unions & Another [2018] eKLR
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IN THE HIGH COURT OF KENYA AT LODWAR
CONSTITUTIONAL PETITION NO. E001 OF 2026
PAULINE LOMORUKAI LOCHERIA…………………………………....................PETITIONER
VERSUS
THE KENYA NATIONAL UNION OF TEACHERS (KNUT)………………….1 ST RESPONDENT
THE SECRETARY GENERAL, KNUT……………………………....................2 ND RESPONDNT
PETER EVERISTUS EWAAT LONGOLI……………………………………….3 RD RESPONDENT
RULING
1. The Court is called upon to determine jurisdictional challenge in the face of a Constitutional Petition arising from an intra-union electoral dispute. Before the court is a Notice of Preliminary Objection dated 23 rd March 2026, filed by the 1 st , 2 nd , and 3 rd Respondents. The objection seeks to terminate the proceedings herein in limine , primarily on the ground that the High Court lacks the subject-matter jurisdiction to adjudicate upon the grievances raised by the Petitioner, which the Respondents contend are strictly within the province of the Employment and Labour Relations Court.
2. The Petitioner approached this Court by way of a Constitutional Petition filed on 12 th March 2026 challenging the decision of the 1 st Respondent and its officials to disqualify her from contesting the Turkana Branch elections for the position of Branch Executive Secretary. The Petitioner contemporaneously moved the Court on 12 th March 2026 with a Notice of Motion filed under a Certificate of Urgency seeking immediate conservatory orders to stay the elections which were scheduled for 14 th March 2026.
3. On 13 th March 2026, the court upon certifying the matter urgent and in order to preserve the status quo and the substratum of the Petition, granted an interim conservatory order stopping the said KNUT Turkana Branch elections which were scheduled for 14 th March 2026. The petitioner was then directed to serve the pleadings forthwith so that the respondents could file their responses within six days, and the matter was set for an inter-partes hearing on 23 rd March 2026.
4. On the 23 rd March 2026, the Petitioner’s advocate on record, Mr. Nyakundi G. Stephen, failed to attend court and in his absence and that of the petitioner, the Court vacated the interim conservatory orders issued on 13 th March 2026. The Petitioner immediately filed another Notice of Motion on the same day seeking the reinstatement of the 13 th March conservatory orders. She argued that the failure to attend the virtual hearing was not deliberate but excusable and that the underlying grievance, the infringement of her right to participate in the election, remained unresolved. That application was again considered by the court ex parte and interim orders granted.
5. In response to the petition and the Notices of Motion, the 1 st , 2 nd , and 3 rd Respondents filed the Notice of Preliminary Objection dated 23 rd March 2026, now the subject of this ruling. The Respondents, rather than arguing the merits of the stop of the election, challenged the very foundation of the High Court’s jurisdiction to hear the dispute at all. The Preliminary Objection is predicated on three primary grounds:
i. That the High Court lacks jurisdiction to entertain the Petition as it contravenes Article 162 (2) (a) and Article 165 (5) (b) of the Constitution of Kenya, 2010.
ii. That the matter is governed by Section 87 (1) & (2) of the Employment Act and Section 12 of the Employment and Labour Relations Court Act, which grant exclusive jurisdiction to the specialized Employment and Labour Relations Court (ELRC).
iii. That the Petition is therefore defective and should be struck out in limine, with costs
6. In their submissions dated 26 th March 2026, the Respondent in addressing the threshold of a Preliminary Objection cites the decision of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 and argue that their objection raises a pure point of law. They contend that because the lack of jurisdiction is apparent on the face of the Petitioner’s own pleadings, the Court can and must resolve this point immediately without delving into a factual trial on the merits of the matter.
7. Second, the Respondents submit that Article 162 (2) (a) of the Constitution empowered Parliament to create specialized courts of equal status to the High Court. That Parliament fulfilled this mandate by enacting the Employment and Labour Relations Court Act (ELRC Act). Crucially, they point to Article 165 (5) (b), which acts as a jurisdictional bar, explicitly stating that the High Court shall not have jurisdiction in respect of matters falling within the remit of the specialized courts.
8. Third, they cite Section 12 of the ELRC Act, which operationalizes the constitutional mandate of the court. The Respondents argue that this section clearly covers the present dispute to the extent that Section 12 (1) (g) of ELRC Act relates to disputes between a trade union and a member thereof. Further, that Section 12 (1) (h) of ELRC Act involves disputes concerning the registration and election of trade union officials. The respondents thus contend that since the Petitioner is a member of the union and the dispute concerns her disqualification from a union election, the ELRC has original and exclusive jurisdiction. It is then argued that framing the matter as a Constitutional Petition is a procedural artifice designed to circumvent the specialized rules of the ELRC.
9. Finally, the Respondents emphasize the principle established in Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Limited (1989) KLR and argue that once a court identifies a lack of jurisdiction, it has no discretion to proceed and must down its tools. They further cite the decisions in Hadullo & Another vs Registrar of Trade Unions & 3 Others (2017) eKLR and Alphonse Mwangemi Munga v African Safari Club Ltd (2018) eKLR and argue that using constitutional petitions to resolve what are essentially labour or contractual disputes is an abuse of the court process.
10. There were also further submissions filed on the 27.03.2026 whose object was clearly limited to citing to court the decision in Mike Munyasya Erastus Vs Kenya National Union Of Teachers and Secretary General KNUT and 2 Others (2026) eKLR where it was held that the mere fact that the grievances allege violations of the Bill of Rights does not automatically confer exclusive jurisdiction on the High Court as it is now settled that Specialized Courts are competent to interpret and apply the Constitution including determining the violations of Bill of Rights when the core and the nature of the dispute fall within the scope of their jurisdiction.
11. The respondents thus urged the court to uphold the objection and strike out the petition
12. On her part, the petitioner equally filed submissions dated the 29 th March 2026took the position that a preliminary objection to suffice, it must be grounded on a pure point of law attracting no factual arguments. It is then argued that it is the High Court and not the courts of equal status with primary jurisdiction on questions of violation of right, like here where the rights of the members of Turkana County are involved. It is then added that, while article 162(2)a and section 12 of the Employment and Labour Relations Court enjoys exclusive jurisdiction on labour matters, KNUT (sic) is not confined to ELRC, especially where violation of constitutional rights are concerned. It is contended that in such cases the High Court retains concurrent jurisdiction to entertain the mater.
13. It is further asserted that because the supervisory mandate under article 165(6) has been invoked, the same resides in the High court and not displaced by ELRC. It is contended that supervision of KNUT’s internal dispute resolution lies with the High Court and not ELRC. Specifically, it is asserted that article 165(5)b only bars the High from handling falling strictly within the specialised jurisdiction of article 162 where no substantial constitutional violations are alleged. In support of such position, the decision in Mutsembi Vs Kenya National Union of Teacher, Kakamega South Branch (2026) HEKC 392 (KLR) is cited to support the fact that the High Court actually entertained and determined a petition challenging suspension without hearing the member. There was then the stress of necessity it being said that Lodwar does not have a wide range of courts to chose from hence the petitioner should be allowed to proceed before the High Court.
14. It was also submitted that there is public interest involved in the matter and the decision in Kaikai vs KNUT (2024) KEHC 16804 (KRL), a defamation matter was cited as an example where the High court and not ELRC was the proper forum. The petitioner thus deems the Preliminary Objection unmerited and prays for its dismissal.
15. The court, having carefully perused the Petition, the Respondents’ preliminary objection and the respective submissions, finds the only issue for determination to be whether this Court has the jurisdiction to hear and determine a dispute concerning the disqualification of a candidate in a trade union election when that dispute is brought as a Constitutional Petition.
16. To fully appreciate the weight of the issue for determination, the court finds it necessary to traverse the factual and procedural landscape of the dispute. The dispute follows the KNUT Turkana Branch elections, which were scheduled to take place on 14 th March 2026. The Petitioner had formally presented her candidature for the position of Branch Executive Secretary. According to her, the electoral process began on or about 11 th February 2026, when the 3 rd Respondent issued a notice to members announcing the upcoming branch elections. This notice stipulated that only bona fide KNUT members would be allowed to vote and that teachers paying agency fees were ineligible.
17. She deposes that on 28 th February 2026, the 3 rd Respondent authored a letter to the KNUT National Office alleging manipulation of membership records and demanding the registration of approximately three hundred teachers shortly before the election. The Petitioner characterizes this as an attempt to introduce new members to influence the outcome, directly contradicting the 3 rd Respondent’s own earlier notice.
18. On 6 th March 2026, she was informed to have been barred from contesting the election on two specific allegations: first, that her membership in the union was below the mandatory three-year threshold; and second, that she was paying agency fees rather than full union dues. The Petitioner denies these allegations, asserting that she has consistently been a member and has served as a Woman Representative, which would be impossible if she were merely an agency fee payer.
19. She argues that this disqualification was orchestrated by her electoral opponent, the 3 rd Respondent, who had allegedly assumed control of the nomination process. She points to a communication issued on 6 th March 2026 by the 3 rd Respondent, which allocated nomination time slots to different candidate teams, including Team Safina associated with the 3 rd Respondent and her team, Team VET . She contends that it is a violation of the principles of natural justice for a candidate to supervise the nomination of his opponents.
Analysis and Determination
20. It is now well-established, since Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 , that a preliminary objection raises a pure point of law argued on the assumption that the facts pleaded by the opposing party are correct. This principle has been consistently applied in Kenyan jurisprudence, including by the Supreme Court in Samuel Waweru vs Geoffrey Muhoro Mwangi [2016] eKLR and Steel Structures Limited vs Isaac Muthoni Mwobobia (2021) eKLR , where the courts held that an objection which necessitates the interrogation of evidence or resolution of contested facts cannot properly be taken as a preliminary objection. For instance, issues such as the existence of an employment relationship, being inherently factual, fall outside the scope of a preliminary objection.
21. In the instant and flowing from background of the case, the jurisdictional facts are not in dispute. The Petitioner pleads that she is a member of KNUT and that she was disqualified from a KNUT election. She further pleads that the 3 rd Respondent is a union official and a candidate. The question of whether the dispute disclosed by these facts falls for determination by the High Court or the ELRC is a crisp pure point of law. Therefore, the court holds that the objection meets the threshold set by the Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 and that the Notice of Preliminary Objection dated 23 rd March 2026 is properly before this Court for determination.
22. Having held so, the Constitution of Kenya, 2010, in its article 165 (3) grants the High Court original jurisdiction very widely including the determination whether or not a right or fundamental freedom has been violated. That jurisdiction is however not absolute because article 165 (5) explicitly stipulates that the High Court shall not have jurisdiction in respect of matters— (b) falling within the jurisdiction of the courts contemplated in Article 162 (2).” Article 162 (2) (a) establishes the Employment and Labour Relations Court (ELRC) as a specialized court with the same status as the High Court.
23. The effect of the foregoing constitutional provisions is to establish mutually exclusive jurisdictions over specific subject matters. This position was authoritatively settled in Republic vs Karisa Chengo & 2 Others [2017] eKLR , where the Supreme Court held that the High Court cannot assume jurisdiction reserved for courts of equal status established under Article 162(2), as such action would be ultra vires the Constitution. This doctrinal separation was further reinforced in National Social Security Fund Board of Trustees vs Kenya Tea Growers Association & 14 Others [2018] eKLR , where the Court of Appeal emphasized that the jurisdiction of the Employment and Labour Relations Court is strictly confined to disputes arising from employer–employee relationships, thereby equally limiting the High Court from encroaching upon such subject matter..
24. Turning into the substance of the instant contention, the Petitioner’s primary argument is that she is seeking to enforce constitutional rights, specifically her labour rights under Article 41 and her right to fair administrative action under Article 47. She argues that the High Court is the guardian of the Constitution and therefore must have jurisdiction over any matter involving a violation of the Bill of Rights.
25. The court holds that this argument, while principled, overlooks the subject-matter test established in Geoffrey Makana Asanyo vs Nakuru Water and Sanitation Services Company & Another [2019] eKLR , and reiterated by the Court of Appeal in Prof. Daniel N. Mugendi vs Kenyatta University & 3 Others [2013] eKLR . The courts affirmed that the jurisdiction of the Employment and Labour Relations Court is determined by the substance of the dispute, and that Court shall not have jurisdiction on matters falling within the jurisdiction of the courts contemplated under article 162(2).
26. The jurisdiction of a court is determined by the essential nature of the dispute, not how the Petitioner chooses to label it. If the root of the problem is a trade union election, then it is a labour relations matter regardless of whether the Petitioner calls it a Constitutional Petition or a Statement of Claim.
27. Section 12 of the ELRC Act enumerates the disputes falling under the exclusive original and appellate jurisdiction of the ELRC. Among them is the disputes between a trade union and a member, registration and election of trade union officials, Interpretation of the Union’s Constitution, and, administrative actions within the Union.
28. Herein, it is not in dispute that the Petitioner is a member of the 1 st Respondent, KNUT. The core grievance is her disqualification from the Lodwar Branch election. The Petitioner not only challenges the interpretation of the 3-year membership rule but also the fairness of the nomination process. Accordingly, it is manifest that the entirety of the Petitioner’s grievance falls squarely within the specialized remit of the ELRC which is fully equipped to handle constitutional arguments within this framework. Indeed, the ELRC’s mandate includes the power to grant prerogative orders including Certiorari or Mandamus, declaratory orders, and/or conservatory orders, the very reliefs the Petitioner seeks here.
29. By the constitutional design, parties are bound to comply with procedures provided by statute before turning to the High Court’s general jurisdiction. For trade union elections, there is an established specific procedural track under the Trade Union Elections (Election Petition) Rules 2014 and the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions 2025. The court notes that compliance with these rules is a pure point of law and that a failure to follow them makes a petition dead on arrival. [1]
30. The court holds that by bringing this matter to the High Court as a general constitutional petition, the Petitioner has avoided the specific joining requirements and the detailed disclosure requirements mandated by the ELRC for union disputes. This procedural bypass undermines the efficiency and expertise that specialized courts were designed to provide. Twisting labour disputes into constitutional issues is a waste of judicial time and resources. [2]
31. In upshot, the principle remains clear: no court can arrogate to itself jurisdiction that the Constitution has expressly denied it or reserved for another forum. Jurisdiction is the bloodline of any judicial action; without it, any order issued by this Court, including the conservatory order of 13 th March 2026, are a legal nullity.
32. The court finds and holds that the dispute involves a trade union and its member concerning the disqualification of a candidate in a branch election. Such matters are expressly reserved for the Employment and Labour Relations Court under Section 12 (1) (g) and (h) of the ELRC Act. Further, Article 165 (5) (b) of the Constitution explicitly strips the High Court of jurisdiction over matters that fall within the remit of the specialized courts established under Article 162 (2).
33. Consequently, the court finds that the High Court lacks the jurisdiction to entertain this Petition. Following the enunciation of the Court of Appeal in the Lillian S case, this Court must down its tools and proceed no further.
34. The Preliminary Objection dated 23 rd March 2026 is hereby upheld with the axiomatic consequence that any interim conservatory orders issued by this court are hereby vacated. The Petitioner is at liberty to pursue her claim in the appropriate Court.
35. Being a dispute within the college of teaching professionals, the court makes no orders as to costs.
36. Let the court file be closed and any date assigned to the matter in the futher be vacated.
Dated, signed and delivered virtually this 1 st day of April 2026
Patrick J O Otieno
Judge
FOOTNOTES
[1] Bichanga & 2 Others vs Kenya National Union of Teachers (KNUT) [2015] eKLR
[2] Hadullo vs Registrar of Trade Unions & Another [2018] eKLR
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