REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
ELRC PETITION E149 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
PETER O. NGOGE T/A
O.P. NGOGE & ASSOCIATE ADVOCATES ………………….. APPLICANT
VERSUS
REV. JOEL KANDIE CHEBII …….…………………….. 1ST RESPONDENT
REGISTRAR OF TRAE UNIONS ………………………. 2ND RESPONDENT
ATTORNEY GENERAL ………………………………….. 3RD RESPONDENT
TAILORS AND TEXTILE WORKERS UNION ………. 4TH RESPONDENT
RULING
1. The Applicant has proffered this Application dated 7th May 2026 seeking orders that:
a. Spent
b. Pending the hearing and determination of the Petition filed herein, the Honourable Court be pleased to grant conservatory orders to stay forthwith the implementation of the amended constitution of the Tailors and Textile Workers Union which was unlawfully revised on the 22nd January 2026 by the 1st Respondent to the detriment of the Applicant and the unionisable members.
c. Further or in the alternative, pending the hearing and determination of the Petition, filed herein, the Honourable Court be pleased to grant conservatory orders prohibiting forthwith the 2nd Respondent herein from registering the said amended constitution of the Tailors and Textile Workers Union as was unlawfully revised on 22nd January 2026 by the 1st Respondent herein.
d. The costs of the Application be provided for.
The Application is based on the Affidavit sworn by the Applicant on 7th May 2026 and on the grounds that: by unilaterally amending the Tailors and Textile Workers Union’s (the Union) constitution without involving the chairman or the members, contrary to Rules 4 and 8 of the union’s constitution, the 1st Respondent contravened Articles 10, 36 and 41 of the Constitution 2010. That the Primary intention of the amendment was to lock the Petitioner out of the race for the position of union’s General Secretary, and ward off competition in the event of the intended appeal against the Judgement of the Court in ELRC Petition No. E005 of 2026, is successful; that Section 31(4)(a) of the Labour Relations Act as read with Rule 11(f) of the Union’s Constitution accords the Petitioner a legal right to join the union as a non-member and challenge the 1st Respondent as the union’s General Secretary; and as such the 1st and 2nd Respondents colluded to hurriedly and clandestinely by-pass the constitution and effect the amendments to ward off competition, and thus, defiling the democratic principles in a civilized state meriting this Court’s urgent intervention.
The 1st Respondent and the Interested Party challenged the Application vide their Replying Affidavit sworn by Rev. Joel Kandie Chebii, the union’s National General Secretary on 15th May 2026, who deposed that the Application had been overtaken by events as the registration of the amended constitution has already taken place. The affiant denied contravening any provision of either the Constitution of Kenya nor the union’s constitution, as the amendments were procedurally and effectively done by the mandated body. He contended that the averments in paragraphs 2 and 3 of the Applicant’s Supporting Affidavit lacked merit and were not true as the Applicant imagined that he was qualified to vie in the union election when he was not and hence the dismissal of ELRC Petition E005 of 2026. He added that the union was mandated to amend its constitution did so and lodged the changes with the Registrar for registration, which was effected on 12th May 2026. He urged that Application was for dismissal for want of merit and by dint of the baselessness of the averments in Paragraph 3 and 4 of the Applicant’s affidavit.
In her affidavit, the 2nd Respondent deposed that she was the Acting Registrar of Trade Unions mandated with the registration and regulation of trade unions, employers' organizations and federations. The affiant stated that the Petitioner's suit had been overtaken by events, was incompetent, misconceived, premature and an abuse of the process of this Honorable Court. She added that the Petitioner was not a member of the Union and would not suffer any irreparable loss by the change of the Constitution. She deposed that Rule 4 of the Union's Constitution as well as Section 27 of the Labour Relations Act 2007 (the Act), provided for an elaborate procedure for amendment of the Interested Party Union's Constitution. She outlined the documents required to be submitted to the Registrar under Section 27(2) of the Labour Relations Act, to be: the notice in the prescribed form signed by the Secretary, a copy of the resolution containing details of the proposed change; and a certificate signed by the Secretary confirming that the resolution was passed in accordance with the Union’s constitution and rules.
The affiant, stated that it was a requirement that upon receipt of the application for amendment of the Constitution, the Registrar commences the statutory process by publishing a Gazette Notice inviting objections from members and interested parties within twenty-one (21) days as per Section 27(4) of the Labour Relations Act. She stated that Section 27(4) expressly provides that after publication of the Gazette Notice; the Registrar shall receive and investigate objections before making any determination on whether to approve or reject the proposed amendments. She deponed that the Registrar subsequently had the power to: refer the matter to the Employment and Labour Relations Court; refuse to accept the proposed amendments; or make any orders deemed appropriate in the circumstances.
The affiant deposed that while conducting an inquiry into the matter, the Applicant prematurely approached the court before decision to register or decline the registration of the amendments to the Union Constitution. She added that it is trite law that where a statute provides a clear procedure for redress, the same ought to be strictly followed before invocation of the Court's jurisdiction. She added that the Petitioner approached this Honorable Court prematurely before exhausting the dispute resolution mechanism expressly provided under Section 27 of the Labour Relations Act. She urged that the instant proceedings had been overtaken by events, and were intended to circumvent the statutory mandate vested upon the Registrar of Trade Unions under the Labour Relations Act. She further urged that the same be dismissed with costs to the Respondent.
In rejoinder, the Petitioner in his Further Affidavits reiterated that procedure was not followed in the amendment of the Constitution, more so Rule 4, 8 and 20 of the Constitution. He deposed that there was no evidence adduced to show that there were made proposals to amend the constitution at least two weeks before the Quinquennial Conference held at NITA Hotel, Athi River on 22nd January 2026. He added that there were no written proposals for the amendment of the Constitution as the proposals were allegedly made orally, by way of ambush for the first time at conference contrary to the said Rule. He contended that the minutes presented to the Registrar showed that the proposal sailed through without a vote by secret ballot.
He contended further that the proposal ought to have been passed to the members through their shop stewards in order to grant them an opportunity to air their views democratically. He directed the Court’s attention to the conference’s agenda, stating that the same was strictly to conduct national elections as per the 1st Respondent’s Circular of 2nd January 2026. He termed the amendment as denial of the member’s right to participate in trade union activities contrary to Articles 10, 36 and 41 (2) (c) of the Constitution of Kenya and sections 4 and 34(2a) of the Labour Relations Act?
The affiant added that aggrieved by the manner in which the proposals were made, the union’s Chairman, Treasurer and Organizing Secretary lodged objections with the Registrar under sections 18 and 27 of the Labour Relations Act. He contended that the amendments birthed the positions of 1st and 2nd Assistants- National General Secretary, now occupied by John Nyaga Ngari and James Cheptirim. He added that by the fact that the occupants were elected at the conference implies that the amendments were unlawfully and clandestinely approved by the Respondents prior to the conference. As such, he rubbished the assertion that the same were approved on 13th May 2026.
The Applicant accused the Registrar of hurriedly, clandestinely and unprocedurally sanitizing and approving the amendments and failure to decide on the objections before victimizing the chairman, treasurer and organizing secretary by suspending them and dismissing them as officers of the union for raising objections. He further contended that he proffers this Petition under Article 258 of the Constitution 2010 on behalf of the Chairman, Treasurer and Organizing Secretary, and that of other members condemned unheard. He added that he also brought it on his behalf as amendment of Rule 11(f) of the constitution blocked him from contesting for General Secretary as an outsider, contrary to section 31(a) of the Labour Relations Act. He stated further that the letter dated 25th September 2025 precluded the Respondents from asserting that the amendments were proposed and effected during the conference. He contended that the Petition was lodged following the Registrar’s disregard of the objections raised. He urged that due to the unlawfulness of the amendments, the same were ripe for quashing and can could not have been overtaken by events. He therefore urged the court to grant the prayers sought.
Submissions
Counsel submitted on whether the Petitioner’s and the members’ rights were violated by the unlawful amendments of the union’s constitution. The submissions largely reiterated the contents of the Petitioner’s affidavits and there was no need to reproduce them.
The 1st Respondent’s submitted on the merits of the application and whether the Petitioner was entitled to the reliefs sought. It was submitted that the intention of the application was to waste the court’s time. It was further submitted that the Petitioner did not stand to suffer any loss from the amendments as he had never been a member nor was he eligible for election.
On reliefs, it was submitted that the Petitioner was not entitled to the reliefs since the application was an afterthought and in bad faith. The Court was urged to dismiss the Application.
The 2nd and 3rd Respondents submitted on: whether the Registrar of Trade Unions acted lawfully and in accordance with Section 27 of the Labour Relations Act and whether the Petition had been overtaken by events.
On the first issue, it was submitted that the Registrar acted in accordance with the laid down procedure under Section 27 of the Labour Relations Act in discharging the statutory mandate vested in that office. It was submitted that the Registrar, upon receipt of the application for amendment of the Interested Party’s Constitution, published Gazette Notice No. 6021 inviting objections within 21 days.
It was submitted that the Registrar received and considered objections prior to making any determination and the Petitioner had not demonstrated any procedural impropriety, illegality, irrationality or breach of statute on the part of the Registrar. The Court was urged to affirm that the conduct of the Registrar was procedural and lawful.
On the second issue, it was submitted that the Petition and the reliefs sought had been overtaken by events, as its primary objective was to invite the Court to intervene in a statutory process that has since progressed beyond the stage sought to be restrained. Reliance was placed on the decision Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR, for the proposition that courts do not act in vain and will not issue orders where such orders have been rendered impracticable, ineffectual or incapable of enforcement by subsequent events. It was argued that from the circumstances of this case, granting the orders sought would serve no practical purpose and would amount to an exercise in futility. The Court was urged to dismiss the Petition with costs to the Respondents.
It is not in dispute that there were amendments effected on the union’s constitution.
What is in dispute is whether the same were done in accordance with the law. The issues that arise for determination therefore are whether the conservatory orders of stay and prohibition are merited.
Legal basis of orders sought
Conservatory orders in Constitutional Petitions are provided for under Article 23(3) (c) of the Constitution and the threshold to be observed when deciding whether to grant conservatory orders was discussed in depth by the Court in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR) as follows:
“24. I state without vacillation that the path to be followed by a court seized with an application under Article 23 (3) (d) is now relatively clear.
25. Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. As was stated by Musinga J (as he then was) in the case of Centre for Rights Education and Awareness and 7 Others –v- The Attorney General [HCCP No. 16 of 2011]:
“[Arguments] in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the Petitioner’s application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. 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”.
26. It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis. In these respects, I would quickly make reference to M. Ibrahim J (as he then was) in the case of Muslims for Human Rights [MUHURI] & Others –v- Attorney General & Others CP No. 7 of 2011, who whilst agreeing with Musinga J’s statement in Centre for Rights Education and Awareness [CREAW] and 7 Others –v- The Attorney General (Supra) stated as follows:-
“I would agree with my brother that an applicant seeking conservatory orders in a Constitutional case must demonstrate that he has a prima facie case with a likelihood of success” (emphasis).
27.Recently the same pertinent observations were made by Ngugi J and Muriithi J sitting separately in Jimaldin Adan Ahmed & 10 Others –v- Ali Ibrahim Roba and 2 Others [2015] eKLR and Micro Small Enterprises Association of Kenya (Mombasa Branch) –v- Mombasa County Government [2014] eKLR respectively.
1. 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 a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights: See Patrick Musimba –v- The National Land Commission & 4 Others HCCP 613 of 2014 (No. 1) [2015] eKLR and also Satrose Ayuma & 11 Others –v- Registered Trustees of Kenya Railways Staff Retirements Benefits Scheme [2011] eKLR.
1. 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 so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice. In these respects the case of Martin Nyaga Wambora –v- Speaker of the County Assembly of Embu & 3 Others CP No. 7 of 2014, is relevant, especially paragraphs [59] [60] and [61] thereof.
1. The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLR is that the court must consider conservatory orders also in the face of the public interest dogma.
1. 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 applicants 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: …”
As to what a prima facie case is, the court is guided by the reasoning of the Court of appeal in Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR) where it held that:
30.“Prima facie” is a Latin phrase for “at first sight”, whose legal meaning and application has been the subject of varying interpretation by courts in many jurisdictions. Phrases like “a serious question to be tried”, “a question which is not vexatious or frivolous”, “an arguable case” have been adopted to describe the burden imposed on the applicant to demonstrate the existence of prima facie case. The leading English House of Lords case of the American Cyanamid Co. Ethicon Ltd [1975] AC 396 is a case in point. The meaning of “prima facie case”, in our view, should not be too much stretched to land in the loss of real purpose. The standard of prima facie case has been applied in this jurisdiction for over 55 years, at least in criminal cases, since the decision in Ramanlal Trambaklal Hatt V. Republic [1957] E.A. 332.
31.Recently, this court in Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] KLR 125 fashioned a definition for “prima facie case” in civil cases in the following words:
“In civil cases, a prima facie case is a case in 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 to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”
What emerges is that the procedure under Section 27 was observed and that the main issue is on how and the process the changes were carried out. The Petitioner has cited breach of democracy leading to infringement of members’ constitutional rights and thus the need for intervention. A perusal of the Petition, reveals that it raises issues that are not merely speculative, therefore raising a prima facie case.
On the prejudice to be suffered, the Petitioner asserted that offices had already been filled and election was slated for the day the changes were tabled. There is however no evidence of any prejudice or loss to be suffered if the orders sought are not granted.
As to whether the Petition will be rendered nugatory, it is apparent that the Registrar of Trade Unions has since effected the changes in exercise of her statutory mandate. It follows that the court cannot make any order reversing the action taken at this stage without proof that the same was effected irregularly.
Clearly, the applicant failed to establish the above requirements.
It is the finding of the court that the instant application lacks merit and it is accordingly dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 13TH JULY, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
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