Veska Kangogo VS County Government Workers Union AND Roba Duba AND 1 Others

1.    The applicant upon expression of interest to contest the position of  general secretary  of the 1st respondent vide letter dated  22nd January 2026, and on subsequent receipt of  information that the date of the election had since changed from 27th February 2026  to 16th February 2026 and further alleging discrimination between member candidates for the position and non-member candidates filed the instant application by way of Notice of Motion  dated 16th January 2026  seeking for the following orders-
a.    THAT this Application be certified urgent and be heard ex parte in the first instance.- The matter was certified urgent

b.     THAT this Honourable Court be pleased to issue a Conservatory Order staying and/or suspending the implementation, execution, and/or any action pursuant to the 1st Respondent's Circular No. 3 referenced COGWU (K)/1/NDC/2026 dated 19th January, 2026, notifying branches on the change of date of its National Elections and Notice of the 33rd National Delegates Conference (NDC) rescheduling them to Monday, 16th February 2026, pending the hearing and determination of this Application.
c.    THAT this Honourable Court be pleased to issue a Conservatory Order restraining the 1st Respondent, whether by itself, its authorised agents, servants, representatives and/or officers, from proceeding with, conducting, or taking any steps whatsoever in furtherance of the the National Elections, 2026, scheduled for Monday, 16th February 2026, as notified in the Circular No. 3 referenced COGWU (K)/1/NDC/2026 dated19th January, 2026. pending the hearing and determination of this Application.

d.    THAT this Honourable Court be pleased to issue a Conservatory Order restraining the 2nd Respondent from conducting, overseeing, or supervising. recognizing and/or registering or in any manner giving effect to the electoral process and/or results arising from the purported elections by the 1st Respondent scheduled for Monday, 16th February, 2026, as notified in the Circular No. 3 referenced COGWU (K)/1/NDC/2026 dated 19th January, 2026, pending the hearing and determination of this Application.


e.     THAT this Honourable Court be pleased to issue a Conservatory Order staying and/or suspending the implementation, execution, and/or any action pursuant to the 1st Respondent's Circular No. 3 referenced COGWU (K)/1/NDC/2026 dated 19th January, 2026, notifying branches on the change of date of its National Elections and Notice of the 33rd National Delegates Conference (NDC) rescheduling them to Monday, 16th February 2026, pending the hearing and determination of this Petition.

f.    THAT this Honourable Court be pleased to issue a Conservatory Order restraining the 1st Respondent, whether by itself, its authorised agents. servants, representatives and/or officers, from proceeding with, conducting, or taking any steps whatsoever in furtherance of the National Elections, 2026, scheduled for Monday, 16th February 2026, as notified in the Circular No. 3 referenced COGWU (K)/1/NDC/2026 dated 19th January, 2026, pending the hearing and determination of this Petition.

g.    THAT this Honourable Court be pleased to issue a Conservatory Order restraining the 2nd Respondent from conducting, overseeing, supervising, recognizing and/or registering or in any manner giving effect to the electoral process and/or results arising from the purported elections by the 1st Respondent scheduled for Monday, 16th February, 2026, as notified in the Circular No. 3 referenced COGWU (K)/1/NDC/2026 dated 19th January, 2026, pending the hearing and determination of this Petition.

h.    THAT the 1st Respondent be directed to fix a fresh election date within the statutory window provided by the Registrar of Trade Unions, ensuring full participation and compliance with the Constitution.

i.    THAT the costs of this Application be provided for.

Grounds of the application
2.    THAT the Petitioner is a duly qualified aspirant for the position of General Secretary in the forthcoming National Elections.

3.    THAT vide a circular Ref No. ML&AP/TU/ADM/23 dated 25th September 2025, the Registrar of Trade Unions lawfully directed that National Elections for Trade Unions be conducted between 1st April 2026 and 30th June 2026.

4.    THAT notwithstanding the said statutory timelines, the 1st Respondent, through a circular dated 1st November 2025, scheduled its National Elections for 27th February 2026, upon which the Petitioner and other aspirants reasonably relied.

5.    THAT acting based on the said communication, the Petitioner expressed her interest to contest for the position of General Secretary andcommitted substantial time, financial resources, and logistical arrangements towards her candidature.

6.    THAT without notice, consultation, or justification, the 1st and 2nd Respondents issued a further circular dated 14th January 2026, arbitrarily rescheduling the National Elections to 16th February 2026.

7.    THAT the impugned decision was reached unilaterally, without involvement of the Union's governing organs, members, or prospective candidates, and in breach of the principles of fair administrative action, transparency, and accountability.

8.    THAT the abrupt rescheduling of the election date has the effect of unfairly disadvantaging the Petitioner and other aspirants, thereby violating the right to equality and freedom from discrimination under Article 27 of the Constitution.

9.    THAT the nomination process under the Union Constitution requires that a candidate who is not an employee of a County Government must be nominated by at least one-fifth (1/5) of the paid-up Union members, proportionally spread across not less than one-half (1/2) of the established branches. The time provided under the third circular is insufficient for me, or any other aspirant, to obtain the required nominations in compliance with the Union Constitution, further rendering the rescheduled election unlawful and procedurally unfair. 9. THAT the decision to bring forward the election date unjustifiably interferes with the Petitioner's right to participate in free elections. fair, and democratic electoral processes as protected under Article 38 of the Constitution.

10.    THAT pursuant to Article 26.8 of the Union Constitution, all completed National Nomination Forms are required to be submitted by 13th February 2026. rendering the impugned election date unreasonable, oppressive, and exclusionary.

11.    THAT the Petitioner had a legitimate expectation, founded on the 1st Respondent's official communication, that the elections would be conducted on 27th February 2026, which expectation has been unlawfully defeated.

12.    THAT the Respondents' actions constitute unfair administrative action within the meaning of Article 47 of the Constitution, as the decision was made without notice, reasons, or an opportunity to be heard.

13.    THAT internal Union rules and discretion cannot override constitutional Imperatives, and the Respondents' conduct offends Articles 27, 38, and 41 of the Constitution of Kenya.

14.    THAT the Registrar of Trade Unions has allowed sufficient time up to 30th June 2026 for the conduct of National Elections, and no prejudice will be occasioned to the Respondents if the elections are conducted lawfully and constitutionally.

15.    THAT unless this Honourable Court intervenes urgently, the Respondents will proceed with the elections on the impugned date, thereby rendering the Petition nugatory and occasioning irreparable constitutional harm to the Petitioner.

16.    THAT the Petitioner has established a prima facie case with a high probability of success, and the balance of convenience tilts in favour of granting the conservatory and injunctive reliefs sought.

17.    THAT it is in the interest of justice, constitutionalism, and democratic trade union governance that the orders sought herein be granted.


18.     The applicant filed an affidavit sworn on the 16th January 2026   in support of the application and annexed supporting documents. The court will revert to the annexures later in the judgment.

19.    The application was opposed. The respondents filed a replying affidavit sworn on the 31st January 2026 by Roba Sharu  Duba, the 2nd respondent and the General Secretary of  the union (1st respondent).  The 2nd respondent contended that the application was without merit because the election process complied with the constitution of the 1st respondent/union.  The deponent annexed as RSD- 1 and RSD2 excerpt of the Union Constitution, Article 13 and 11.1 respectively, RSD-3 was a copy of the minutes of the  meeting of the union Central  Administration Board (CAB) on the 14th January 2026, RSD-4 was a copy of the excerpt of the union constitution article 20.1.1, RSD-5 Letter of the Registrar of Trade Unions dated  29th October 2025 instructions on the union elections,  RSD- 6 was the impugned notice of 19th January 2026 rescheduling elections,  the initial notice dated   1st November 2025  indicating branch elections were on 17th  January 20226 and national elections 27th February 2026 respectively(RSD -12), The applicant letter dated   22nd  January 2026 expressing interest to contest of the position of General secretary of the union,  extracts of  WhatsApp communication between the applicant and an official of the 1st respondent where she asked for nomination requirements and the same was supplied(RSD-14).  The applicant further filed the instant complaint with the interested party as demonstrated in correspondence annexed as  RSD-15, RSD-16 &RSD-17)

20.    The interested party filed a replying affidavit sworn by Ann Kanake, the Registrar of Trade Unions, and in a nutshell, she asserted that the application was without merit as the process was in compliance with the constitution of the union and the court ought to respect union autonomy in the internal administration of the affairs of the union. 

21.     On the 10th February 2026, the court heard the parties interpartes. The applicant was represented by Mr. Oketch, Advocate, and the respondents by Mr. Oginga, Advocate. The interested party’s counsel was absent.   Mr. Oketch reiterated the grounds of the application, as stated in the applicant's affidavit. He submitted that the election process was not transparent as required under Article 10 of the Constitution. The respondents’ advocate relied on the replying affidavit of the 1st respondent dated 31st January 2026 and his further affidavit dated 4th February 2026, and the annexures, and submitted that the applicant had not met the threshold for the grant of conservatory orders.  The counsel submitted that the action of the respondents in change of date was consistent with the labour rights under Article 41 of the Constitution and that the amendments were in compliance with the union constitution as amended by the special National Delegates Conference held on 23rd  November 2024, where it was endorsed to increase the nomination fee of non- member candidates in national elections.  The counsel submitted that the amendments had not been challenged.

Applicant’s written submissions
22.    The applicant outlined and submitted the following issues-
a.    Whether the Applicant has locus standi to institute these proceedings notwithstanding her non-membership status.

b.    Whether the Applicant had a legitimate expectation to participate in the electoral process based on official circulars, statutory directives of the Registrar of Trade Unions, and representations made by the Respondents.

c.    Whether the Respondents' alteration of election dates, unilateral amendment of the Union Constitution, imposition of punitive nomination fees, and formulation of electoral rules violated the Union Constitution, Election Rules, Registrar's directives, and constitutional standards of fairness, equality, and democracy.

d.    Whether technical objections relating to affidavit serialization and marking of exhibits can override constitutional justice under Article 159 of the Constitution, the Mutunga Rules, and access to justice principles.ANALYSIS

e.    Whether the Applicant has locus standi to institute these proceedings notwithstanding her non-membership status.

23.    The objection that the Applicant lacks standing is legally unsustainable. The Applicant's eligibility is expressly anchored in Section 26.18 of the Union Constitution and Section 31(4) of the Labour Relations Act, 2017, which recognises eligibility for union office beyond formal membership where the union constitution so provides.  Constitutionally, standing is no longer restrictive. Article 22(1) of the Constitution provides:

"Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened."Article 258(1) of the Constitution provides:"Every person has the right to institute court proceedings claiming that this Constitution has been contravened, or is threatened with contravention."The Supreme Court in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR held:"The Constitution of Kenya, 2010 has fundamentally transformed the concept of locus standi. The narrow traditional approach has been abandoned in favour of a broad and liberal approach that allows any person to approach the Court for the enforcement of the Constitution."In Anarita Karimi Njeru v Republic [1979] KLR 154, the court articulated an important principle for constitutional petitions under the repealed Constitution. It stated as follows:-"We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he shourd set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed." Once the electoral process was placed in the public realm through official circulars, the Applicant acquired legally cognisable rights and interests in that process. She is therefore not a stranger to the Union's electoral framework, but a constitutionally recognised electoral participant. Her standing arises both contractually under the Union Constitution and constitutionally under the Constitution of Kenya.)

24.    Whether the Applicant had a legitimate expectation to participate in the electoral process based on official circulars, statutory directives of the Registrar of Trade Unions, and representations made by the Respondents. The Respondents publicly issued official circulars communicating election dates, nomination frameworks, and compliance requirements. These communications constituted formal representations by a body exercising public and statutory functions. The doctrine of legitimate expectation was authoritatively stated by the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR:"Legitimate expectation arises when a public authority, by representation or past practice, arouses an expectation which it would be unfair to frustrate."Similarly, in Keroche Industries Ltd v Kenya Revenue Authority & 5 Others [2007] eKLR, the Court held:"A legitimate expectation arises where a person responsible for making a decision has led someone affected by the decision to believe that he will receive or retain a benefit or advantage." This legitimate expectation was reinforced by the statutory directives of the Registrar of Trade Unions, which created a lawful regulatory framework within which aspirants structured their compliance and candidature strategies. The Applicant relied on these representations by formally expressing interest, mobilising resources, preparing nationwide structures, and organising compliance logistics. Legitimate expectation arises where representation is made, reliance occurs, and detriment follows upon departure from that representation, all of which are satisfied in this case. The unilateral alteration of timelines defeated this expectation. The Applicant submits that had the elections been conducted on the earlier communicated date of 27th February 2026, she would have met the nomination thresholds. Her exclusion was therefore administratively engineered, not organically arising.

25.    Whether the Respondents' alteration of election dates, unilateral amendment of the Union Constitution, imposition of punitive nomination fees, and formulation of electoral rules violated the Union Constitution, Election Rules, Registrar's directives, and constitutional standards of fairness, equality, and democracy. The Respondents' conduct violates constitutional, statutory, and internal governance norms. Article 47(1) of the Constitution provides:-Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair." The alteration of election dates, unilateral constitutional amendments, and imposition of punitive nomination fees were not lawful, reasonable, participatory, or procedurally fair. The imposition of a KShs. 3,000,000 nomination fee, without consultation, ratification, or lawful amendment procedures, constitates an unlawful constitutional amendment and a structural economic barrier to participation. This violates Article 27 of the Constitution which provides:- "Every person is equal before the law and has the right to equal protection and equal benefit of the law."It also violates Article 38(3) (c):"Every adult citizen has the right, without unreasonable restrictions, to be a candidate for public office, or office within a political party of which a citizen is a member and, if elected, to hold the office" And Article 41(2)(c):"Every worker has the right to form, join or participate in the activities and programmes of a trade union."15. Electoral rules that advantage an incumbent contestant violate neutrality, equality, and democratic fairness. The fact that the incumbent formulates rules imposing KShs. 3,000,000 thresholds and nationwide endorsement requirements while personally benefiting from incumbency structures creates structural discrimination and electoral bias. Further, the change of dates violated Article 26.8 of the Union Constitution, which requires compliance timelines of at least fourteen (14) days before the NDC. The process therefore violated internal constitutional law.
26.    Whether technical objections relating to affidavit serialization and marking of exhibits can override constitutional justice under Article 159 of the Constitution, the Mutunga Rules, and access to justice principles. Article 159(2)(d) of the Constitution provides:"Justice shall be administered without undue regard to procedural technicalities."The Supreme Court in Raila Odinga & Others v IEBC & Others [2013] eKLR stated:"The essence of Article 159 of the Constitution is that a Court of law should not allow the prescriptions of procedure and form to trump the primary object of dispensing substantive justice."Rule 3(3) of the Mutunga Rules provides:"These Rules shall be interpreted in accordance with Article 259 of the Constitution and shall be applied to advance and realise the rights and fundamental freedoms enshrined in the Bill of Rights and to facilitate access to justice."Rule 10(3) further provides: "The Court may accept an oral application, a letter or any other informal document which discloses denial, violation, infringement or threat to a right or fundamental freedom." Technical objections on serialization and marking of annexures cannot defeat constitutional justice. No prejudice has been demonstrated, no evidentiary confusion arises, and no substantive injustice is shown.

Respondents’ submissions written submissions 
27.    We wish to distill the disputed and non-disputed issues for determination by this Honorable Court as follows:- (i) Undisputed Issues
a.    Whether the Petitioner herein has paid the Kshs. 3,000,000/= to the 1st Respondent herein in compliance with Article 26.18 (e) of the 1st Respondent's Constitution: The Petitioner has since paid this amount to the1st Respondent: The Petitioner has admitted as much during her oral arguments;
b.    Whether the Petitioner herein has complied with the other impugned compliance requirements imposed by the 1st Respondent's Constitution under Article 26.18 therefor as pre-conditions for qualification to vie or contest for the position of the General Secretary of the 1st Respondent as a non-member: The Petitioner has since submitted her endorsement and/or nomination forms and signatures that are currently being vetted and verified by the relevant organs of the 1st Respondent herein and a decision will be communicated to the Petitioner well before the NDC. This much has been admitted by the Petitioner; and
c.     Whether the Petitioner is a member or a non-member of the 1st Respondent herein: By making an application under Article 26.18 of the 1st Respondent's Constitution and purporting to comply with the requirements thereunder, the Petitioner is admitting that she is applying as a non-member of the union. These undisputed issues, we submit, are now moot as they have been over taken by events and hence no longer live issues in controversy: see Katiba Institute v Parliament of the Republic of Kenya & another (Petition E280 of 2022) [2025] КЕНС 4609 (KLR) (Constitutional and Human Rights) (10 April 2025) on the definition of the doctrine of mootness. (ii) Disputed/Contested Issues 6.

28.    We submit, therefore, that the main issues which properly commend themselves for your determination as regards the Petitioner's said applications are:-
A.    Whether the change and/or rescheduling of the date of the 1st Respondent's national elections and national delegates conference (NDC) from 27th February, 2026 to 16th February, 2026 vide the 1st Respondent's impugned letter or circular dated 19th January, 2026 was done in accordance with the 1st Respondent Unior's Constitution as required under Section 34 (1) of the Labor Relations Act, 2007: Whether Article 26.18 of the 1st Respondent's Constitution under which the Petitioner Applicant has expressed her intention to contest for the position of the general secretary of the 1st Respondent herein contains a provision that discriminates unfairly between incumbents and other candidates, including the Petitioner herein, in the 1st Respondent's elections in violation of Section 34 (2) (a) of the Labor Relations Act, 2007;
B.    Whether the annexures annexed to the affidavits in support of the Petitioner's instant applications ought to be struck out and/or expunged together with the said supporting affidavits for being in violation of Rule 9 of the Oaths & Statutory Declarations Rules; and iv. Whether the Petitioner Applicant herein has satisfied and/or met the principles for the grant of conservatory orders. C. THE APPLICABLE LAW 7. My Lady, in support of our arguments, we wish and intend to rely on the following and provisions of statutes and constitutions together with the aforementioned case law authorities:- a) The Constitution of Kenya, 2010: Article 41 (4) of the Constitution of Kenya b) The Labor Relations Act, 2007: Section 34 (1) & (2) of the Labor Relations Act, 2007. c) Constitution of County Government Workers Union (Kenya): Articles 20.1.1, 20.1.2, 20.18, 26.2, 26.18 of the Constitution of County Government Workers Union (Kenya), the 1st Respondent herein.

29.    Submissions/arguments - the Respondents' skeleton arguments in opposition to the instant applications are as follows:- (i) Whether the change and/or rescheduling of the date of the 1st Respondent's national elections and national delegates conference (NDC) from 27th February, 2026 to 16th February, 2026 vide the 1st Respondent's impugned letter or circular dated 19th January, 2026 was done in accordance with the 1st Respondent Union's Constitution as required under Section 34 (1) of the Labor Relations Act, 2007 9. My Lady, we submit that the answer to this issue is emphatically in the affirmative. Section 34 (1) of the Labor Relations Act, 2007 provides that:- "The election of officials of a trade union, employers' organisation or federation shall be conducted in accordance with their registered constitutions." The decision to change the date of the 1st Respondent's national elections and NDC from 27th February, 2026 to 16th February, 2026 vide the impugned circular dated 19th January, 2026 was made lawfully and procedurally by the competent organ of the 1st Respondent herein, being the Central Administration Board (CAB) when it sat on 14th January, 2026 and resolved to change the date with reasons contained in the minutes of its meeting: see paragraphs 18 to 23 of the Respondents' replying affidavit sworn on 31st January, 2026. The change was also necessitated by agitation from the 1st Respondent's members: see paragraphs 3-8 of the Respondents' further affidavit sworn on 4th February, 2026. This was done in the exercise of CAB's constitutional powers and authority under Article 20.1.1 of the 1st Respondent's Constitution which provides that:- “The NDC shall be held every five years at such a place and date as may be fixed by the CAB." 12. Moreover, as required under Article 20.1.2 of the 1st Respondent's Constitution, the 2nd Respondent herein communicated the change of date to all the 1st Respondent's branches, NDC delegates, and general membership of the union by giving not less than 28 days' notice in writing, vide the impugned letter/circular dated 19th January, 2026: See paragraphs 25 to 28 of the Respondents' replying affidavit dated 31st January, 2026. Hence, it is our submission that the change in the date of the elections of the 1st Respondent was not done arbitrarily, unprocedurally, and unilaterally as spuriously alleged by the Petitioner Applicant herein. The same was also duly communicated to the Registrar of Trade Unions, the Interested Party herein. It  is imperative to note, that by the time the 1st Respondent herein through the 2nd Respondent herein was issuing the impugned notice dated 19th January, 2026, neither of the Respondents herein knew of the existence of the Petitioner herein or her intention to vie or contest for the position of the 1st Respondent's general secretary since the Petitioner only expressed her intention to view vide her letter dated 22nd January, 2026 which was received by the union on 23rd January, 2026. The circular was thus issued only with members in contemplation and mind and not non-members such as the Petitioner herein since until then, no non-member had expressed any intention to vie. It is our humble submission that this Honorable Court may only interfere with the decisions made by a trade union such as the 1st Respondent herein through its competent organs regarding trade union elections where it is demonstrated either that:- a) The union elections or any decision or action appurtenant thereto violate the trade union's constitution; b) The elections or any decision connected directly or indirectly to them violates the provisions of the Labor Relations Act, 2007 or any other relevant statute: or The elections or any other action taken regarding the same violate any provision of the Constitution of Kenya, 2010 or any of the fundamental rights and freedoms enshrined therein.  The Petitioner Applicant has not proved any of the above circumstances and hence it is our humble view that in the premises, if this Honorable Court were to grant the conservatory orders sought by the Petitioner, the Court would be micromanaging the 1st Respondent herein, interfering with is autonomy to conduct its internal affairs, and supplanting or usurping the powers of its lawfully constituted organs. See Aloise A. Otiende v. Boniface & Another, Cause No. 1650 of 2011 as cited with approval in Noah Rotich 6 others v Union of Kenya Civil Servants another 2018KEELRC2333(KLR) where the Court held that:- (ii) "...As observed by the Court in Aloise A. Otiende v. Boniface Munyao. Public Authorities do not exercise control over trade union electoral processes... Trade Unions retain the right to self- regulate..." Whether Article 26.18 of the 1st Respondent's Constitution under which the Petitioner Applicant has expressed her intention to contest for the position of the general secretary of the 1st Respondent herein contains a provision that unfairly discriminates unfairly between incumbents and other candidates, including the Petitioner herein, in the 1st Respondent's elections in violation of Section 34 (2) (a) of the Labor Relations Act, 2007 16. In her application dated 27th January, 2026, the Petitioner herein has taken issue with the compliance requirements under the 1st Respondent's constitution for nomination to vie for the position of General Secretary of the 1st Respondent herein. These include the requirement regarding endorsement of a non-member candidate by one fifth of the union members and payment of Kshs. 3,000,000/= nonrefundable fees.  Further, during his oral submissions, Counsel for the Petitioner insinuated that the said constitutional requirements are unfair and unjust and that the same were brought about specifically to aid the 2nd Respondent herein who is also vying for the same position as an incumbent. That these requirements unfairly discriminate against her and are thus in violation of Section 34(2) of the Labor Relations Act.

30.    Section 34 (2) (a) of the Labor Relations Act, 2007 provides that:- “The constitution of a trade union, employers' organisation or federation shall- (a)not contain a provision that discriminates unfairly between incumbents and other candidates in elections; and (b)..." . The provision of the 1st Respondent's Constitution under contestation is Article 26.18 thereof which provides that:- "Any person not actually engaged or employed in the service of county governments or associated companies or agencies wishing to contest under provisions of section 31(4) of the Labor Relations Act, 2007 must meet the following requirements shall have been endorsed for nomination by one fifth (1/5) of the paid up union members proportionally spread in not less than half (1/2) of the established branches. e) Such person shall have paid a minimum of Kshs. three (3) million to the union non-refundable amount to defray the expenses relating to this nomination." The  amendments to the 1st Respondent's Constitution are not made by the 2nd Respondent herein but rather by the general membership of the 1st Respondent herein during an NDC or SNDC. The amendments of the 1st Respondent's Constitution was done way back in 2016 and in Dickson Magak Omwaga & Another v. The Attorney General & 3 Others, Civil Appeal No. 1 of 2016 where the said amendments were challenged, this Honorable Court affirmed and rubber stamped the same as valid and constitutional. None of the provisions of the 1st Respondent's constitution have been declared as unconstitutional.  Hence, the Petitioner herein, being a non-member of the 1st Respondent Union, cannot be heard to arguing that the provisions of the 1st Respondent's Constitution lawfully ratified and passed by members of the union are unfair, unjust, and invalid just because she does not want to comply with them. No member of the 1st Respondent has complained. The Applicant herein lacks the locus standi or capacity to challenge provisions of a constitution that only apply to her indirectly as a nonmember and which she took no part in passing.  As to the claim of the constitutional requirements under Article 26.18 of the 1st Respondent being discriminatory, the Petitioner has not adduced any evidence in support of the same. In any event, regarding the timelines for campaigning which she alleges have been shortened by the circular dated 19th January, 2026, both herself and the incumbent, the 2nd Respondent herein, are subject to the same timelines in terms of campaigns for the position of general secretary as they are both currently actively campaigning without any hindrance. Therefore, no differential or less favorable treatment of the Petitioner vis-à-vis the 2nd Respondent herein herein has been proved. In Cause Number 426 of 2019: Kennedy Kimathi Ngongo v. Roche Kenya Limited, held that:- "...For a claim of unlawful discrimination to succeed, the differential treatment must be demonstrably linked to one of the protected characteristics on grounds listed in the Constitution..."

31.     (iii) Whether the annexures annexed to the affidavits in support of the Petitioner's instant applications ought to be struck out and/or expunged together with the said supporting affidavits for being in violation of Rule 9 of the Oaths & Statutory Declarations Rules in  both applications before the Honorable Court, the annexures in support of the affidavits in support thereof are simply marked as "VK-(1...)" without being contemporaneously sealed with the stamp and signature of the very commissioner for oath who has commissioned the said affidavits. We submit that this is contrary to the mandatory requirement of Rule 9 of the Oaths and Statutory Declarations Rules which provide that:- “All exhibits to Affidavits shall be securely sealed thereto under the seal of the Commissioner, and shall be marked with serial letters of identification. 24. In the circumstances, it is our submission that all the annexures annexed to the affidavits in support of the Petitioner's instant applications are all for striking out and/or expungement from the record as they are inadmissible as evidence. In support of this submission, we refer the Court to Bruton Gold Trading LLC v Anne Atieno Amadi t/a Amadi & Associates Advocates & 6 others (Civil Case E211 of 2023) [2023] КЕНС 18370 (KLR) where the Court held that:- "An affidavit and annexures produced in a proceeding constitute evidence...it is a requirement that the Commissioner for Oaths has to ensure that the deponent of an affidavit takes oath in his presence and vouches the truth of the statements he makes... In Francis A. Mbalanya vs Cecilia A. Waema [2017] eKLR, the Court held:- 'In the instant case, the law has provided in mandatory terms, the manner in which evidence by way of annextures can be received by the Court. The failure to comply with that law, like in the instant case, can only lead to one thing, the striking out of the offending documents. " . Also see KCB Bank Kenya Limited v La'Paz Holding Limited (Civil Cause E004 of 2023) [2024] KEELC 6827 (KLR) where the Court held that:- "...where an annexure, is not properly and securely serialized and sealed, the impugned annexure becomes inadmissible and cannot be relied upon by a court of law. Consequently, the only alternative available to a court of law, which is confronted with improper annexures is to have same [annexures] struck out or expunged from the record of the court." That in  the circumstances, we shall go as far as submitting that even the entire affidavits themselves or the paragraphs thereof attaching unsealed annexures are invalid and are to be expunged. The consequence, is that the Petitioner's application is fatally defective and not supported by any evidence. We refer the Court to KCB Bank Kenya Limited v La'Paz Holding Limited (supra) where the Court held that:- "...the annexures having been struck out and expunged, the paragraphs of the supporting affidavit, that were underpinned by the said annexures are rendered unverifiable and invalid. In this regard, the corresponding paragraphs of the supporting affidavit similarly lend themselves to striking out. 27. And, the Petitioner has argued orally citing the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (the 'Mutunga Rules') that this omission is not fatal and is cured or saved by Article 159 (2) (d) of the Constitution of Kenya, 2010. We disagree. We submit that this statutory requirement is couched in mandatory rather than permissive terms. It is not merely a procedural technically but a statutory requirement which has not been declared unconstitutional by any court. Rule 11 (2) of the Mutunga Rules in itself contains this requirement and provides that:- "If a party wishes to rely on any document, the document shall be annexed to the supporting affidavit or the petition where there is no supporting affidavit." That , whereas the Mutunga Rules allow for informal documentation, we submit that this is not a license or carte blanche for a Petitioner represented by an Advocate to flout statutory provisions on sealing of affidavits and then seek rescue or refuge under the said Rules or Article 159 of the Constitution. In Sehmi v Sehmi & 4 others (Environment & Land Case 659 of 2017) [2024] KEELC 4707 (KLR) (23 May 2024) where a similar argument was made, the Court held that:-"It is therefore not true, as submitted by the Plaintiff's counsel, that the failure to seal and number the annexures is a procedural technicality that can be saved by the provisions of Article 159(2)(d) of the Constitution and Section 1A and 1B of the Civil Procedure Act." 29. Also see KCB Bank Kenya Limited v La'Paz Holding Limited (supra) where the Court held that:- (iv) “...the importance of Rule 9 [supra] and the legal implications attendant thereto were elaborated by the Court of Appeal in the case of Zaheer Jhanda & James F. O. Kenani v Independent Electoral & Boundaries Commission. Julius Meja Okeyo, Richard Nyagaka Tongi & Chris Munga N. Bichage (Civil Appeal 33 of 2018) [2018] KECA 432 (KLR) (27 July 2018) (Judgment). where the court stated and observed as hereunder: 'Itwas thus a pure a point of law whether or not the exhibits were compliant with the mandatory provisions of rule 9 of the Oaths and Statutory Declarations Rules. The rule requires that exhibits be securely sealed under the seal of the commissioner for oaths The appellant also contends that the trial court should have ignored this omission, invoked Article 159(2) (d) of the Constitution and opted to do substantive justice... It has been consistently stated by our courts that Article 159 is not a panacea of all manner of maladies. For example in Raila 2017, the Supreme Court stated: *...Article 159 (2)(d) of the Constitution simply means that a court of law should not pay undue attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the court..."."

32.    Whether the Petitioner Applicant herein has satisfied and/or met the principles for the grant of conservatory orders. The  Principles guiding and governing the grant of conservatory orders were encapsulated in the case of Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] КЕНС 2174 (KLR) and may be summarized thus:-"(i)The needs for the applicant to demonstrate an arguable prima facie case with likely hood of success and to show that in the absence of the conservatory orders he is likely to suffer prejudice. (ii) The secondary principal in whether the denial of the conservatory order will enhance the constitutional values and objects of the specific right or freedom in the bill of rights. (iii) The court should consider whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. (iv) Whether the public interest would be prejudiced by a decision to exercise discretion to grant or deny conservatory order." (a) Arguable Prima Facie Case - It is our submission that the Petitioner herein has not proved that she has an arguable prima facie case with a likelihood of success. There is no demonstration in any of the applications of a violation or threatened violation of the Petitioner's constitutional rights by the Respondents herein. As held in Nguruman Limited Vs Jan Bonde Nielsen & 2 Others, Civil Appeal No 77 of 2012 (2014) while citing Mrao Ltd. V. First American Bank of Kenya Limited & 2 Others [2003], KLR 125, a prima facie case requires an applicant to show a clear and legitimate right that has been apparently infringed or directly threatened with infringement, thereby necessitating urgent intervention by the Court. That  Petitioner has only alleged that the Respondents' actions constitute unfair administrative action within the meaning of Article 47 of the Constitution, claiming that the decision to change the date of the 1st Respondent's national elections and NDC was made without notice, reasons, or an opportunity to be heard. We have already demonstrated, that the decision was made lawfully by a competent organ of the 1st Respondent, duly notified to the Union membership, and reasons for the decision indicated in the letter dated 19th January, 2026 communicating the change of date. The notification was made to the union's members as required by its Constitution at Article 20.1.2 thereof, not to non-members. By this time, the Respondents herein did not even know of the Petitioner herein or her interest in vying or contesting for the position of General Secretary and only came to know of the same on 23rd January, 2026. Under the said circumstances, how could the Respondents herein have notified the Petitioner Applicant of the change of date or allowed her to be heard when the Respondents were not even aware of her or her candidacy? Further, as we have already shown, the Applicant has failed to prove a violation of her right to protection against discrimination and to equal protection under the law, as she has not demonstrated any differential or less favorable treatment by the Respondents herein. (b) Enhancement/Promotion of Constitutional Values & Objects. We submit that the denial of the conservatory orders sought by the Petitioner herein will enhance the constitutional values and objects of the 1st Respondent's right under Article 41 (4) of the Constitution to determine its own administration, programmes, and activities.

33.     Nugatory - The Applicant herein has not shown how her petition will be rendered nugatory, futile, worthless, otiose, or academic if she is denied conservatory orders. My Lady, the core purpose of conservatory orders is to preserve the subject matter of the dispute so that the final judgment is not rendered nugatory. In the instant case, even if the Honorable Court fails to grant the orders sought, and the elections proceeds on 16th February, 2026 as scheduled and the Court eventually finds that this was unlawful, the Court will still be in a position to either order a fresh election or compensation in damages or costs to the Petitioner Applicant herein. However, if the Honorable Court grants the orders sought in the interim, the Court will determined with finality the issues raised in the Applicant's petition and the prayers made therein. Indeed, during oral submissions, Counsel for the Petitioner herein purported to ask this Honorable Court to find that the Applicant has properly submitted her nomination documents, find that the requirement for payment of Kshs. 3, 000,000/= is unfair and unjust, and declare the provisions of the 1st Respondent's constitution containing this and other requirements including requirement of signatures from members unconstitutional. That if the Court accedes to this request and grants the orders as sought by the Petitioner at this interlocutory stage, the Court will have determined the entire matter at an interim stage. Because  conservatory orders are generally granted on the inherent merit of a case (see Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR), a Court must take great caution and exercise circumspection before granting such orders at the interlocutory stage so as not to determine issues raised in the petition. Matters which are the preserve of the main petition ought not to be dealt with finality at the interlocutory stage. This warning was sounded in Law Society of Kenya v Attorney General & another [2020] KEНС 1702 (KLR) where the Court held that:- "Given the nature of applications for conservatory orders, Courts are generally called upon to exercise caution in such applications. The good reason thereof is to avoid dealing with finality, and in the interim, with issues which are the preserve of the main Petition. Page 11 of 14 A Court, therefore, dealing with an application for conservatory orders must remain focused and maintain the delicate balance by ensuring that it does not delve into issues which are in the realm of the main Petition..." 39. In any event, the issue of nomination of the Applicant is a non-issue as it has neither been raised in the Applicant's applications or petition. The Petitioner is merely asking this Honorable Court to go on a wild goose chase to pre-empt the decision of relevant organs of the 1st Respondent herein which are currently considering the Applicant's application to contest for the position of general secretary, including the signatures, endorsement, and nomination forms submitted by the Petitioner herein.

34.     Public Interest & Prejudice - the Black`s Law Dictionary 9th Edition defines public interest as:- "...the general welfare of the public that warrants recognition and protection, something in which the public as a whole has stakes..." There is no gainsaying that trade union elections such as those of the 1st Respondent herein are matters that garner a lot of public interest. Not only because of the significant role that trade unions play in the Kenyan society and labor or employment sector but also given the number of the 1st Respondent's members and delegates who will be exercising their constitutional rights in the elections scheduled for 16th February, 2026. We submit that granting the conservatory orders sought will greatly harm and prejudice public interest as the same will infringe upon the 1st Respondent's members' and/or delegates' constitutional rights to participate in the activities and programmes of a trade union under Article 41(2) (c) of the Constitution. The grant of the orders will also unlawfully extend the terms of officials of the 1st Respondent contrary to Article 26.2 of its Constitution and deny its members the opportunity to elect new officials. Most significantly, however, the grant of the orders sought would occasion irreparable loss to the 1st Respondent herein which has already spent a considerable amount of money and resources in planning and preparing for the upcoming national elections and NDC. This includes accommodation for delegates, transport, and other expenses connected with organizing the NDC and national elections of the 1st Respondent Union. See paragraphs 50-57 of the Respondents’ replying affidavit sworn on 31st January, 2026. On the flip side, My Lady, the Petitioner herein will not suffer any prejudice if the orders sought are not granted since she has already submitted all her documents and signatures for verification by the relevant organs of the 1st Respondent herein Page 12 of 14 and has also paid the required Kshs. 3,000,000/=. The Applicant also continues to campaign. The Court would be pre-empting the decisions of the said organs, including the Election Committee, if it were to grant orders touching on the Applicant's nomination. In any event, as already stated, any prejudice likely to be suffered by the Petitioner herein can easily be remedied upon the hearing and determination of her petition. On the Applicant's claim of legitimate expectation, it is apparent under paragraph 4 of the Petitioner's application dated 16th January, 2026, that the Petitioner herein was well aware of the 1st Respondent's circular dated 1st November, 2025, notifying members of its branch and national elections. However, the Petitioner conveniently waited until 22nd January, 2026 to express her intention to contest for the position of general secretary of the 1st Respondent. This was well after the NDC date and after the national elections had been changed by the CAB on 19th January, 2026. Hence, the Petitioner cannot be heard to be complaining about timelines when she chose to sit on her rights. We further submit that in any event, the doctrine of legitimate expectation does not apply to the Petitioner Applicant herein for the following reasons:- For legitimate expectation to arise, there must be an express, clear and unambiguous promise given by a public authority or consistent practice and cannot be used to circumvent or avoid legal obligations: see Kenya Revenue Authority & Commissioner of Domestic Taxes v Republic (Ex parte) Kenya Nut Company Limited. The Applicant herein is relying on this doctrine as an excuse for not complying with legal requirements under the 1st  Respondent's Constitution. The 1st Respondent never made any promise to the Petitioner that the earlier date of 27th February, 2026 would not be changed. In any case, the 1st Respondent is not a public authority or body. The expectation must be reasonable, and the applicant must have reasonably relied upon it to their detriment: see Edward v Kenya School of Law & 2 others (Miscellaneous Application E022 of 2025. The Petitioner's claim of legitimate expectation is unreasonable and as already demonstrated, there is no proof of detriment or prejudice the Petitioner will suffer or suffers since she has already submitted her documents for consideration by the 1st Respondent. The expectation must be more than a subjective desire or pious hope: see Keroche Industries Ltd v Kenya Revenue Authority & 5 Others [2007] eKLR. The Petitioner's expectation in the instant matter is not objective but rather anchored on personal preconceived preferences, conveniences, and timelines, hence illegitimate. Page 13 of 14 47. Finally, regarding the argument that the 1st Respondent herein has until June, 2026 to conduct its national elections and NDC, we submit that as advised by the Interested Party herein in her letter to the Respondents herein dated 29th October, 2025, the confirmation of the exact dates that the Union can conduct its branch and national elections is an internal decision of the Union through its relevant organs mandated to prepare and conduct elections as per its Constitution. See pages 20-21 of the Respondents' replying affidavit dated 31st January, 2026. In any case, once the 1st Respondent conducted its branch elections on 17th January, 2026, there was no basis for the 1st Respondent not to commence preparation for its national elections and to schedule the same soon after the branch elections. We submit that as long as the elections (including setting of dates of the elections) are conducted within the timelines issued by the Registrar of Trade Unions in her circular dated 25th September, 2025, the same cannot be faulted.
Decision
35.    The first issue to dispense with is the issue of whether the applicant had locus standi to file the petition.  The Latin term ‘ Locus standi’ is defined under the Black's Law Dictionary, Garner, 10th Edition, to mean ' place of standing’, the right to bring an action. or to be heard  in a given forum’’ The respondents said the applicant was not a member of the union, hence lacked locus to bring the petition against them. The court on the matter was guided by the union constitution Article 26.18, which allows persons who are not members of the union  or even employed or engaged in the services of the county governments to  associated companies or agencies to contest for the seat of General Secretary pursuant to section 31(4) of the Labour Relations Act to wit-‘Notwithstanding the provisions of subsection (1)—(a)the general secretary of a trade union or the chief executive or association secretary of an employers’ organisation may be a person not engaged or employed in the sector concerned;(b)a person may be an official of more than one employer’s organisation; and(c)the Registrar may, on application by a trade union or employers’ organisation, permit any other office to be filled by a person not engaged or employed in the sector concerned.’’ The court finds that the applicant, having expressed interest and further invited to apply for the position by the respondent by being issued with  nomination papers, of which she proceeded to apply and pay the nomination fee,  had a stake in the elections, thus locus/standing to sue the respondents as a potential candidate.  Further this was a  constitutional petition and the issue of locus stsandi  is a non-issue as the applicant had constitutional right to enforce her rights as  given under article 22 of the Constitution to wit- ‘(1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.’’   Further Article 258(1) of the Constitution provides: “Every person has the right to institute court proceedings claiming that this Constitution has been contravened, or is threatened with contravention." The court upheld decision cited by the applicant of the Supreme Court in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, which held: "The Constitution of Kenya, 2010 has fundamentally transformed the concept of locus standi. The narrow traditional approach has been abandoned in favour of a broad and liberal approach that allows any person to approach the Court for the enforcement of the Constitution." In the upshot, the court holds that the applicant had an unqualified right under articles 22 and 258 of the Constitution of Kenya to bring the petition against the respondent.

36.    The gist of the application is to seek conservatory orders pending the hearing and determination of the petition. Since the promulgation of the Constitution in 2010, the superior courts have on numerous occasions pronounced themselves on the threshold of the grant of conservatory orders. I find Justice Onguti(as he then was ) summarized the jurisprudence on conservatory orders as in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR) as follows-‘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.
29.    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.
31.    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.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: see Centre for Human Rights and Democracy & 2 Others –v- Judges and Magistrates Vetting Board & 2 Others CP No. 11 of 2012 as well as Suleiman –v- Amboseli Resort Ltd [2004] 2 KLR 58’’ (emphasis given)I proceeded to apply the foregoing jurisprudence to determine the merit of the application .

37.    The applicant vide letter dated 22nd January  2026 communicated to the 2nd respondent her  interest in the position of General Secretary . At the time of the expression of interest, the respondent had already changed the date of the election from 27th February 2026 to 16th February 2026, vide notice dated 19th January 2026. The respondent vide letter dated  23rd January 2026  immediately informed the applicant that the date of election was 16th February 2026  and not 27th February 2026  as indicated in her letter of 22nd January 2026. The applicant requested the circular in communication via WhatsApp with a representative of the respondents. The applicant nevertheless continued with her presentation of papers despite being aware of  the change of  dates of election and even paid the nomination fee.  The court finds that from the word go, being vide letter of interest of 22nd January 2026, the applicant was deemed as operating on notice of 19th January 2026  issued before her expression of interest. The impugned notice complied with the 28-day notice. The complaint that short notice and being unable to comply are due to an inadequate notice is thus baseless.  The applicant did not express interest during the existence of the  cancelled notice, but the current notice of 19th January 2026. She was not a member of the union.  The claim of legitimate expectation was unfounded in the circumstances.    The notice was compliant with the union constitution. The date was changed to accommodate Muslim faithful during the Ramadham period by the authorized organ of the union, the Central Administrative Board (CAB), and the minutes of 14th January 2026 were produced as RSD-3. The court has no basis to intervene in the union's lawful activities (Article 41 of the Constitution). The court agreed with the union and the interested party that it could intervene only for non-compliance with the union constitution. This is consistent with provision of article 41 of the Constitution on labour rights, thus- ‘’(41(4) Every trade union and every employers’ organisation has the right—
(a) to determine its own administration, programmes and activities;’’  The court must then have a legitimate reason thus to interfere with the election program of the union, the same being a constitutionally protected  activity of the union.  The reasons must be related to a violation of the union's constitution, as that is the contract between the union and its members.  The court found no probable cause to intervene in the impugned election process. 

38.    The applicant raised the issue of discrimination between members and non-members under Articles 26.18 and 26.19 of the union constitution. Regarding the changes to the union constitution, article 26.18, the court found evidence that the amendments were endorsed by the Special National Delegates Conference held on 23rd November 2024.  This was before the election cycle notice by the interested party, vide letter to all unions dated 25th September 2025 (RSD-11). The allegation that amendments were made in secret and arbitrarily is unfounded.  The court found that the issue of discrimination cannot occur in the circumstances of the applicant, who is not a member. The applicants' position is not comparable to that of union members. She belongs to a special category by choice.  The applicant told the court they had already paid the KShs—3million nomination fee. The union constitution is a document of the members. The applicant was dishonest in her expression of interest; she stated she was a member.  Then it turned out she was not eligible, and she had to pay the KShs 3 million nomination fee.  The allegations that the changes were made to favour the 2nd respondent were unfounded. There was evidence that the constitution was amended on 23rd November 2024 by a special NDC  of the union. The court found that, since the applicant approached the court alleging that the changes were meant to benefit the 2nd respondent and were secret and arbitrary, and having not proved so, I find no basis to interfere with the conduct of the upcoming elections.

39.    Defective affidavit-  The issue was raised by the respondents, who stated that the annexures were not commissioned and sealed as required. The court established that as true. This is a mandatory requirement as held in various decisions of the superior courts. It was true that the documents filed with the affidavit as annexures were not marked as exhibits as required. This is not a procedural technicality. I upheld the decision of the High Court in Patron Internally Displaced Persons & Kisii Steering Committee v Cabinet Secretary, Ministry of Devolution & Planning of National Government [2016] KEHC 6586 (KLR ), where it was stated- ‘ In the end, I find that the Petition is fatally defective for lack of an affidavit in its support. In the same vein, the array documents which the Petitioner attached to the Petition ought to have been properly presented as annextures to the affidavit in which case they, would be identified, marked and treated as exhibits in the case. Consequently, therefore, I find that the said documents have no evidentiary value in this case and are similarly expunged from the record.’’ Also in KCB Bank Kenya Limited v La'Paz Holding Limited (Civil Cause E004 of 2023) [2024] KEELC 6827 (KLR) where the Court held that:- "...where an annexure, is not properly and securely serialized and sealed, the impugned annexure becomes inadmissible and cannot be relied upon by a court of law. Consequently, the only alternative available to a court of law, which is confronted with improper annexures is to have same [annexures] struck out or expunged from the record of the court." The rules concerning the commissioning of affidavits are the same whether in civil claims or constitutional petitions. The compliance with the requirements on commissioning of the affidavit and annexures is mandatory, and Article 159 (2)( c)of the Constitution cannot aid a non-compliant party.  The documents appended to the affidavit in support of the petition are expunged from the record because they were not marked as exhibits, and the paragraphs in the affidavits citing those documents as exhibits are also expunged. In the instant case, the saving grace was that the expunged documents were also produced as exhibits by the respondent.

40.    In the upshot, the court found no merit in the application dated 16th January 2026, and the same is dismissed with costs to the 1st respondent, whose advocate represented the 2nd respondent.  The parties to take direction on the main petition.

41.    It is so ordered.

DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 13TH  DAY OF FEBRUARY, 2026.