Kenneth Ouma Boro, Bernard Obonyo, Kevin Mijungu, Paul Ouru Migwambo, Francis Marua Mahaba, Millie Mulonga, Seth Kanyango, John Adwar, Rachel Boke Erustus & Jacinta Riro Robi v Kenya Union Of Post-Primary, Education Teachers, Henri Otunga, George Okatch, Samuel Orwa Okinyi, Rollex Owino, Florence Adhiambo Ouma, Bon Ogalo, Kevin Odhiambo Otieno, Fredrick Nyabuogi, Sheila Omuga & Charity Omolo [2021] KEELRC 1828 (KLR)

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

PETITION NO. E005 OF 2021

IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 27, 36, 41 AND 47 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF  ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 36 AND 41 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF RULES 10, 11, 22, 23 AND 24 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013

AND

IN THE MATTER OF  SECTIONS 4, 33 AND 34 OF THE LABOUR RELATIONS ACT

AND

IN THE MATTER OF  REGULATIONS 2, 5 AND 8 OF THE KENYA UNION OF POST-PRIMARY EDUCATION TEACHERS REGULATIONS (REGULATIONS FOR BRANCH ELECTIONS) 2021

AND

IN THE MATTER OF  REGULATIONS 2, 5 AND 8 OF THE KENYA UNION OF POST-PRIMARY EDUCATION TEACHERS REGULATIONS (REGULATIONS FOR BRANCH ELECTIONS) 2021

AND

IN THE MATTER OF  ELECTION OF OFFICIALS OF THE KENYA UNION OF POST-PRIMARY EDUCATION TEACHERS CARRIED OUT ON 16TH JANUARY 2021

BETWEEN

KENNETH OUMA BORO                               1st PETITIONER

BERNARD OBONYO                                    2nd PETITIONER

KEVIN MIJUNGU                                           3rd PETITIONER

PAUL OURU MIGWAMBO                            4th PETITIONER

FRANCIS MARUA MAHABA                        5th PETITIONER

MILLIE MULONGA                                       6th PETITIONER

SETH KANYANGO                                         7th PETITIONER

JOHN ADWAR                                              8th PETITIONER

RACHEL BOKE ERUSTUS                            9th PETITIONER

JACINTA RIRO ROBI                                 10th PETITIONER

VERSUS

KENYA UNION OF POST-PRIMARY

EDUCATION TEACHERS                            1st RESPONDENT

HENRI OTUNGA                                         2nd RESPONDENT

GEORGE OKATCH                                     3rd RESPONDENT

SAMUEL ORWA OKINYI                           4th RESPONDENT

ROLLEX OWINO                                       5th RESPONDENT

FLORENCE ADHIAMBO OUMA              6th RESPONDENT

BON OGALO                                             7th RESPONDENT

KEVIN ODHIAMBO OTIENO                   8th RESPONDENT

FREDRICK NYABUOGI                             9th RESPONDENT

SHEILA OMUGA                                      10th RESPONDENT

CHARITY OMOLO                                  11th RESPONDENT

JUDGMENT

1.  The Petitioners moved the Court on 20 January 2021, alleging that the Kenya Union of Post-Primary Education Teachers (the Union), Migori branch elections held on 16 January 2021 were unlawful because the Union’s Election Regulations had not been complied with. It was further alleged that non-members had been allowed to vote.

2.  On the same day, the Petitioners filed a Motion under a certificate of urgency seeking certain interim reliefs.

3. When the Motion was placed before the Court, it directed that service be effected upon the Respondents.

4.  On 25 January 2021, the Court allowed the Petitioners to file and serve an Amended Petition.

5. The Court further directed that the Motion and Amended Petition be taken together. The parties were also directed to file and exchange affidavits and submissions.

6. The Amended Petition was filed on 3 February 2021, and the Union filed Grounds of Opposition, Reply to Petition on 12 February 2021. The 2nd to 11th Respondents filed a Reply to the Amended Petition and a replying affidavit on 18 February 2021.

7. The Petitioners filed their submissions on 16 March 2021 (should have been filed/served before 3 March 2021), and they identified the Issues for adjudication as:

(i)   Whether the Petitioners have established a case for setting aside the elections and/or nullification of the elections held on 16th January 2021.

(ii)   Whether the Migori KUPPET branch elections were procedural, lawful and complied with the constitution and Regulations of KUPPET.

8. The Union filed its submissions on 16 March 2021, and it adopted the Issues as identified by the Petitioners.

9.  The 2nd to 11th Respondents filed their submissions on 24 March 2021, and they identified the Issues for determination as:

(i)   Whether inspection of voters register was allowed to members of the Union?

(ii)   Whether non-qualified persons were allowed to vote and Migori branch members were barred from voting?

(iii)   Whether any election regulations were violated and/or disregarded?

(iv)   Whether the elections were free and fair?

10. The Court has considered the Motion, Amended Petition, affidavits and submissions on record.

Lawful/Procedural elections

11.  The Petitioners challenged the electoral process on varied grounds, and the Court will consider them.

Inspection of voters register

12. One of the grounds advanced by the Petitioners was that the candidates were not allowed to check the voter register and that the register was not deposited with the County Labour Officer.

13. The Petitioners did not disclose the dates they made attempts to check the voters' register. Although asserting that a letter was written by their advocates demanding compliance, a copy of the letter was not filed in Court.

14.  The Court notes an affidavit from the Returning Officer that a meeting was held with all the candidates prior to the election and that all voting materials were inspected and verified.

15. The Petitioners did not prove this ground or demonstrate how it affected the outcome of the elections.

Non-members voting

16. The Petitioners also alleged that non-qualified members were allowed access to materials and vote. The name of one person was disclosed.

17. There was no evidence that the named person accessed voting material or interfered with the voting material. There was no evidence that she voted.

Members not allowed to vote

18. The Petitioners further challenged the elections on the ground that some members were not allowed to vote, and to support the allegations, two affidavits from Millicent Anyange and May Vincent Alande were filed.

19.  Despite the affidavits, these two did not file any evidence to show that they were members of the Union in good standing or qualified to vote.

Inconsistent tallies

20. The Petitioners also assailed the elections on the ground that 1535 persons voted for the position of Chairperson while 1539 voted for the position of Executive Secretary.

21.  A copy of the details of elected officials filed in Court does not support the allegation. The Chairperson got 1022 votes, according to the returns.

22. From the above, the Court finds that the Petitioners did not discharge the evidential burden expected of them.

23.   The Petition is dismissed with costs.

Delivered through Microsoft teams, dated and signed in Nairobi on this 21st day of April 2021.

Radido Stephen, MCIArb

Judge

Appearances

For Petitioners                           Cheboi Ouma & Associates Advocates

For 1st Respondent                     Otieno C.O. Ayayo & Co. Advocates

For 2nd to 11th Respondents       F. Ndar Omollo & Associates Advocates

Court Assistant                           Chrispo Aura