Ngethe v Kenya Universities Staff Union & 4 others [2026] KEELRC 15038 (KLR)

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

PETITION NO. E105 OF 2026

(Before Hon. Justice Dr. Jacob Gakeri)

LUCY NGETHE……………..………………….………….....…. PETITIONER

VERSUS

KENYA UNIVERSITIES STAFF UNION ………….…..…1ST RESPONDENT

THE SECRETARY GENERAL

KENYA UNIVERSITIES STAFF UNION…………………..2ND RESPONDENT

JOHN NJOROGE……………………………………………...3RD RESPONDENT

MABEL MUKHEBO…………………………………………..4TH RESPONDENT

THE REGISTRAR OF TRADE UNIONS…………….…..…5TH RESPONDENT

RULING

On 17th June 2026, the court delivered a ruling on the Motion dated 1st April 2026 which had sought a temporary injunction to restrain the 3rd Respondent from substantively assuming the position of chairperson of the 1st Respondent’s Jomo Kenyatta University of Science & Technology (JKUAT) Branch pending the hearing and determination of the petition and costs of the Application and the Ruling was delivered on 18th June 2026 as scheduled.

Subsequently, counsel for the 3rd, Respondent filed a Notice of Motion dated 1st July 2026 under Certificate of Urgency seeking various orders, and directions on service responses and submissions were issued on 23rd September 2026 to ensure compliance. A ruling date was scheduled for on 12th October 2026.

The Applicant prays for orders THAT-

1. Spent,

2. This Honorable court be pleased to review its Ruling delivered on 18th June 2026.

3. Upon such review, this Honourable court be pleased to determine the second limbo of the 3rd Respondent’s Notice of Preliminary Objection dated 15th April 2026, namely that the suit is an election petition disguised as a constitutional petition fails to meet the threshold of a constitutional petition.

4. Consequently, this Honourable court be pleased to issue such further or consequential orders as it may deem just.

5. Costs of this application be in the cause.

The Motion is expressed under Section 16 of the Employment and Labour Relations Court Act Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2024 and Section. 1A, 1B and 3A of the Civil Procedure Act and is based on the grounds outlined on its face and the Supporting Affidavit of Mr. John Njoroge sworn on 1st July, 2026.

The Motion is grounded on the premises that the Preliminary Objection comprised two distinct legal grounds and the court addressed the first ground relating to compliance with the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025 but did not pronounce itself on the second independent ground, that the petition was an election petition disguised as a constitutional petition and therefore failed to meet the threshold of a constitutional petition. That the court’s failure to pronounce itself on the issue constitutes a self-evident error apparent on the face of the record and warrants review to enable the court to complete its determination rather than to alter or reconsider its findings.

That the parties fully addressed the court on the second ground through written submissions and cited authorities. That the omission was an error apparent on the face of the record and/or sufficient reason to warrant review under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules and the Applicant stood to suffer prejudice if the issue raised in the Preliminary Objection remained undermined and it was in the interest of justice that the court determines all issues properly placed before it.

Respondent’s case

The petitioner filed Grounds of Opposition dated 16th September 2026 together with a Replying Affidavit of even date sworn by the petitioner, contending that the application was incompetent, misconceived, bad in law, frivolous and an abuse of the court process.

The petitioner further contended that there was no error apparent on the face of the record and the issues were not distinct and independent. That the court, having found that petition complied with the ELRC Practice Directions, 2025, implied that it was a competent election petition as opposed to a disguised constitutional petition.

That the alleged failure to give reasons or make a pronouncement on every submission does not constitute an error on the face of the record.

The petitioner contended that the Application was an appeal disguised as a review sought to make the court sit on appeal over its own ruling and no prejudice had been demonstrated. The petitioner deponed that having determined that the petition before the court was not defective, ground number 2 of the Preliminary Objection was determined by implication and the failure to use the phrase that ground 2 had been determined was not an error apparent on the face of the record. That the error ought to be self-evident and required no elaborate argument to establish.

Applicant’s submissions

Counsel submitted on for four issues including costs. As to whether the applicant had established a basis for review, counsel relied on the decisions in National Bank of Kenya Ltd v Ndungu Njau (1997) KEC 71 (KLR), Muyodi v Industrial and Commercial Development Corporation & another (2006) 1EA 243 to urge that a review may be granted where there was need to correct an apparent error or omission by the court and the same is manifest and does not require a long-drawn process of reasoning.

Reliance was further placed on Lachab Brothers Ltd v Transport Workers Union (2025) KECA 848 (KLR) on the distinction between accidental error and re-opening of a substantive determination to submit that the issue not determined was distinct and two issues had been raised, that whereas the first dealt issue with compliance with the Directives the second issue was challenging the character and competence of the proceedings and it was not determined.

Counsel submitted that where the court identified an issue for determination and it is undetermined, a basis for review is established.

Reliance was placed on National Bank of Kenya Ltd v Ndungu Njau (Supra) on the recognition of an “error or omission” and urge that the Petitioner’s contention that the issue were the same was untenable citing the decision in Murigi v Lyt Kamer & 3 others (2024) KECA and Attorney General (KLR), for the proposition that parties are required to put before the court their entire case for the court’s determination.

Counsel submitted that the petitioner’s argument that the instant application was an appeal lacked a basis in that the application was seeking the determination of an issue raised previously.

That the error or omission was discernible by a simple comparison of the Preliminary Objection and the ruling of the court an omission, there was no basis for an inference and a review was appropriate, the petitioner’s response did not cure the omission the issue raised was material and required consideration and the application was made timeously.

Counsel submitted that a court of law had a duty to determine the issues raised before it. Similarly, counsel contended that there was a distinction between a review and an appeal and the instant application was a review as it sought the determination of an issue who conclusion had not been made and was based the Preliminary Objection exclusively.

According to counsel, while the decision in Lochab Brothers Ltd v Transport Workers Union (Supra) held that the Court’s correction jurisdiction cannot be used to re-open substantive questions, the decisions in Mugodi v I.C.D C & another (Supra) and National Bank of Kenya Ltd v Ndung’u Njau are authorities for the meaning of an error apparent on the face of the record.

Counsel urged the Court allow the Motion, review the ruling and address the second limb of the Preliminary Objection.

Petitioner’s submissions

As to whether the Ruling delivered on 18th June had an error apparent on the face of the record, counsel for the Petitioner submitted that the error must be self-evident as held in Muyodi v ICDC & another (Supra).

Counsel further submitted that the two limbs of the Preliminary Objection were two sides of the same coin and the court responded to both by finding that the petition met the criteria for an election petition.

Counsel cited the decision in John Mundia Njoroge v Cecilia Muthoni, Stephen Githua Kimani v Nancy Wanjira for the proposition that failure to determine an issue placed before the court is not a ground for review but a ground for appeal, to urge that the Application on record was raising an issue suitable for appeal.

Finally, counsel urged that since the main petition was yet to be heard and determined, no substantive rights had been lost.

The principles that govern review of judgments, rulings and orders are well settled.

Section 16 of the Employment and Labour Relations Court Act provides that;

The court shall have power to review its judgments, awards, orders or decrees in accordance with the Rules.

Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2025 Provides.

(1) A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed may within reasonable time apply for a review of the judgment or ruling-

(a) if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made.

(b) an account of some mistake or error apparent on the face of the record;

(c) if the judgment or ruling requires clarification; or

(d) for any other sufficient reasons.

The applicant’s Notice of Motion is grounded on Rule 74 (1) (b) of the Rules. Counsel submitted that by the court’s failure to determine the second limb of the applicant’s Preliminary Objection the omission was an error or mistake on the face of the record.

In National Bank of Kenya Ltd v Ndungu Njau (Supra), the Court of Appeal held:

“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evidence and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter nor can it be a ground for review that the court proceeded on an incorrect ex position of the law and reached an erroneous conclusion of the law. Misconstruing a statute or other provision of law cannot be a ground for review.”

The concept of error apparent on the face of the record was aptly captured in Muyodi v Industrial and Commercial Development Corporation and another (Supra) as follows:

“In Nyamongo & Nyamongo v Kogo (2001) E.A 174, this court said that an error on the face of the record cannot be defined precisely or exclusively, there being an element of indefiniteness inherent in its very nature and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two options, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”

See also Edison Kanyabwera v Pastori Tumwebaze (2005) v ESC 1, Outa v Okello & 3 others (2017) KESC 25 (KLR).

In the latter, the Supreme Court held-

“By its nature the Slip Rule permits a court of law to correct errors that are apparent on the face of the Judgment, Ruling, or Order of the court. Such errors must be so obvious that their correction cannot generate any controversy, regarding the Judgment or decision of the court. By the same token such errors must be of such nature that their correction would not change the substance or the judgment of alter the clear intention of the court…”

See also Francis Njoroge v Stephen Maina Kamore (2018) eKLR and Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya (2019) eKLR.

Finally, in John Peter Kamau Ruhangi v Kenya Reinsurance Corporation (2012) KECA 7 (KLR), the Court of Appeal held:

“…This court made that quite clear in the case of Nyamongo & Nyamongo Advocates v Kogo (2001) IEA 173. An error apparent on the face of the record includes an omission which must also be glaring and self-evident. It is not one that requires an elaborate argument or serious scrutiny of the record to be established - National Bank of Kenya Ltd v Ndungu Njau Civil Appeal No. 211 of 1996 (unreported). As was stated by the Nigerian Court of Appeal in the case of Peter Cheshe & another v Nicon Hotels Ltd & another, Appeal No. CA/A/83/M/98 that an error on the face of the record under the slip rule whose jurisdiction, is limited to correction of errors, mistakes or omissions in the ruling or judgment and does not permit granting orders not made or extending the scope of the ruling.”

A cursory glance of the ruling delivered by the court on 18th June 2026 shows that the 3rd Respondent raised two objections and the second was not addressed by the court, an inadvertent omission which the applicant seeks correction of. Contrary to the petitioner’s counsel’s submission, the omission is glaring and requires no long drawn arguments to bring out and in the court’s view, it is the omission falls within the court’s review jurisdiction and the court so finds.

Having found as above, it behooves the court to determine the second limb of the 3rd Respondent’s Preliminary Objection.

Counsel posited that the suit filed by the petitioner was an election petition disguised as a petition and did not meet the threshold or a petition strictu sensu.

Counsel for the 3rd Respondent submitted on three issues with the last being whether the dispute met the prerequisites of a constitutional petition. Counsel relied on the Mutunga Rules on the contents and manner of filing Constitutional petitions and the decisions in Anarita Karimi Njeru v Attorney General (No.1) 1979 1 KLR 154 and the decision in Trusted Society of Human Rights alliance v Attorney General & 2 others; Mumo Matemu (Interested Party) Kenya Human Rights Commission & another (Amicus Curie) (2012) KEHC 2480 (KLR) to urge that a petition required reasonable precision in its framing and citing of constitutional provisions was not sufficient citing the decision in Gichana v Attorney General & 2 others (2024) KECA 1680 (KLR) and Muthinja & another v Henry & 1756 others (2015) KECA 304 (KLR) to reinforce the submission.

Counsel further submitted that the instant petition did not disclose any genuine constitutional issue as it was an election petition.

It is trite law that the Constitution of Kenya (Protection Of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (Mutunga Rules) prescribe the form, content and manner of filing of petitions before the Employment and Labour Relations Court (ELRC) by dint of rule 10(1) of the Employment and Labour Relaitons Court (Procedure) Rules 2024, and in the case of Judicial Review proceedings, the applicant is required to comply with sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules.

Needles to belabour, the typical process of filing suits in the ELRC is vide a statement of claim or memorandum of claim.

The Employment and Labour Relations Court (Procedure) Rules are silent on the institution and litigation of Trade Union Election Disputes, which are governed by the Trade Unions (Election Petition) Rules, Kenya Gazette vol CXVI NO. 71 dated 13th June 2014 and the Employment and Labour Relations Court (Trade Union Election Disputes) Procedure and Practice Directions, 2025.

Both the Rules and the Directives define the phrase, “election petition” to means

“a Trade Union election Petition.”

Under Rule 2 of the Trade Union Elections (Election Petition) Rules “Petitioner” in relation to an election Petition means the person who files or lodges an election petition arising from an election process.

The Directives include a person who files a cross-petition as well.

In Anarita Karimi Njeru v Republic (1979) KEHC 30 (KLR), the court state:

“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 should set out with a reasonable degree of precision that which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.”

While addressing the issue of precision in pleadings in the context of the principle in Anarita Karimu Njeru v Republic (Supra), in Matemu v Trusted Society of Human Rights Alliance & 5 others (2013) KECA 445 (KLR), the Court of Appeal expressed itself as follows:

“We cannot but over emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process substantive justice and exercise of jurisdiction are a function of precise legal and factual claims.

However, we also note that precision is not coterminous with exactitude. Restated although precision must remain a requirement as it is important it demands neither formulaic prescription of the of actual claims nor formalistic utterances of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearing, submission and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.”

Bearing in mind that the instant suit is a Trade Union election petition and which, the court found to be substantially compliant with the Employment and Labour Relation Court (Trade Union Election Disputes) Procedure and Practice Directions, the court is satisfied that the petition meets the Constitutional threshold to be properly before this court.

Finally, and consistent with the provisions of Rule 74 (5) of the Employment and Labour Relations Court (Procedure) Rules 2024, the ruling dated 18th June 2026 is reviewed to the extent that the foregoing determination of the 2nd limb of the 3rd Respondent’s Preliminary Objection is concerned.

In the circumstances, parties shall bear their own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 3RD NOVEMBER, 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