Kenya National Private Security Workers Union v M’Mbolo & 8 others (Civil Application E085 of 2024) [2026] KECA 788 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a rival union from recruiting members, because the union was already registered and the applicant had filed a duplicate case elsewhere.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has an arguable appeal
- 2.Whether the intended appeal would be rendered nugatory if the order of injunction sought is not granted
Key legal issues
#Whether the applicant established an arguable appeal
Yes - the question whether the respondents can recruit members bound by the applicant's collective bargaining agreements while promoting their union is arguable.
The court framed the key issue as whether the respondents, exercising freedom of association, could recruit the applicant's members who have collective bargaining agreements with their employers. The court found this a non-frivolous question fit for ventilation on the intended appeal, applying the settled test from Stanley Kangethe Kinyanjui v Tony Ketter that arguability does not require certainty of success.
Whether the intended appeal would be rendered nugatory if the injunction is refused
No - the union is already registered and functioning, and the applicant has filed a parallel suit at Kakamega ELRC seeking similar orders.
Two facts defeated the nugatory-ness limb: the respondents were already registered as officials of KUSPROG after the ELRC decided in their favour, so they cannot be injuncted from running a registered union; and the applicant had filed another suit before the ELRC at Kakamega seeking essentially the same orders, meaning it had an alternative remedy and was hedging its bets, amounting to abuse of court process.
Legal principles established
#- An application under Rule 5(2)(b) must establish both an arguable appeal and that the appeal will be rendered nugatory if the injunction is not granted.
- An arguable appeal is not one which will necessarily succeed but one which is not frivolous.
- A litigant may not pursue the same remedy in different courts of different jurisdictions; doing so amounts to abuse of due process.
Court orders
#- 1.The application under Rule 5(2)(b) is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court (ELRC), Kisumu
- Kisumu ELRC No. 5 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction pending intended appeal)
Relief refused
#Order of injunction restraining the respondents from recruiting private security officers or interfering with the applicant's jurisdiction
The respondents are already registered as officials of KUSPROG following the ELRC judgment, and the applicant has filed a similar suit at Kakamega ELRC, so the appeal would not be rendered nugatory
Costs
The application is dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The applicant has to establish that it has an arguable appeal and secondly, that if the order craved for is not granted, the intended appeal will be rendered nugatory.
As it were, the horse has already bolted from the stable. The respondents cannot be injuncted from running a union that has been oficially registered.
The applicant, cannot in the premises, be allowed to pursue the same remedy before difierent Courts of difierent jurisdictions. That would amount to abuse of the due process of the Court.
It is clear from the foregoing that the application lacks merit and is hereby dismissed with costs to the respondents.
Issues in the judgment
#The judgment states the respondents' union was registered on two different dates
The judgment refers to the ELRC decision both as a favourable judgment for the applicant and as decided in the respondents' favour
The title/number of the application before the Court is not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Private Security Workers Union v M’Mbolo & 8 others (Civil Application E085 of 2024) [2026] KECA 788 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/788/eng@2026-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.