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Court of AppealDismissedCivil Application E738 of 2025

Wananchi Group Ltd v Communication Workers Union & 3 others

Court of Appeal
25 September 2026
1,441 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to stop Wananchi Group from signing a union recognition agreement, because such agreements can legally be reversed later.

What this practically means

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Executive summary

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Wananchi Group Ltd applied to the Court of Appeal under Rules 5(2)(b) and 44 of the Court of Appeal Rules for an injunction restraining the Communication Workers Union from compelling it to execute a recognition or collective bargaining agreement pending an intended appeal. The intended appeal targeted the ELRC ruling of 20 November 2025 (Nderi, J.) declining to review a judgment of 8 May 2025 (Nduma, J.) ordering the applicant to grant and sign a recognition agreement within 14 days. The applicant argued the intended appeal was arguable on three fronts: the ELRC's finding that 109 of 219 unionisable employees constituted a simple majority under section 54(1) of the Labour Relations Act was mathematically erroneous (49.77%); the court erred in holding it was functus officio and could not review its own judgment; and post-judgment employee withdrawals from the union amounted to new evidence implicating the review jurisdiction. The court, applying Trust Bank v Investech and Stanley Kangethe v Tony Keter, accepted these as arguable points. However, on the nugatory limb, it found the applicant made only a bare contention of enforcement risk and industrial disharmony and failed to demonstrate that signing a recognition agreement would render the appeal nugatory, since section 54 of the Labour Relations Act envisages termination or revocation of a recognition agreement. The application was dismissed with no order on costs, the court noting the respondent filed his replying affidavit and submissions only on the morning of the hearing. The 2nd to 4th respondents did not appear despite service.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the intended appeal would be rendered nugatory if the injunctive order sought is not granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable: the simple-majority computation under section 54(1) of the Labour Relations Act, the functus officio ruling on review, and the treatment of post-judgment membership withdrawals as new evidence were all arguable points.

Reasoning

The court applied the settled Rule 5(2)(b) test, holding that an arguable appeal need not succeed but must not be frivolous. The mathematical-error contention, the functus officio question and the new-evidence/review-jurisdiction question were all held worthy of full consideration on appeal without making definitive findings.

p. 3
02

Whether the intended appeal would be rendered nugatory

Holding

The nugatory limb failed: apart from asserting a risk of enforcement and industrial disharmony, the applicant did not demonstrate how the signing of a recognition agreement would render the appeal nugatory, given that section 54 of the Labour Relations Act envisages termination or revocation of a recognition agreement.

Reasoning

The court found the applicant made a bare contention without demonstrating irreversibility or inadequacy of damages. Because the statutory regime allows a recognition agreement to be terminated or revoked, compliance with the ELRC order was reversible, so the appeal would not be rendered nugatory.

p. 3

Legal principles established

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  • To succeed under Rule 5(2)(b) an applicant must show the appeal or intended appeal is arguable and that, if successful, it will be rendered nugatory unless a stay is granted.
  • An arguable appeal need not necessarily succeed; it is one that is not frivolous and ought to be argued fully, and the court must not make definitive findings of fact or law at the interlocutory stage.
  • Nugatory means not only worthless, futile or invalid but also trifling; reversibility and adequacy of damages are relevant to whether an appeal will be rendered nugatory.

Court orders

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  1. 1.The application dated 8 December 2025 is dismissed
  2. 2.No order on costs, considering the respondent filed his replying affidavit and submissions on the morning of the hearing

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Employment and Labour Relations Court at Nairobi
Cause No. E024 of 2022
Jurisdiction invoked
Rules 5(2)(b) and 44 of the Court of Appeal Rules

Relief refused

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Injunction restraining the 1st respondent from compelling execution of the Recognition Agreement or Collective Bargaining Agreement pending the intended appeal

The applicant demonstrated arguability but failed the nugatory-principle limb; section 54 of the Labour Relations Act envisages termination or revocation of a recognition agreement

p. 3

Costs

No order on costs, considering the respondent only filed his replying affidavit and submissions on the morning of the hearing

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion, we find that although the applicant has demonstrated that the intended appeal is arguable, it has not met the nugatory principle limb and thus the application dated 8 December 2025 is dismissed with no order on costs considering the respondent only filed his replying affidavit and submissions on the morning of the hearing.
Final orders - dismissal of the stay application
The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable
p. 3Rule 5(2)(b) jurisdiction and twin principles
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved
p. 3Meaning of nugatory
Apart from making the contention, the applicant did not demonstrate how the signing of a recognition agreement with the respondent would render the appeal nugatory considering that the statutory regime under section 54 of the Labour Relations Act envisages the termination or revocation of a recognition agreement.
p. 3Failure of the nugatory limb - reversibility of a recognition agreement

Issues in the judgment

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minor

Judge name discrepancy between coram and signature block

minor

Judgment of 8 May 2025 attributed to Nduma, J. while the ruling under appeal is by Nderi, J. in the same cause

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wananchi Group Ltd v Communication Workers Union & 3 others", Case Analysis (2026). Civil Application E738 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1829/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.