Wananchi Group Ltd v Communication Workers Union & 3 others
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the intended appeal would be rendered nugatory if the injunctive order sought is not granted
Key legal issues
#Arguability of the intended appeal
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.
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.
Whether the intended appeal would be rendered nugatory
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.
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.
Legal principles established
#- 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
#- 1.The application dated 8 December 2025 is dismissed
- 2.No order on costs, considering the respondent filed his replying affidavit and submissions on the morning of the hearing
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
No order on costs, considering the respondent only filed his replying affidavit and submissions on the morning of the hearing
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.
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.
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
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
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.
Issues in the judgment
#Judge name discrepancy between coram and signature block
Judgment of 8 May 2025 attributed to Nduma, J. while the ruling under appeal is by Nderi, J. in the same cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.