Kenya Universities Staff Union v Mahaga & 5 others

2. The application is supported by the adavit of Dr. Charles G. Mukhwaya, the General Secretary of KUSU sworn on 29th June 2026, and is opposed through a replying adavit sworn by the 1st respondent Annmarie Mahaga on 2nd July 2026 on behalf of 1st to 4th Respondents. 3. We heard the application on 17th August 2026 when learned counsel Mr. Benjamin Bogongo appeared for the applicant while learned counsel Mr. Onenga appeared for the 1st to 4th respondents. There was no appearance for the 5th and 6th respondents despite notice of hearing having been served. Counsel present relied on their respective written submissions with oral highlights. 4. It was urged for the applicant that the intended appeal is arguable and raises serious legal issues; that the impugned judgment eectively altered and rendered inoperative a negotiated and registered CBA allowing the retirement age of aected employees to be reduced to 60 years from 65 years; that there is a bona de question whether a judge of concurrent jurisdiction could invalidate a provision of a duly registered CBA without rst setting aside or reviewing its registration; that there is also the question whether the ELRC improperly re-opened, re- determined, and rewrote a negotiated CBA outside the statutory framework for variations; and that there is also the question of the status of the registered CBA, its core provisions having been rendered ineective. 5. It was submitted further that the appeal will be rendered nugatory unless the order sought is granted; that the implementation of the judgment will cause irreversible disruption to approximately 12,000 members through premature retirement, loss of salaries, pension contributions, medical cover, and career progression; and that damages would not provide adequate remedy, and neither would reinstatements, in the event of the appeal ultimately succeeding, be practical. 6. Counsel for the applicant cited numerous authorities in support of the application, including the case of Cabinet Secretary, National Treasury and Economic Planning & 5 Others vs. Tony Gachoka & 9 Others, Civil Application No. E261 of 2026 [2026] KECA 1218(KLR); Paul Wandati Mbochi vs. Stephen Kimotho Karanja [2020] eKLR; Stanley Kang’ethe Kinyanjui vs. Tony Keter & 5 Others [2013] eKLR; Cytonn Investments Partners Four LLP & 6 Others vs. The Ocial Receiver & 2 Others [2026] eKLR, and Central Bank of Kenya vs. Benjamin Bogongo & CS Treasury [2023] eKLR. 7. In opposition to the application, the 1st to 4th respondents urge that the judgment of the ELRC sought to be stayed is, in substance and in form, a negative and prohibitory order and nothing positive to execute or capable of being stayed. It is urged that the intended appeal is frivolous and lacks any bona de legal triable issue because the attempt to raise the retirement age to 65 for select positions violates clear circulars and directives from the Public Service Commission (PSC) and Salaries and Remuneration Commission (SRC), which cap non-teaching sta retirement at 60 years; that a previous decision, namely, KUSU & 3 Others vs. Masinde Muliro University (2021) eKLR established 60 years as the retirement age for KUSU members; and that union leaders negotiated self-serving benets strictly for their own narrow job categories while ignoring the wider membership. 8. It was submitted that the application does not meet the threshold for the grant of the orders sought; that the ELRC in its decision merely gave eect to public policy; and that, should the appeal ultimately succeed, the aected members of the applicant can be reinstated or fully compensated with monetary damages, arrears, and pension adjustments. Cited was Paul Wandati Mbochi vs. Stephen Kimotho Karanja (Civil Application No. E011 of 2020[2021] KECA 637(KLR). It was also urged that granting the orders sought would eectively perpetuate illegal discrimination and lead to the unlawful expenditure of public funds and violate constitutional principles on public nance management. 9. We have evaluated the application, the adavits, and the submissions. Counsel for the parties are evidently cognizant of the legal principles governing applications of this nature. To succeed, the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1734/eng@2026-09-25 2

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applicant must demonstrate, rstly, that the appeal or intended appeal is arguable (not frivolous); and secondly, that if the order sought is declined and the appeal subsequently succeeds, the results of the appeal would be rendered nugatory. 10. As to whether the intended appeal is arguable, we are mindful that an arguable appeal is not one that must necessarily succeed, but one that raises a single bona de point of law worthy of the Court's full scrutiny. In that regard the question whether ELRC eectively, and wrongly, re-wrote the terms of the CBA and whether dierentiated retirement ages among union categories constitute unlawful discrimination is, in our view, arguable. The intended appeal is not frivolous. 11. On the nugatory aspect, we are not satised that the appeal will be rendered nugatory if we decline to grant the orders sought. We say so because if upon hearing the appeal the Court nds that the retirement age ought to have been 65 years, the aected KUSU members can be fully compensated by payment of salary arrears, or even readjustment of pension benets. Although there is more to be gained by an employee from employment beyond the salary, the main consideration is the salary, which, if the appeal succeeds is easily quantiable in terms of what the aected members of the applicant may have lost. See Multimedia University & Another vs. GNN (Civil Application 225 of 2013) [2014] KECA 850 (KLR). Conversely, should we grant the orders sought and the appeal ultimately fails, there is no material to show that the aected employees would be in a position to refund the salaries that would have been paid beyond the 60 years retirement age. 12. Consequently, the application fails and is hereby dismissed with costs to the 1st to 4th respondents only. 13. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. S. GATEMBU KAIRU, (P), FCIArb, CArb. ………………..……………… JUDGE OF APPEAL J. LESIIT ……………………………… JUDGE OF APPEAL DR. K. I. LAIBUTA, CArb, FCIArb. ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1734/eng@2026-09-25 3

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