Wananchi Group Ltd v Communication Workers Union & 3 others

ii. That this Honourable Court be pleased to issue an order for injunction restraining the 1st respondent or their agents, servants or any other person acting on their behalf from proceeding to compel the Applicant to execute the Recognition Agreement or Collective Bargaining Agreement or any further implementation (sic) any such Recognition Agreement or Collective Bargaining Agreement pending the hearing and determination of the Intended Appeal. iii. That costs of this Application be provided for. 4. The grounds advanced in furtherance of the application were that the applicant had led a Notice of Appeal against the Ruling on 1st December 2025; it had applied for certied copies of the proceedings; the intended appeal was arguable with high chances of success because the ELRC had failed to consider that there was a glaring error apparent on the face of the judgement in that it found that the respondent had not attained the simple majority threshold contemplated by section 54(1) of the Labour Relations Act while a majority of the employees had left employment before the delivery of the judgment; the respondent had moved to compel the applicant to sign a recognition agreement; the ELRC court had failed to nd that grounds for review had been demonstrated and that there was a real danger that the respondent would move to execute the judgment. 5. The application was heard on 9th March 2026. Learned counsel Mr. George Ogembo appeared alongside learned counsel Mr. Richard Kamotho for the applicant. Learned counsel Mr. Bundotich appeared for the 1st respondent. The 2nd to 4th respondents did not appear despite service of a hearing notice through email on 23rd February 2026. 6. It turned out that the respondent had led a replying adavit and submissions on the morning of the hearing and because of the late ling, the Court allowed Mr. Bundotich to address it on questions of law only. 7. Mr. Ogembo submitted on the twin questions of whether the intended appeal was arguable and whether the same would be rendered nugatory if the injunctive order was not granted. 8. According to Mr. Ogembo, it was arguable whether the ELRC was correct when it found in the judgment delivered on 8 May 2025 that the 109 unionisable employees out of 219 recruited by the respondent constituted a simple majority as contemplated by section 54(1) of the Labour Relations Act. Counsel urged that the nding by the ELRC was mathematically erroneous since the number of unionisable employees recruited by the respondent amounted to 49.77%, falling short of the legal threshold. 9. Counsel also contended that the decision by the ELRC on 20 November 2025 that it was functus ocio and could not review the judgment was an arguable point worth consideration by this Court. 10. Lastly, on the limb of an arguable point, counsel asserted that the determination of the question of the subsequent withdrawal of membership by an employee from a trade union before the delivery of judgment constituted discovery of new evidence which could implicate the review jurisdiction of the ELRC but which the court ignored. 11. On the intended appeal being rendered nugatory if the injunction sought was not granted, Mr. Ogembo submitted that the ELRC had directed the applicant to grant the Respondent recognition within 14 days of the judgment and that the respondent had started the process to enforce compliance by threatening to move the court for contempt. According to counsel, the Intended Appeal would be rendered nugatory since there existed a real risk of industrial disharmony in the workplace if the respondent insisted in demanding recognition. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1829/eng@2026-09-25 2

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12. On his part, Mr. Bundotich urged the Court to reject the application on the grounds that the applicant had not shown how the Intended Appeal would be rendered nugatory because it had not appealed against the judgment which had been sought to be reviewed. 13. The principles governing the exercise of this Court's jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules are well set out. In Trust Bank Ltd & Ar v Investech Bank Ltd & 3 Ors (2000) eKLR, this Court stated: 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 rstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding principles but these principles must be considered against facts and circumstances of each case… 14. The principles were further considered by this Court in Stanley Kangethe v Tony Keter & 5 Ors (2013) eKLR as follows: An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. In considering an application brought under Rule 5(2)(b) the Court must not make denitive or nal ndings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal. The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means triing. 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. 15. The applicant urged that it was arguable whether the ELRC was correct in its conclusion that it could not exercise its review jurisdiction because it was functus ocio. The applicant also submitted that it was arguable whether the ELRC was legally correct in declining to exercise its jurisdiction when there appeared to be a mathematical error. 16. In our view, these are arguable points worth consideration by this Court on appeal. 17. But the applicant had to further surmount the nugatory aspect of the Intended Appeal. 18. According to the applicant, the intended appeal would be rendered nugatory because of the danger or risk of the respondent insisting on enforcing the judgment. 19. 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. 20. In conclusion, we nd 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 led his replying adavit and submissions on the morning of the hearing. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. W. KARANJA ....................................... JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1829/eng@2026-09-25 3

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M. NJUGUNA ....................................... JUDGE OF APPEAL RADIDO S. OKIYO ....................................... 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/2026/1829/eng@2026-09-25 4

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