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Court of AppealDismissedCivil Application E340 of 2026

Kenya Universities Staff Union v Mahaga & 5 others

Court of Appeal
25 September 2026
1,286 words in judgment
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The bottom line

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The Court of Appeal refused to pause a ruling that lowers university staff retirement to 60, saying money can fix things if the union later wins.

What this practically means

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Executive summary

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The Kenya Universities Staff Union (KUSU) applied under Rule 5(2)(b) of the Court of Appeal Rules for a temporary stay of execution of the judgment and decree of the Employment and Labour Relations Court (J. Keli, J.) dated 19th June 2026 in ELRC Petition No. E230 of 2025, pending an intended appeal. The ELRC had declared clause 4 of the CBA between the Inter-Public Universities Councils Consultative Forum and KUSU - providing a retirement age of 65 for technologists and librarians and 60 for other members - discriminatory, unconstitutional, null and void. KUSU argued the appeal was arguable, questioning whether the ELRC could invalidate a registered CBA without first setting aside its registration and whether it improperly rewrote negotiated terms, and that premature retirement of about 12,000 members would cause irreversible loss. The 1st to 4th respondents countered that the judgment was a negative prohibitory order incapable of being stayed, that the appeal was frivolous given PSC and SRC circulars capping retirement at 60, and that damages or reinstatement would cure any prejudice. Applying the settled twin test, the court found the intended appeal arguable, since whether the ELRC rewrote the CBA and whether differentiated retirement ages constitute discrimination are bona fide points of law. However, it was not satisfied the appeal would be rendered nugatory: salary arrears and pension readjustment would adequately compensate members if the appeal succeeded, whereas there was no material showing employees could refund salaries paid beyond age 60 if it failed. The application was dismissed with costs to the 1st to 4th respondents only.

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 appeal would be rendered nugatory if stay of execution is declined

Key legal issues

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01

Whether the intended appeal against the ELRC judgment invalidating clause 4 of the CBA is arguable

Holding

The intended appeal is arguable, raising bona fide questions whether the ELRC rewrote the CBA and whether differentiated retirement ages constitute unlawful discrimination.

Reasoning

The court held that an arguable appeal need not succeed; a single bona fide point of law suffices. Whether the ELRC wrongly rewrote the negotiated and registered CBA, and whether differential retirement ages of 65 and 60 among union categories amount to unlawful discrimination, were questions worthy of full scrutiny at the hearing of the appeal.

02

Whether refusal of stay would render the appeal nugatory

Holding

The appeal would not be rendered nugatory because affected members can be compensated by salary arrears and pension readjustment if the appeal succeeds, whereas there is no material showing employees could refund salaries paid beyond age 60 if the appeal fails.

Reasoning

The court weighed both directions of risk. Salary, the main consideration in employment, is easily quantifiable, so compensation would be adequate. Conversely, granting stay and the appeal failing would leave no material showing employees could refund salaries paid beyond the 60-year retirement age. The balance therefore favoured declining the stay.

p. 3

Legal principles established

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  • To succeed on an application under Rule 5(2)(b), an applicant must demonstrate that the intended appeal is arguable and that, if stay is declined and the appeal succeeds, the appeal would be rendered nugatory.
  • An arguable appeal need not necessarily succeed; it suffices that it raises a single bona fide point of law worthy of the Court's full scrutiny.
  • Where losses flowing from a judgment are quantifiable and compensable by monetary award, an intended appeal is not rendered nugatory by refusal of stay.

Court orders

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  1. 1.The application dated 29th June 2026 for stay of execution pending appeal is dismissed
  2. 2.Costs of the application awarded to the 1st to 4th respondents only

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
ELRC Petition No. E230 of 2025
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Temporary stay of execution and/or enforcement of the ELRC judgment and decree pending the intended appeal

The applicant failed to satisfy the nugatory aspect: losses are compensable by salary arrears and pension readjustment, whereas employees could not refund salaries paid beyond age 60 if the appeal fails

Costs

Dismissed with costs to the 1st to 4th respondents only

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.

To succeed, the applicant must demonstrate, firstly, 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.
Rule 5(2)(b) threshold
an arguable appeal is not one that must necessarily succeed, but one that raises a single bona fide point of law worthy of the Court's full scrutiny
p. 3Definition of an arguable appeal
Consequently, the application fails and is hereby dismissed with costs to the 1st to 4th respondents only.
p. 3Final orders and costs

Issues in the judgment

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minor

Coram lists 'JW LESSIT' but the signature block reads 'J. LESIIT'; the same judge appears under two spellings.

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, "Kenya Universities Staff Union v Mahaga & 5 others", Case Analysis (2026). Civil Application E340 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1734/eng@2026-09-25

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