Krystalline Salt Limited v Kenya Chemical Workers Union

agreement, the respondent had 27 employees in its membership out of the applicant’s 582 employees hence, it fell short of the simple majority of members as provided under Section 54 of the LRA. 3. Consequently, the applicant issued a notice to terminate the Agreement within a month as per Clause 4 thereof. It was contended that the matter was before the National Labour Board as per Section 54 (5) of the LRA. The applicant stated that since the respondent’s membership had reduced to 2 employees, there was nothing to negotiate. It was argued that the orders being sought ought not to be issued as the continued negotiation of the CBA lacked a legal basis. 4. The ELRC framed one issue for determination, namely, whether it should direct parties to proceed and negotiate a CBA. The learned Judge held that recognition of a trade union is not a single item, but a process and a trade union must achieve the requisite threshold to earn recognition; that, once the recognition is achieved, it cannot be negated even through reduction of membership unless the procedures under Section 54(5) of the LRA are followed; that reduction of members is not justication to stall CBA negotiations; that the purpose of the Agreement signed on 12th September 2024 was to advance the negotiations of the CBA to the next level, the rationale being that the respondent had achieved the simple majority, hence the Agreement. 5. In the end, the ELRC allowed the claim to the extent that the respondent was entitled to seek negotiations with the applicant on the terms and conditions of employment and to execute a CBA to be registered with the court. The ELRC directed that the respondent does submit to the claimant the proposed CBA within 7 days; that the applicant do make its counter proposal within 14 days of receipt; that parties do meet before the Labour Ocer Mombasa within 21 days to agree on the proposals; that the Deputy Registrar Mombasa, ELRC do serve the orders on the County Labour Ocer; and that parties do le a consent if they reach an agreement and report to court on 9th December, 2025. 6. The decision aggrieved the applicant which lodged an appeal to this Court and also led the instant Notice of Motion dated 3rd February, 2026 brought under Sections 3A and 3B of the Appellate Jurisdiction Act, Rule1(2), 5(2)(b) and 43 of the Court of Appeal Rules, 2022, the inherent power of the Court and all enabling provisions of the law seeking the following orders: - 7. “ i. Spent. ii. Spent. iii. That pending the hearing and determination of the intended appeal, the Court be pleased to stay the execution of the judgement and decree of Mbaru, J. at the Employment and Labour Relations Court at Mombasa delivered on 30th October 2025 in the Employment and Labour Relations Cause No. E067 of 2025. iv. That pending the hearing and determination of the intended appeal, the Court be pleased to stay further proceedings in the Employment and Labour Relations Cause No. E067 of 2025. iii. That costs of and incidental to this application be costs in the intended appeal.” The application is supported by the grounds on its face and the adavit of Hasmita Patel, the applicant’s Managing Director 3rd February, 2026. sworn on It was deposed that the parties 24th May, 2024; entered into an Agreement dated 12th September, 2024 as directed by the Court through a judgement dated the time the dispute https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1895/eng@2026-09-25 2

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was reported to the that by Ministry of Labour and Social Protection, the respondent’s membership was 27 employees (4.7%) while they needed 292 (50% +1) to reach the legal threshold; and that, as per Clause 4 of the Agreement, the respondent wrote to the applicant informing it of their intention to terminate the Agreement. 8. The applicant deposed that it led an application to the National Labour Board seeking termination of the Recognition Agreement in accordance with of Section 54 the LRA; that the same was pending to be actioned as at ling of the application, and that the membership of unionisable employees stands at 2 employees which is not a simple majority as per Section 54(1) of the LRA which is couched in mandatory terms; that a CBA is a consensual agreement between parties who negotiate willingly; that courts play no role in conclusion of a CBA; and that the respondent led the suit in the ELRC to compel the applicant to negotiate the CBA, but that the same should be stayed pending determination of termination/revocation of the Recognition Agreement. 9. The applicant contended that the intended appeal raises bona de points of law worth being argued, and that if stay is not granted, the parties will be compelled to negotiate the CBA; that once the CBA is entered into, it shall be irreversible, hence rendering the appeal nugatory. It was also contended that the execution of a CBA creates binding legal and nancial obligations and, as such, referral of the negotiations between the parties to the National Labour Board would be overtaken by events. 10. Opposing the application, the respondent led a replying adavit sworn by one Peter Ouko Onyango, its Secretary General on 16th February, 2026. To the respondent, the assertion by the applicant that it will suer irreversible harm if a CBA is negotiated and settled, is not factual for the reason that negotiation is not a nal outcome; that, even if a CBA is negotiated, any resultant CBA would be subjected to registration by the ELRC; and, even then, it shall still be a subject for determination in the intended appeal; and that, if the intended appeal succeeds, the negotiated CBA would not be registered. 11. The respondent further disposes that the applicant is not entitled to the discretionary relief of a stay order because; the impugned judgment was delivered on 30thOctober 2025; that the applicant then led a notice of appeal on the same day; and that despite threats to execute the judgment, the applicant waited for two and a half months after the matter was mentioned before the trial court on 9th December 2025 and after the Union issued a negotiation invitation letter dated 22nd January 2026 that he led the instant application. The respondent thus argues that there is nothing urgent that triggers entitlement to the orders sought. 12. It was deposed that the parties voluntarily entered into the Agreement though a court process for the purpose of a collective bargaining; that the applicant unilaterally terminated the Agreement through a letter dated 4th November 2024; that ling an application with the National Labour Board does not automatically suspend the operation of a valid subsisting Agreement; and that, in any event, unilateral termination is not permitted under the law; that further, the National Labour Board’s mandate is to determine the validity of the Agreement which is a separate and distinct issue from the obligation to bargain while the Agreement subsists; and that the determination of the National Labour Board would not be overtaken by events but that, instead, it would provide clarity. 13. It was stated that the balance of convenience tilts in dismissing the application; that the respondent stands to suer immense prejudice if a stay is granted as its members will be denied the opportunity to improve their terms and conditions of service through a CBA; that the applicant will be required to do what the law mandates it to do, that is, discuss the terms and conditions of employment with a union it voluntarily recognized, which is a statutory obligation; that hence, no harm will be occasioned to the applicant; and that, consequently, the application should be dismissed. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1895/eng@2026-09-25 3

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14. In its further adavit dated 3rd March 2026, the applicant reiterated its averments in the adavit dated 3rd February 2026. It further stated that it approached this Court on the instant application timeously and with clean hands; that negotiation is not merely a process, but it leads to a CBA which must be adopted by the court, thereby creating binding obligations that are dicult if not impossible to unwind; and that referral of the matter to the National Labour Board should have stayed negotiations as compelling them to continue prejudices the Board’s mandate and the intended appeal. 15. We heard this application on 17th June 2026. Learned counsel Ms. Anyango appeared for the applicant while learned counsel Mr. Mutongoi was present for the respondent. Both counsel relied on respective parties’ written submissions which they also highlighted in Court. Suce it to state, both the written and oral submissions basically regurgitated the averments in the adavits in support of, and in opposition to, the application for which reason we shall not duplicate them save for any salient points. The applicant’s submissions are dated 4th March 2026 while those 16. The applicant cited this Court’s decision in Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others (2013) KECA 378 (KLR) for the proposition that the intended appeal is arguable, and that an arguable appeal is not one that must necessarily succeed but one which raises bona de arguable points. To the applicant, it intends to appeal on the grounds, inter alia, whether a recognition agreement survives the loss of majority representation; whether the duty to negotiate a CBA under Section 57 of the LRA can be divorced from the majority requirement under Section 54; whether the learned Judge erred in law by compelling the bargaining while a statutory process under Section 54(5) of the LRA was pending before the National Labour Board; and whether compelling the CBA with a union representing less than 1% of the employees, undermines the principle of majoritarianism under collective labour relations in Kenya. 17. As to the nugatory aspect, counsel submitted that if stay is not granted, the applicant will be compelled to negotiate a CBA, which will be concluded, registered and binding upon all unionized employees which will aect the wage structure, allowances, benets and other employment terms upwards. Counsel urged that even if the intended appeal is to succeed, the applicant’s operations will have been altered irreversibly. Counsel further urged that the appeal is on the legitimacy of the respondent’s bargaining mandate and if the bargaining proceeds and the CBA is concluded, the appeal becomes an academic exercise. 18. On the respondent’s part, as regards whether the appeal will be rendered nugatory in the absence of a stay, it was submitted that the order by the trial court was to negotiate a CBA but not to pay any proposed incremental dues; that, even if any CBA is agreed upon in the interim, should the appeal succeed, the CBA can be voided; and that, as such, a stay serves no purpose to what is reversible. It was contended that nancial losses are quantiable and cannot be irreparable; and that no evidence has been adduced to suggest that the respondent is incapable of refunding any amounts which become due to its members under a new CBA; that the applicant approached the Court with unclean hands having attempted to terminate recognition agreement it voluntarily signed; and that no prejudice will be suered by the applicant for complying with lawful court orders. 19. We have considered the application, the responses thereto, the written and oral submissions of both counsel and the law. The singular issue that falls for determination is whether the applicant is deserving of the orders of stay pending appeal. 20. The applicant seeks to stay the proceedings before the superior court as well as the execution of the trial court judgment. The principles applicable in stay of proceedings are similar to those for granting stay of execution and injunctive orders under this Court’s Rule 5(2) (b). https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1895/eng@2026-09-25 4

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21. Rule 5(2) (b) provides that: Subject to sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may:- 22. (a) …. (b) in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 77, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just. An applicant who wishes to be granted stay orders should demonstrate that the intended appeal is arguable and secondly, that if stay is not granted, the appeal will be rendered nugatory. This Court in Attorney General vs. Okiya Omtatah Okoiti & Another (2019) KECA 774 (KLR) held that: “ The principle for our consideration in the exercise of an unfettered discretion under Rule 5 (2) (b) to grant an order for stay are now well settled. Firstly, an applicant has to satisfy that he/she has an arguable appeal. however, this is not to say that it must be an appeal that will necessarily succeed, but suce to state that it is an appeal that is not frivolous and/or idle. Secondly, an applicant has to demonstrate that unless an order of stay is granted the appeal or intended appeal should be rendered nugatory.’’ 23. Nonetheless, it would be remiss of us not to point out that reliefs under Rule 5(2)(b) are an exercise of the discretion of the Court, exercisable by the Court upon consideration of the facts and circumstances of each case. In this regard, the Court in David Morton Silverstein vs. Atsango Chesoni [2002] eKLR stated that: “The Court is not laying down any principle that no order for stay of proceedings will ever be made; that would be contrary to the provisions of rule 5 (2) (b) 24. of the Court's own rules. But as the court pointed out in the case we have already cited, each case must depend on its own facts ….” In the same vein, the High Court of Kenya at Meru (Gikonyo, J.) in Kenya Wildlife Service vs. James Mutembei [2019] eKLR persuasively held that: “ Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action, which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent” 25. We are also mindful as was observed in Halsbury’s Laws of England, 4th Edition. Vol. 37 pp.330 and 332 that: “ The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1895/eng@2026-09-25 5

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This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases. It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plainti might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case”. 26. As to arguability of the appeal or intended appeal, the threshold to determine what is arguable is low. Even a solitary ground is enough to constitute a bench of this Court to hear such an appeal provided it is not frivolous. This Court in R.F.S. vs J.D.S (2013) KECA 366 (KLR) observed: “ Now an appeal is said to be arguable when it contains grounds, points or issues that can genuinely be asserted, on which there can be divergent legal or factual positions of some merit worthy of judicial investigation and determination. To succeed, it is enough that even a single, solitary ground of such description exists and the same need not be one that must necessarily succeed an appeal.” 27. We have perused the draft memorandum of appeal annexed to the supporting adavit. It discloses that the applicant intends to challenge, among others, the trial Judge’s ndings on the interpretation and application of the provisions of Sections 54 and 57 of the LRA, which it argued that the good judge disregarded the statutory process and binding precedents. The applicant also complains that the learned Judge compelled the applicant to enter into a CBA under duress without legitimate basis, hence occasioned a miscarriage of justice. We nd that these are arguable grounds worth consideration before a full bench of this Court. Thus, the rst limb of whether the appeal is arguable succeeds. 28. With regard to the second limb, the position in law is whether the appeal or intended appeal will be rendered nugatory if stay is not granted and if what is sought to be stayed, if allowed to happen, is reversible or if not reversible, damages will adequately compensate the aggrieved party. See: Reliance Bank Ltd vs. Norlake Investments Ltd (2002) 1EA 227. 29. The applicant’s argument is that failure to issue stay orders will result in a CBA being implemented whereas it has challenged the same before the National Labour Board. The applicant is apprehensive that the negotiated CBA will birth nancial obligations which will bind it yet the membership of the respondent’ unionisable members is below the legal threshold. The applicant is further apprehensive that the attempt to reverse what will have taken place will result in industrial unrest and multiplicity of litigation by various interest groups. 30. The fact is that, by their nature, CBAs run for a specic period of time. What this means is that, if the negotiated and agreed upon CBA is registered with the court, in the event that the intended appeal succeeds, it shall automatically become superuous. Furthermore, as argued by learned counsel Mr. Mutongoi, the nancial implication, which the applicant is apprehensive about, has not satisfactorily been demonstrated. Further, the applicant has not shown that the respondent will not be able to refund any amounts that will have been paid to the Union in the event that the intended appeal succeeds. Simply said, if the appeal is determined in the applicant’s favour, any negotiated CBA will be rendered void and any expenses incurred can be adequately compensated by way of damages. Hence, nothing points to the fact that the intended appeal will be rendered nugatory in the absence of a stay. We nd no reason upon which we should order either a stay of the trial court’s proceedings or of the trial court’s judgment. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1895/eng@2026-09-25 6

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31. And, since both limbs under Rule 5(2)(b) must be satised conjunctively, it follows that, having failed to satisfy the second limb thereof, the Motion dated 3rd February, 2026 must fail. Accordingly, the same is hereby dismissed with costs to abide the outcome of the appeal. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2026. G. W. NGENYE-MACHARIA JUDGE OF APPEAL .................................... S. O. OKONG’O JUDGE OF APPEAL .................................... (DR). J.O. OKELLO JUDGE OF APPEAL I certify that this is the true copy of the original signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1895/eng@2026-09-25 7

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