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Court of AppealAllowedCivil Application No. NAI. 112 of 2011 (UR. 73/2011)· [2011] KECA 191 (KLR)

Kenya Education Staff Institute v Kenya Union of Post Primary Teachers & 2 others [2011] KECA 191 (KLR)

Court of Appeal of Kenya
15 July 2011
EGE. M. GithinjiJOJ. W. Onyango OtienoAVAlnashir Visram
1,354 words in judgment
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The bottom line

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Kenya's Court of Appeal paused enforcement of an employment award against KESI, because forcing big payments now could make the appeal meaningless.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal at Nairobi under Rule 5(2)(b) of the Court's Rules, section 27 of the Labour Institutions Act, and sections 162(2)(a) and 159(2)(b) of the Constitution, by the Kenya Education Staff Institute (KESI) seeking a stay of execution of an Award of the Industrial Court pending an intended appeal. The Industrial Court had held that two graduate teachers previously paid by the Teachers Service Commission became employees of KESI following its take-over of Highridge Teachers Training College, and ordered their reinstatement, issuance of appointment letters, payment of salary arrears and benefits, twelve months' gross salary as compensation for unfair termination, and ordered parties to bear their own costs. Counsel for KESI argued the appeal was arguable because the teachers were hired and paid by TSC and merely on secondment, and that enforcement would create an employer/employee relationship and force large irrecoverable payments; counsel for the claimants opposed, pointing to the claimants' loss of income for nearly three years. The court, hearing the application as a full bench of three Judges of Appeal in a single judgment, assumed the appeal was arguable but not frivolous, and held that enforcement of the Award would render the appeal nugatory because of the employer/employee relationship it would create and the substantial payments it would entail, which might not be recoverable. The court allowed the application as prayed, granting a stay of execution of the Award, with costs reserved to the intended appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The court assumed, without making definitive findings, that the intended appeal was arguable and not frivolous.

Reasoning

The applicant argued that the Industrial Court erred in holding the claimants were its employees when they were hired, paid and controlled by the TSC, and that the reinstatement and damages orders contravened the Labour Relations Act. The court declined to make definitive statements on the merits at this interlocutory stage, being prepared only to assume arguability, which is the conventional first limb of the Rule 5(2)(b) test.

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02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

The court found the appeal would be rendered nugatory because enforcement of the Award would create an employer/employee relationship and require fairly huge payments that might not be recoverable.

Reasoning

The Award required immediate reinstatement, issuance of appointment letters, payment of salary arrears, accrued benefits, and twelve months' gross salary compensation for unfair termination. Such enforcement would create a substantive employer/employee relationship and impose substantial payments; if the applicant ultimately succeeded on appeal, those payments might not be recoverable, rendering the appeal nugatory.

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Legal principles established

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  • On a Rule 5(2)(b) application for stay of execution pending appeal, the applicant must satisfy the court that the appeal is arguable and that it would be rendered nugatory if stay is not granted; an award creating an employer/employee relationship and requiring substantial payments that may be irrecoverable satisfies the nugatory test.

Court orders

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  1. 1.Stay of execution of the Award of the Industrial Court dated 1st April 2011 granted as prayed, pending the lodgment, hearing and determination of the intended appeal
  2. 2.Costs shall be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Labour Institutions Act (No. 12 of 2007)section 27
  • Constitution of Kenyasection 162(2)(a)
  • Constitution of Kenyasection 159(2)(b)
  • Education Act (Cap 211)
  • Labour Relations Act

Cases cited (1)

  • Kenyatta University v. Julius Murungi Murianki
    CA No. 329 of 2000
On appeal from
Industrial Court at Nairobi
Industrial Court Cause No. 224(N) of 2008
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; section 27 of the Labour Institutions Act (No. 12 of 2007); sections 162(2)(a) and 159(2)(b) of the Constitution of Kenya

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 Education Staff Institute v Kenya Union of Post Primary Teachers & 2 others [2011] KECA 191 (KLR)", Case Analysis (2011). Civil Application No. NAI. 112 of 2011 (UR. 73/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/191/eng@2011-07-15

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