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Court of AppealDismissedCivil Application No. NAI. 72 of 2001 (UR 489/2011)

Kenya Tea Growers Association & another v Kenya Plantation and Agricultural Workers Union [2012] KECA 231 (KLR)

Court of Appeal
3 February 2012
SBS.E.O. BosireJOJ.W. Onyango OtienoPNP.N. Nyamu
2,454 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to halt reinstatement orders because the workers were already back at work, leaving nothing left to stay.

What this practically means

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Executive summary

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The applicants, Kenya Tea Growers Association and Unilever Tea Kenya Ltd, moved the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of orders of the Industrial Court (Madzayo J) arising from a labour dispute triggered by the employers' introduction of tea plucking machines and a subsequent strike by the respondent union's members. The Industrial Court had issued an interlocutory injunction against lock-outs and ordered employees not allowed back to work to resume duty within seven days without loss of benefits. The applicants argued the orders protected employees from their own unlawful strike, exposed employers to industrial unrest, and that concurrent High Court and Industrial Court proceedings risked conflicting decisions. The respondent countered that the strike had commenced before the High Court order was served, that the right to strike is constitutionally protected, and that the impugned orders had been implemented and were overtaken by events. The Court first addressed its own jurisdiction, holding that although enabling legislation for appeals from the Industrial Court was not yet in place, the Constitution permitted such appeals and the procedural gap was a technicality under Article 159 which should not preclude relief in a deserving case. On the merits, the Court found the employees had been working for over eight months and the orders had been implemented, so there was nothing to stay. The applicants had not sought leave to amend to pursue the mandatory injunction they really wanted. The application was dismissed with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court could entertain an application under rule 5(2)(b) in respect of an intended appeal from the Industrial Court given the absence of enabling procedural legislation
  2. 2.Whether the applicants satisfied the principles for grant of stay under rule 5(2)(b), namely an arguable appeal and the nugatory test
  3. 3.Whether the application had been overtaken by events given the implementation of the reinstatement order

Key legal issues

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01

Jurisdiction to entertain rule 5(2)(b) applications against Industrial Court decisions

Holding

The Court held it has general jurisdiction to hear appeals from the Industrial Court notwithstanding that enabling legislation had not yet been enacted, and proceeded to the merits rather than striking out the application for procedural defects

Reasoning

The court noted the 2010 Constitution permits appeals from the Industrial Court, but the Labour Institution Act and the Appellate Jurisdiction Act appeared to limit that jurisdiction, and procedure for approaching the Court was unclear. Relying on Article 159, it treated the procedural gap as a technicality that should not block relief in a deserving case.

p. 4
02

Effect of the passage of time and implementation of the orders sought to be stayed

Holding

Because the employees had returned to work and the impugned order had been implemented for over eight months, there was nothing to stay; the motion was dismissed without considering the arguability or nugatory-ness of the intended appeal

Reasoning

The stay order sought had been fully implemented, and what the applicants really wanted was a mandatory injunction compelling the employees to cease working. That was not the relief in the motion, and absent a formal amendment the Court could not grant it. With nothing to stay, the two rule 5(2)(b) principles did not arise for consideration.

p. 4

Legal principles established

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  • The Court of Appeal has general jurisdiction to hear appeals from the Industrial Court under the 2010 Constitution, and the absence of procedural enablement is a technicality which should not preclude the grant of orders in a deserving case
  • To succeed on an application under rule 5(2)(b) an applicant must show an arguable appeal, meaning at least one issue fit for the Court's determination, and that unless stay is granted the appeal's success would be rendered nugatory
  • A court will not treat an application as amended by a mere statement from the bar where no formal application for amendment has been made

Court orders

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  1. 1.The application dated 25th March 2011 and filed in court on the same day is dismissed, with no order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SB
majority
JO
majority
PN
majority
On appeal from
Industrial Court
Industrial Cause No. 1281 of 2010
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; the Constitution (2010) allowing appeals from the Industrial Court; Appellate Jurisdiction Act, Cap 9, section 3(1)

Relief refused

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Stay of execution of the Industrial Court orders of reinstatement and interlocutory injunction pending the intended appeal

The orders sought to be stayed had been implemented and the application had been overtaken by events; nothing remained to be stayed and the court could not treat the motion as amended to seek a mandatory injunction

p. 4

Costs

Dismissed with no order as to costs

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.

In the result, the application dated 25th March 2011 and filed in court on the same day is dismissed, but with no order as to costs.
p. 4Disposition - dismissal of the stay application
absence of procedural enablement is a technicality which under Article 159 of the Constitution 2010, should not preclude us from granting orders in a deserving case
p. 4Jurisdiction and Article 159 over procedural gaps in appeals from the Industrial Court
Clearly the applicants motion had as at the date it came before us for hearing, been overtaken by events. There is nothing to stay
p. 4Stay applications overtaken by events
First, for an applicant to succeed in such application he must show that his appeal or intended appeal is arguable, or put another way that it is not a frivolous one.
p. 3Rule 5(2)(b) principles - arguability

Issues in the judgment

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minor

Case number heading reads 'Civil Application No. NAI. 72 OF 2001 (UR 489/2011)', an apparent internal inconsistency between the year 2001 and UR number 2011 for an application filed in 2011

minor

The ruling is described as arising from the ruling of Madzayo J dated 22nd March 2011, but the substantive orders the applicants sought to stay are quoted as orders made on 1st November 2010, and the notice of appeal dated 11th November 2010 refers to the decision of 1st November 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Tea Growers Association & another v Kenya Plantation and Agricultural Workers Union [2012] KECA 231 (KLR)", Case Analysis (2012). Civil Application No. NAI. 72 of 2001 (UR 489/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/231/eng@2012-02-03

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