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Court of AppealDismissedCivil Application No. 287 of 2011· [2013] KECA 377 (KLR)

Nairobi Club Registered Trustees v Industrial Court & 2 others [2013] KECA 377 (KLR)

Court of Appeal
15 March 2013
RNR. N. NambuyeGKG. B. M. KariukiJOJ. O. Odek
2,013 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal refused to stop an employment award against Nairobi Club because the Club never filed a Notice of Appeal against that specific award.

What this practically means

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Executive summary

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The applicant, Nairobi Club Registered Trustees, moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of an award of the Industrial Court delivered on 24 September 2009 in Cause No. 77(N) of 2009, in which 85 summarily dismissed employees of the Club were ordered reinstated with back wages and benefits within thirty days. The Club's judicial review application seeking certiorari to quash that award was dismissed by Warsame, J on 24 November 2011, and a Notice of Appeal was lodged against that decision. In the interim the Club reinstated 50 of the 85 employees. The Court of Appeal dismissed the application. It held that the Notice of Appeal on record was lodged against the Superior Court decision, not against the Industrial Court award, and that it is the filing of a Notice of Appeal which confers jurisdiction on the Court to grant a stay, an injunction, or a stay of proceedings. In the absence of any appeal against the award, the application for stay in respect of it could not be sustained. As regards the decision of Warsame, J, the Court observed that there was nothing to stay, since the Superior Court had merely dismissed judicial review proceedings. Although the intended appeal might be arguable, the applicant failed to demonstrate that it would be rendered nugatory absent a stay. The Notice of Motion dated 19 December 2011 was accordingly dismissed with costs to the 1st and 3rd Respondents. The judgment reaffirms that a stay under Rule 5(2)(b) presupposes a lodged notice of appeal against the very decision sought to be stayed.

Key legal issues

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01

Whether the Court has jurisdiction to stay execution of the Industrial Court award absent a Notice of Appeal against it

Holding

The Court lacks jurisdiction to stay a decision against which no Notice of Appeal has been lodged; the filing of the Notice of Appeal is the foundation of the Court's jurisdiction to grant stay under Rule 5(2)(b).

Reasoning

The Applicant's Notice of Appeal was lodged only against the decision of Warsame, J dismissing the judicial review application. No Notice of Appeal was filed against the Industrial Court award of 24 September 2009. Rule 5(2)(b) permits a stay only where notice of appeal has been lodged in accordance with rule 74, and the Court's settled jurisprudence, as in John N. Libuyi v Board of Governors, St. John College, confirms that it is the Notice of Appeal that confers jurisdiction to grant stay. Accordingly the application for stay of the award cannot be sustained.

p. 3
02

Whether the requirements of arguability and nugatory impact were satisfied to warrant a stay pending the intended appeal against Warsame, J's decision

Holding

Even assuming the intended appeal against the Superior Court decision is arguable, the Applicant failed to demonstrate that the appeal would be rendered nugatory if stay were not granted.

Reasoning

The Superior Court merely dismissed the judicial review application seeking certiorari to quash the Industrial Court award. That award, the true object of the stay, had not been challenged on appeal, so a stay in respect of the judicial review decision is incoherent and there is nothing to stay. The Court found no material demonstrating nugatory effect as regards the intended appeal, and declined the discretionary relief on that basis as well.

p. 4

Legal principles established

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  • It is the filing of a Notice of Appeal that confers on the Court of Appeal jurisdiction to grant a stay of execution, an injunction, or a stay of further proceedings; without such a Notice in respect of the specific decision, a stay application is incompetent.

Court orders

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  1. 1.The Notice of Motion dated 19th December 2011 is dismissed with costs to the 1st and 3rd Respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 74

Cases cited (1)

  • John N. Libuyi v The Board of Governors, St. John College
    CA Civil Application No.138 of 2009 (UR 92/2009)
On appeal from
High Court of Kenya at Nairobi
High Court Misc. Application No. 605 of 2009
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Nairobi Club Registered Trustees v Industrial Court & 2 others [2013] KECA 377 (KLR)", Case Analysis (2013). Civil Application No. 287 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/377/eng@2013-03-15

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