Bank of India v Banking Insurance & Finance Union (Kenya) [2014] [2014] KECA 120 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause an employment case against Bank of India, ruling that appealing parties must wait for actual court orders before seeking a stay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court had jurisdiction over the application notwithstanding the alleged deemed withdrawal of the notice of appeal under rule 83
The Court found it had jurisdiction; since it could not ascertain with certainty whether the request for proceedings had been served, it would resolve the uncertainty in the applicant's favour under Article 159 and sections 3A and 3B of the Appellate Jurisdiction Act, and the respondent had not applied to have the notice deemed withdrawn.
Rule 82 excludes from the computation of the sixty-day period the time certified as requisite for preparation of proceedings, provided the Registrar has been requested and the respondent served. The record did not show on its face that the request was copied to the respondent's counsel, leaving uncertainty. Applying the overriding objective and the respondent's failure to seek a withdrawal order, the Court declined to deem the notice withdrawn and proceeded to determine the application.
Whether the intended appeal was arguable
Yes. The appeal raised a substantial question on the applicable limitation regime in employment disputes - whether time is computed under the Trade Disputes Act and Employment Act or the Limitation of Actions Act read with the Interpretation and General Provisions Act - a question counsel for the respondent conceded.
Counsel for both sides agreed the appeal was arguable. The Court held that the central issue - when time begins to run for filing an employment dispute where a mandatory pre-trial reporting procedure applies - was a genuine question for determination, and it had no hesitation in finding the appeal arguable.
Whether the intended appeal would be rendered nugatory absent a stay of proceedings
No. The Industrial Court proceedings were incomplete, the apprehended order of reinstatement and payment of arrears had not yet arisen, the Cause could be dismissed in the applicant's favour, and a stay of execution could be sought at the appropriate time.
The applicant's apprehension was speculative: the Industrial Court had not yet heard the main Cause and might even find for the applicant. Mere inconvenience and expense of potential reinstatement and salary arrears did not establish irredeemable harm. The application was premature, and the applicant remained free to seek a stay of execution should adverse orders issue.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy two requirements: that the intended appeal is arguable (not frivolous) and that, unless a stay or injunction is granted, the appeal or intended appeal, if successful, would be rendered nugatory.
- Before considering the two rule 5(2)(b) criteria, the Court must first determine whether the application is properly before it.
- Where service of a request for proceedings cannot be ascertained with certainty, the Court may, under Article 159 of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act, resolve the uncertainty in favour of the applicant rather than deem the notice of appeal withdrawn, particularly where the respondent has not applied for such an order.
Court orders
#- 1.The motion dated 10th April 2014 is dismissed
- 2.Costs of the application to be costs in the appeal
- On appeal from
- Industrial Court of Kenya
- H.C.C.C. No. 1290 of 2013 (Cause No. 1201 of 2012)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, with the court invoking Article 159 of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bank of India v Banking Insurance & Finance Union (Kenya) [2014] [2014] KECA 120 (KLR)", Case Analysis (2014). Civil Application No. NAI 84 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/120/eng@2014-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.