Cabinet Secretary Ministry of Labour National Social Security and Services v Central Organisation of Trade Unions (K) & 2 others (Civil Application 252 of 2014) [2015] KECA 123 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed the Labour Cabinet Secretary's bid to halt a case over Atwoli's NSSF board nomination, confirming both stay-test requirements must be met.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has demonstrated an arguable (not frivolous) intended appeal
- 2.Whether the intended appeal would be rendered nugatory if the stay of proceedings before the Employment and Labour Relations Court is not granted
- 3.Whether the revocation/de-gazettement of a nominee to the NSSF Board of Trustees falls within the jurisdiction of the Employment and Labour Relations Court (as the arguable ground)
Key legal issues
#Twin principles for stay of proceedings under rule 5(2)(b)
Both limbs - arguability and nugatory effect - must be satisfied conjunctively before a stay can issue.
The Court restated the settled principles from Ishmael Kagunyi Thande v Housing Finance of Kenya Ltd: jurisdiction under rule 5(2)(b) is original and discretionary, guided by the arguable-appeal and nugatory-appeal principles. Because the limbs are conjunctive and not disjunctive, failure on the nugatory limb disposes of the application regardless of arguability.
Arguability of the jurisdictional question
Whether revocation/de-gazettement of a nominee to the NSSF Board of Trustees falls within the Employment and Labour Relations Court's jurisdiction is an arguable point of law, sufficient to establish the first limb.
The appeal turned on the scope of the Labour Court's jurisdiction under Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Act. Because the question is not expressly provided for in that Act, it is arguable rather than frivolous, and one arguable point suffices for the first limb.
Nugatory aspect and mootness
The applicant failed the second limb: the application had been overtaken by events and the jurisdictional issue would not dissipate if proceedings were not stayed, since it could be determined in the appeal itself.
The 2nd respondent had been reappointed to the Board, mooting much of the dispute. Further, the jurisdictional question would survive litigation before the Labour Court and remain available for determination on appeal, so the intended appeal would not be rendered nugatory absent a stay.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin conjunctive principles of arguability and nugatory effect; establishing only one limb is insufficient.
- An appeal is arguable if it raises even a single bona fide point; it need not be an appeal that will necessarily succeed.
Court orders
#- 1.The applicant's application for stay of proceedings is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Nairobi Industrial Cause No. 1213 of 2014
- Jurisdiction invoked
- Rule 5(2)(b), 41 and 47 of the Court of Appeal Rules (stay of proceedings pending intended appeal); underlying jurisdiction of the Employment and Labour Relations Court under Article 162(2) of the Constitution and section 12(1)(2) of the Employment and Labour Relations Act
Relief refused
#Stay of all further proceedings in Nairobi Industrial Cause No. 1213 of 2014 pending the hearing and determination of the intended appeal
The application was overtaken by events (the 2nd respondent was reappointed to the Board) and the applicant failed to satisfy the second (nugatory) limb of the rule 5(2)(b) test
Costs
The application is dismissed with costs in the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For an applicant to succeed he must not only show that his appeal or intended appeal is arguable, but also that unless the court grants him an injunction or stay as the case may be, the success of that appeal will be rendered nugatory.
establishing one of the limbs is not suficient as the twin limbs are conjunctive and not disjunctive
Whether the revocation of gazzettement of a person to a Board of Trustees falls within the jurisdiction of the Employment and Labour Relations Court is arguable and not frivolous, especially because it is not expressly provided for in the Employment and Labour Relations Act.
The application therefore fails. The same is hereby dismissed with costs in the appeal.
Issues in the judgment
#The judgment refers to the applicant as both 'applicant' and 'appellant' in the same brief proceedings, though no substantive appeal was yet on record
Paragraph 13 ends mid-sentence introducing the Kagunyi case, which is then named in paragraph 14
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cabinet Secretary Ministry of Labour National Social Security and Services v Central Organisation of Trade Unions (K) & 2 others (Civil Application 252 of 2014) [2015] KECA 123 (KLR)", Case Analysis (2015). Civil Application No. Nai. 1213 of 2014 (as cited in the ruling; application under Rule 5(2)(b) of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/123/eng@2015-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.