Wells Fargo Limited v Cyrus Kioko & 48 others [2015] KECA 361 (KLR)
The bottom line
#Kenya's Court of Appeal let a security company hire casual workers during an appeal, but ordered it to keep paying dismissed staff half salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal was arguable, particularly on whether the trial court could convert summary dismissal into suspension and order reinstatement at the interlocutory stage
The court examined the draft memorandum of appeal and identified arguable points: whether the trial court had jurisdiction to grant interlocutory reinstatement before a hearing on merit, whether it erred in converting summary dismissal into suspension, and whether it erred in barring recruitment of replacements. An arguable ground need not succeed; it need only not be frivolous.
Whether the appeal would be rendered nugatory if stay is refused
Stay was justified: the prohibition on recruitment would cripple the applicant's business and render the appeal nugatory, while the respondents suffered no comparable prejudice as they received half pay for no work
The court weighed the respective prejudice of the parties. The respondents were already on half pay for no work done, so they would suffer little prejudice if the applicant temporarily filled positions. By contrast, the order barring recruitment left the applicant with one employee in a department ordinarily served by fifty, disrupting its commercial operations. Undue hardship to the applicant warranted stay.
Whether the 'persons of straw' submission established nugatory-ness
The submission failed because no affidavit of means proved the respondents' impecuniosity
The applicant alleged that the respondents were persons of straw and that monies paid could not be recovered. The court held that this was a bare allegation unsupported by an affidavit of means and therefore insufficient to show the appeal would be rendered nugatory on that ground.
Reinstatement as a statutory remedy subject to reasonableness and practicability
Since the Employment Act, Industrial Relations Act and Industrial Court Act of 2007, damages and reinstatement are statutory remedies, and Section 49(4) of the Employment Act requires reasonableness and practicability before reinstatement
The court noted that reinstatement is not an automatic right of an employee but discretionary, to be considered on the merits of each case, and that courts should not force a personal employment relationship to continue where it would engender unhealthy friction. The reasonableness and practicability of the trial court's interim order barring replacement of the respondents was an arguable point for the intended appeal.
Legal principles established
#- A single non-frivolous ground of appeal suffices to satisfy the arguability threshold under rule 5(2)(b)
- At an interlocutory stage a court should not make orders that cripple the financial and commercial interests of a party; interim orders preserve the substratum of the suit
- Bare allegations of a respondent's impecuniosity, unsupported by an affidavit of means, cannot establish that an appeal will be rendered nugatory
- In dealing with rule 5(2)(b) the Court of Appeal exercises original and discretionary jurisdiction, which is not an appeal from the judge's discretion
Court orders
#- 1.The ruling and consequential orders made by the trial court on 3rd February 2015 are set aside in entirety
- 2.The applicant shall be at liberty to engage casual workers pending the hearing and determination of the intended appeal
- 3.The applicant shall continue to pay the respondents one half of their monthly salary until the hearing and determination of the intended appeal
- 4.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- Employment & Labour Relations Court
- H.C. Cause No. 26 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules - application for stay of execution pending an intended appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (8)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Job Kenyanya Okemwa v Public Service Commission (Cause 199 of 2015) [2024] KEELRC 886 (KLR)[2024] KEELRC 886 (KLR)18 Apr 2024
- Rose Sang v Siginon Group Limited [2020] KEELRC 990 (KLR)[2020] KEELRC 990 (KLR)29 May 2020
- Peter Ogecha v Kenyatta University [2019] KEELRC 773 (KLR)[2019] KEELRC 773 (KLR)27 Sept 2019
- Patrick Koome Mutiga & 22 others v Meru County Government & another [2018] KEELRC 712 (KLR)[2018] KEELRC 712 (KLR)4 Oct 2018
- Inter-Public Universities’ Councils Consultative Forum of Federation of Kenya Employers v Universities’ Academic Staff Union & 5 others [2018] KEELRC 2162 (KLR)[2018] KEELRC 2162 (KLR)6 Apr 2018
- Elgon Kenya Limited v. Peter Musyoka Kamuya[2017] KEHC 6455 (KLR)30 Mar 2017
- Jones Okero Momanyi v Public Service Commission [2016] KEELRC 458 (KLR)[2016] KEELRC 458 (KLR)8 Sept 2016
- Dickson Ouma Opiyo v Lake Victoria North Water Services Board & another [2016] KEELRC 1441 (KLR)[2016] KEELRC 1441 (KLR)2 Mar 2016
Cite this brief
#Cite this brief
Caselaw, "Wells Fargo Limited v Cyrus Kioko & 48 others [2015] KECA 361 (KLR)", Case Analysis (2015). Civil Application No. NAI. 42 of 2015 (UR) 38 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/361/eng@2015-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.