Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application No. 18 of 2015· [2015] KECA 666 (KLR)

Engen (K) Limited v Kenya Petroleum Workers Union & another [2015] KECA 666 (KLR)

Court of Appeal
29 May 2015
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
1,006 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal paused a Kshs 1 million employment award against Engen, but only after the company agreed to securely deposit the money while its appeal is heard.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Malindi (Makhandia, Ouko and M'inoti, JJ.A.) on Engen (K) Limited's notice of motion dated 12th May 2015 seeking stay of execution of the judgment and decree of Makau, J in the Employment and Labour Relations Court at Mombasa (ELR. CC. No.94 of 2014). The High Court below had found that Engen unfairly terminated the services of thirteen grievants and awarded one month's salary in lieu of notice plus six months' gross salary, totalling approximately Kshs. 1,027,177, to be shared equally among the grievants, together with costs. The applicant sought a stay under Rule 5(2)(b) pending an intended appeal, identifying four arguable grounds: the proper application of the statutory definition of 'redundancy'; the import of section 74(a) and (b) of the Labour Relations Act on the court's jurisdiction; the award of salary in lieu of notice despite a finding that a termination notice had been issued; and the entry of judgment against the applicant alone when relief was sought against both it and Sarman Energy Limited. The court applied the twin tests for Rule 5(2)(b) relief - arguability and nugatory aspect. It found the grounds arguable and, since the grievants were admitted on oath to be unemployed and without other income, held the appeal would be rendered nugatory if the decretal sum was paid out and the appeal later succeeded. The court allowed the stay, conditional on the applicant depositing the decretal sum in an interest-earning account in the joint names of the 1st respondent and the applicant's advocates within fourteen days, failing which the stay would stand vacated; the appeal was to be filed within thirty days. Costs of the application were made costs in the intended appeal. The 2nd respondent, though served, was not represented. Sarman Energy Limited, though served with the application and hearing notice, was not represented when the application was argued.

Key legal issues

#
01

Arguability of the intended appeal

Holding

The four grounds identified - on the definition of redundancy, jurisdiction under the Labour Relations Act, award of salary in lieu of notice, and liability against the applicant alone - raised arguable points.

Reasoning

The court reviewed the four grounds framed by counsel and accepted that they raise arguable points fit for full consideration in the intended appeal, satisfying the first limb of the Rule 5(2)(b) test.

p. 2
02

Nugatory aspect - whether the appeal would be rendered nugatory without a stay

Holding

Given that the thirteen grievants are unemployed and impecunious, the applicant's apprehension that it could not recover the decretal sum if paid out and the appeal later succeeded was justified; the appeal would be rendered nugatory.

Reasoning

The 1st respondent's representative confirmed on oath that the grievants are unemployed and lack economic muscle. Paying out the decretal sum of over Kshs. 1 million to impecunious, unemployed grievants would leave the applicant without redress should the appeal succeed, satisfying the second limb of the test.

p. 2

Legal principles established

#
  • The purpose of the Court's power under Rule 5(2)(b) is to preserve the subject matter and prevent an appeal from being rendered nugatory; an applicant must satisfy the twin tests of arguability and nugatory aspect.

Court orders

#
  1. 1.Notice of motion dated 12th May 2015 allowed in terms of prayer 3 - temporary stay of execution of the decree issued on 23rd March 2015 pending the filing, hearing and determination of the intended appeal
  2. 2.Stay granted on condition that the applicant shall, within fourteen (14) days, deposit the decretal sum in an interest-earning account in the joint names of the 1st respondent and the applicant's advocates, failing which the stay shall stand vacated without further orders
  3. 3.The appeal shall be filed within thirty (30) days from the date of the ruling
  4. 4.Costs of the application to be in the intended appeal

Authorities

#

Legislation

  • Employment Actsection 2
  • Labour Relations Act, 2007section 74(a) and (b)
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Printing Industries Limited & Another v Bank of Baroda (K) Ltd
    Civil Application No.40/13
  • Kenya National Union of Teachers v George Wesonga
    Civil Application No.92 of 2014
On appeal from
Employment and Labour Relations Court at Mombasa
ELR. CC. No.94 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Engen (K) Limited v Kenya Petroleum Workers Union & another [2015] KECA 666 (KLR)", Case Analysis (2015). Civil Application No. 18 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/666/eng@2015-05-29

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