Kenya Export Floriculture, Horticulture & Allied Workers Union (KEPHAU) v Kenya Plantation & Agricultural Workers Union & another [2015] KECA 913 (KLR)
The bottom line
#The Court of Appeal refused to pause orders against Kepha Union because a winning argument alone is not enough—you must also prove the harm cannot be fixed later.
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 intended appeal is arguable under rule 5(2)(b)
- 2.Whether the intended appeal would be rendered nugatory if stay is not granted
Key legal issues
#Whether the intended appeal is arguable
The Court found one bona fide arguable point: whether stay orders could stand where the applicant had already been registered before their issuance and before any cancellation of that registration.
The Court examined the draft memorandum of appeal and identified a genuine issue: the applicant had been registered on 17th February 2014, yet stay orders were issued in respect of a registration already effected and never cancelled or reversed. Under the settled rule that a single bona fide arguable point suffices, the first limb of the rule 5(2)(b) test was satisfied.
Whether the intended appeal would be rendered nugatory if stay is not granted
The second limb failed. The Court held the registration remained intact, any arrears of dues could be recovered later, and members could be represented by the first respondent in the interim.
The Court reasoned that the registration was not cancelled or reversed and only the applicant's activities (recruitment, dues collection) were curtailed temporarily; arrears could be recovered on determination of the appeal. Members already on board could be represented by the first respondent, from which the applicant was a splinter, or seek alternative representation, so any harm was reversible and compensable.
Legal principles established
#- Relief under rule 5(2)(b) requires the applicant to demonstrate both that the appeal or intended appeal is arguable and that it will be rendered nugatory if stay is not granted; both limbs must co-exist.
- An arguable appeal is not one that must succeed, but one raising a single bona fide issue worth of consideration; one arguable point suffices.
- An appeal is rendered nugatory where the effect of what is sought to be stayed is irreversible or not reasonably compensable by damages.
- The jurisdiction under rule 5(2)(b) arises only where the applicant has lodged a notice of appeal, and is original, independent and discretionary.
Court orders
#- 1.The applicant's application dated 17th July 2014 and lodged on 12th August 2014 be and is hereby dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Industrial Court of Kenya at Nairobi
- Industrial Court Appeal No. 7 of 2011
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of the Industrial Court orders of 4th July 2014 pending hearing of the application and of the main appeal
The applicant satisfied only the arguability limb and failed to demonstrate that the appeal would be rendered nugatory; both limbs must be met
Costs
The application be and is hereby dismissed with costs (costs to the respondents).
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.
The applicant's application dated 17th day of July, 2014 and lodged herein on 12 th August, 2014 be and is hereby dismissed with costs.
Lastly, both limbs must be demonstrated to exist before one can obtain relief under rule 5(2) (b).
By arguable, is not meant an appeal or intended appeal which must succeed but one which raises a bonafide issue worth of consideration by the Court
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
Issues in the judgment
#The replying affidavit of Francis C. Atwoli is stated as deposed on 12th August, 2010, which pre-dates the application of 17th July 2014; likely a typographical error for 2014.
The judgment refers to stay orders granted in 'CA 7/2014' whereas the Industrial Court appeal number given earlier is 7 of 2011.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Export Floriculture, Horticulture & Allied Workers Union (KEPHAU) v Kenya Plantation & Agricultural Workers Union & another [2015] KECA 913 (KLR)", Case Analysis (2015). Civil Application No. NAI 187 of 2014 (UR.146/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/913/eng@2015-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.