Kaskazi Beach Hotel v Kenya Union of Domestic, Hotels, Educational Institutions & Hospital [2016] KECA 539 (KLR)
The bottom line
#The Court of Appeal refused to halt payment of Kshs.9.4 million in employee salary arrears, holding that unpaid wages outweigh an employer's appeal convenience.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal challenging the grant of a mandatory injunction at an interlocutory stage is arguable
The intended appeal is arguable because the central question will be whether the trial judge judicially exercised his discretion in granting a mandatory injunction compelling payment of salary arrears at an interlocutory stage
The court accepted that a mandatory injunction can issue at an interlocutory stage, citing Locabail International Finance Ltd v Agro Export. However, whether in the circumstances the payment of Kshs.9,448,000 in salary arrears could properly be compelled at an interlocutory stage, i.e. whether the discretion was judicially exercised, was a live, non-frivolous question fit for full argument. Even a single arguable ground suffices.
Whether the intended appeal would be rendered nugatory if stay is not granted
The intended appeal would not be rendered nugatory because the union undertook to ensure restitution if the appeal succeeds, and it would be unconscionable to stay orders concerning employees' salary and livelihood
The nugatory test was not satisfied. The union stated that if the appeal succeeded after payment, it would ensure restitution to the applicant. Further, the claim concerned salary, the livelihood of the claimants, making it unconscionable on the facts to stay the orders of the court below or the proceedings. The application therefore failed and was dismissed with costs in the intended appeal.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it will be rendered nugatory if the application fails
- An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous, and even a single arguable ground suffices
Court orders
#- 1.Dismissal of the applicant's motion dated 3rd November 2015 seeking stay of execution and stay of proceedings
- 2.Costs of the application to be costs in the intended appeal
- On appeal from
- Employment & Labour Relations Court at Mombasa
- E.& L.R.C. Cause No. 504 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution and injunction pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaskazi Beach Hotel v Kenya Union of Domestic, Hotels, Educational Institutions & Hospital [2016] KECA 539 (KLR)", Case Analysis (2016). Civil Application No. 56 of 2015 (UR 45/15). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/539/eng@2016-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.