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Court of AppealAllowedCivil Application No. 48 of 2015· [2016] KECA 601 (KLR)

Association for Physically Disabled of Kenya v Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers [2016] KECA 601 (KLR)

Court of Appeal
22 April 2016
1,630 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused enforcement of an order reinstating 24 redundant workers because complying first could bankrupt the employer before its appeal is heard.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Asike-Makhandia, Ouko and M'inoti, JJ.A.) on the Association for Physically Disabled of Kenya's motion for stay of execution of an award of the Employment & Labour Relations Court (Rika, J.) dated 23rd March 2015 in ELRC.C.No. 348 of 2013. The trial court had upheld the lawfulness and fairness of the applicant's redundancy of 24 long-serving employees but, finding them a special class requiring the court's protection, ordered their reinstatement without loss of salaries, seniority, privileges and benefits, with terminal benefits offset against accrued salaries. The applicant filed a notice of appeal and sought a stay pending its intended appeal. The court restated the dual test: the applicant must show an arguable appeal and that the appeal would be rendered nugatory absent a stay, both limbs being necessary. It found a single arguable issue in the apparent inconsistency of upholding the redundancy yet ordering reinstatement, and held the nugatory limb satisfied on uncontroverted evidence of the applicant's dire finances and the employees' inability to refund accrued salary arrears of Kshs.9,792,261/-. The respondent filed no opposing affidavit, leaving the applicant's averments unchallenged. The court granted the stay in prayer 1 of the motion and ordered that costs of the application abide the outcome of the intended appeal.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was arguable because the trial court, having found the redundancy lawful and procedurally fair, nonetheless ordered reinstatement of the 24 employees as a special class requiring the court's protection; that inconsistency deserved consideration on appeal.

Reasoning

The court identified one issue in the judgment the applicant protested: that having found the redundancy lawful, fair and within the Collective Bargaining Agreement, the trial court still ordered reinstatement. The court held that this was not frivolous but raised a question worthy of further interrogation, and a single such arguable point is enough.

p. 3
02

Whether the intended appeal would be rendered nugatory absent a stay

Holding

Yes. The applicant was in dire financial straits; compliance with reinstatement would further dent its finances possibly beyond recovery, and the employees' ability to refund the accrued salary arrears of Kshs.9,792,261/- was uncontroverted.

Reasoning

Applying the nugatory test from Accredo Ag, the court asked whether success on appeal would be a pyrrhic victory. Unchallenged affidavit evidence showed the applicant's financial constraints, that reinstatement without loss of salaries and benefits would push it over the precipice, and that the respondents could not refund the decretal sum if the appeal succeeded.

p. 3

Legal principles established

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  • Jurisdiction over stay applications in the Court of Appeal is original and discretionary and is properly invoked only where a notice of appeal has been filed.
  • An applicant for stay must satisfy both the arguability limb and the nugatory limb; satisfying only one is insufficient.
  • An arguable appeal need not be one that must succeed; a single arguable point worthy of further interrogation suffices.

Court orders

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  1. 1.Stay of the implementation and execution of the award of the Employment & Labour Relations Court in ELRC.C.No. 348 of 2013 granted in prayer 1 of the motion, pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to abide the outcome of the intended appeal

Authorities

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Cases cited (5)

  • J.K. Industries Ltd v Kenya Commercial Bank Ltd
    (1982–88) 1 KAR 1088
  • Kenya Tea Growers Association & Anor v Kenya Planters & Agricultural Workers Union
    Nai. Civ. App. No. 72 of 2001 (UR)
  • Accredo Ag & 3 others v Steffano Uccelli & Anor
    (2015) eKLR
  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others
    C.A. No. 31
  • Reliance Bank Ltd v Norlake Investments Ltd
    (2002) 1 E.A.
On appeal from
Employment & Labour Relations Court at Mombasa
ELRC.C.No. 348 of 2013
Jurisdiction invoked
Original and discretionary jurisdiction of the Court of Appeal on an application for stay of execution pending an intended appeal, exercisable upon filing of a notice of appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Association for Physically Disabled of Kenya v Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers [2016] KECA 601 (KLR)", Case Analysis (2016). Civil Application No. 48 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/601/eng@2016-04-22

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