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Court of AppealPartially AllowedCivil Application No. 187 of 2012· [2016] KECA 807 (KLR)

Emirates Airline Limited v Stephen Chase Kisaka [2016] KECA 807 (KLR)

Court of Appeal
5 February 2016
PKP. Kihara KariukiMohamed Abdulahi WarsameM. WarsameSKS. ole Kantai
1,469 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed Emirates Airline to hire a replacement for a dismissed manager by staying an employment court injunction, confirming damages can make any loss good.

What this practically means

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Executive summary

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The Court of Appeal, in a single ruling of the full bench of Kihara Kariuki (PCA), Warsame and Kantai, JJ.A, determined an application under Rule 5(2)(b) of the Court of Appeal Rules by Emirates Airline Limited seeking a stay of execution of orders of the Employment and Labour Relations Court (Wasilwa, J.) that had restrained it from recruiting a replacement for Stephen Chase Kisaka, whose employment as Sales and Marketing Manager had been terminated in October 2014. The court reaffirmed the twin principles governing such applications: the applicant must demonstrate that the intended appeal is arguable and that it would be rendered nugatory if stay is refused, both limbs being cumulative. The court found the appeal arguable because the applicant genuinely challenged the judge's failure to consider the prejudice from the injunction. On the nugatory limb, it held that the respondent's claim would not be rendered redundant if the position was filled, since the Employment and Labour Relations Court has jurisdiction under section 12(3) of the Industrial Court Act to award damages capable of making good any loss. Invoking the balance-of-convenience principle, the court found it favoured the applicant, allowed the motion, and stayed the orders of the Employment and Labour Relations Court pending the hearing and determination of the appeal. Costs of the application were ordered to abide the outcome of the appeal. This decision binds subordinate courts and the Employment and Labour Relations Court on the Rule 5(2)(b) principles it restates, while leaving the underlying merits of the appeal untouched.

Key legal issues

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01

Twin principles for stay under Rule 5(2)(b)

Holding

The applicant must demonstrate both that the appeal is arguable and that it would be rendered nugatory if stay is refused; the discretion is unfettered but must be exercised judiciously.

Reasoning

The court restated the settled principles from Republic v Kenya Anti-Corruption Commission: the discretion under Rule 5(2)(b) is unfettered but judicial, and the applicant bears the burden of establishing both limbs. Demonstrating only one limb does not avail the applicant. An arguable appeal is one that raises a bona fide issue deserving consideration, not one that must necessarily succeed.

p. 2
02

Arguability of the intended appeal

Holding

The appeal was arguable because the applicant took issue with the learned judge's failure to consider the prejudice it would suffer from the injunction orders.

Reasoning

From the ruling and the memorandum of appeal, the applicant challenged the judge's failure to consider prejudice from the injunction. Applying the standard that an arguable appeal is one raising a bona fide issue deserving consideration, the court found the first limb satisfied without making definitive findings that would embarrass the appeal bench.

p. 3
03

Nugatory value and adequacy of damages

Holding

The intended appeal would not be rendered nugatory by the filling of the position because the Employment and Labour Relations Court can award damages, and the balance of convenience favoured the applicant.

Reasoning

The court held that any damage to the respondent could be made good by an award of damages since the Employment and Labour Relations Court has jurisdiction to award damages under section 12(3) of the Industrial Court Act. Drawing on the Wambora decision, the court took the balance of convenience into account and found it favoured the applicant, allowing the motion.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both limbs - an arguable appeal and that the appeal would be rendered nugatory if stay is not granted; satisfying only one limb is insufficient.
  • In a Rule 5(2)(b) application the court must not make definitive or final findings of fact or law that may embarrass the hearing of the main appeal.
  • In appropriate cases the balance of convenience may be taken into account in determining whether an appeal would be rendered nugatory.

Court orders

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  1. 1.The orders of the Employment and Labour Relations Court are stayed pending the hearing and determination of the appeal
  2. 2.Costs of the application shall abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Industrial Court ActSection 12(3)

Cases cited (3)

  • Republic v Kenya Anti-Corruption Commission & 2 Others
    [2009] KLR 31
  • Stanley Kangethe Kinyanjui v Tony Ketter & 2 Others
    [2013] eKLR
  • Martin Nyaga Wambora v County Assembly of Embu & 6 Others
    [2015] eKLR (Civil Application No. Nai. 46 of 2015 (UR 40 of 2015))
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
Employment and Labour Relations Cause No. 25 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Emirates Airline Limited v Stephen Chase Kisaka [2016] KECA 807 (KLR)", Case Analysis (2016). Civil Application No. 187 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/807/eng@2016-02-05

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