Justus Aloo Ogeka & 7 others v Registrar of Trade Unions & 2 others [2017] KECA 612 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a court order refusing to do something cannot be stayed, and denied the union's application with costs.
What this practically means
#Executive summary
#Key legal issues
#Stay of a negative order
The ruling of 10th March 2016, which merely declined to enjoin the Union, was a negative order incapable of being stayed; staying it would indirectly achieve the joinder the trial court refused.
The impugned ruling declined joinder of the Union following a preliminary objection. It directed no party to do or refrain from anything, so there is nothing to enforce or restrain. Staying such an order would indirectly undo what the ELRC had done, which an appellate court on an interim application cannot do.
Locus standi of the Union
The Union, not being a party to ELRC Appeal No. 1A of 2012 and having been refused joinder, had no locus standi to bring the motion before the Court of Appeal.
The appeal against the Registrar's refusal to register the Union was filed by the individual applicants alone, because the Union did not then exist; it was registered only on 26th January 2016. Its application to be joined was declined on 10th March 2016. Having failed to be enjoined below, it could not bring the present motion.
Mandatory injunction on new ground
A mandatory order seeking relief never raised before the trial court cannot be pursued on appeal.
The respondents submitted, and the Court accepted, that the mandatory injunction sought against the Registrar was not an issue litigated in the court below. Relief on appeal is confined to matters that were before the trial court, so the Court declined to entertain it.
Legal principles established
#- A negative order - one that does not direct any party to do or refrain from doing anything or to pay any sum - is incapable of being stayed.
- A party who has been denied joinder in the proceedings below has no locus standi to seek orders in an appeal arising from those proceedings.
- An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory-prong tests.
Court orders
#- 1.The application dated 4th April 2016 is dismissed with costs
- On appeal from
- Employment & Labour Relations Court at Nairobi
- ELRC Appeal No. 1A of 2012
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (interim orders pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Justus Aloo Ogeka & 7 others v Registrar of Trade Unions & 2 others [2017] KECA 612 (KLR)", Case Analysis (2017). Civil Application No. 87 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/612/eng@2017-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.