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Court of AppealAllowedCivil Application No. 152 of 2019 (UR. 141/2019)· [2019] KECA 217 (KLR)

Kenya Plantation & Agricultural Workers Union v Cabinet Secretary Labour & Social Protection & another [2019] KECA 217 (KLR)

Court of Appeal
8 November 2019
2,600 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 stopped enforcement of a labour court ruling on union dues, protecting the plantation workers' union while its appeal is heard.

What this practically means

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Executive summary

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The applicant, the registered trade union for the agriculture and plantation sector, sought a stay of execution of the judgment and decree of the ELRC at Kericho (Mbaru, J.) dated 14th May 2019, which had dismissed its claim and directed that Gazette Notice No. 157 of 13th June 2018 - citing the 2nd respondent's union dues deduction order - take effect from the date of judgment. The application was brought under sections 3, 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b) and 42 of the Court of Appeal Rules, pending an intended appeal. The Court framed a single issue: whether the applicant satisfied the twin principles for stay under rule 5(2)(b). On arguability, it held the draft memorandum raised meritorious grounds, including whether the trial court erred in failing to apply sections 48 and 50(2)(a) of the Labour Relations Act and in overlooking interim orders restraining the 2nd respondent from collecting dues. On nugatory value, the Court found recovery of dues collected by the 2nd respondent would be near impossible and no reimbursement undertaking was given. Applying Reliance Bank v Norlake and Mukuma v Abuoga, the Court held both limbs satisfied, allowed the application, directed a stay of execution of the judgment and decree pending the intended appeal, and ordered costs to abide the appeal's outcome.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable; issues concerning sections 48 and 50(2)(a) of the Labour Relations Act and alleged fraudulent misrepresentation merited consideration.

Reasoning

The Court examined the draft memorandum of appeal raising five grounds and found among them questions of law deserving consideration: whether the trial court erred in failing to apply statutory provisions and in disregarding interim orders, plus allegations of fraud requiring interrogation.

p. 3
02

Nugatory value absent stay

Holding

The appeal would be rendered nugatory without a stay, since the 2nd respondent gave no undertaking to reimburse dues and recovery would be near impossible.

Reasoning

The Court weighed competing claims, found the existence of interim orders in another suit relevant, noted the 2nd respondent offered no undertaking to reimburse collected dues, and applied the substantial-loss principle as the cornerstone of the rule 5(2)(b) jurisdiction.

p. 4

Legal principles established

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  • To succeed under rule 5(2)(b) an applicant must satisfy both limbs: an arguable appeal and that the appeal, if successful, would be rendered nugatory absent a stay.
  • An arguable appeal need not be one that must succeed; a single arguable ground suffices.
  • Rule 5(2)(b) jurisdiction is original and discretionary and does not constitute an appeal from the judge's discretion.

Court orders

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  1. 1.Application dated 20th May, 2019 allowed
  2. 2.Stay of execution of the judgment and decree of Mbaru, J. dated 14th May, 2019 pending the hearing and determination of the applicant's intended appeal
  3. 3.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3, 3A & 3B
  • Court of Appeal Rulesrules 5(2)(b) and 42
  • Labour Relations ActGazette Notice No. 157 dated 13th June, 2018; sections 48 and 50(2)(a)

Cases cited (5)

  • Stanley Kang’ethe Kinyanjui v Tony Keter & 5 Others
    Civil Application No. Nai 31/2012
  • Trust Bank Limited and Another v. Investech Bank Limited and 3 Others
    Civil Application Nai. 258 of 1999 (unreported)
  • Dennis Mogambi Mang’are v Attorney General & 3 Others
    Civil Application No. NAI 265 of 2011 (UR 175/2011)
  • Reliance Bank Ltd v. Norlake Investments Ltd
    [2002] E.A. 227
  • Mukuma v Abuoga
    [1988] KLR 645
On appeal from
Employment & Labour Relations Court at Kericho
E.L.R.C. Petition No. 222 of 2018
Jurisdiction invoked
Sections 3, 3A & 3B of the Appellate Jurisdiction Act and rules 5(2)(b) and 42 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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Cite this brief

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Cite this brief

Caselaw, "Kenya Plantation & Agricultural Workers Union v Cabinet Secretary Labour & Social Protection & another [2019] KECA 217 (KLR)", Case Analysis (2019). Civil Application No. 152 of 2019 (UR. 141/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/217/eng@2019-11-08

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