Finlay Flowers (K) Limited & another v Kenya Plantation & Agricultural Workers Union [2019] KECA 656 (KLR)
The bottom line
#Kenya's Court of Appeal paused an 81-million-shilling reinstatement order against Finlay Flowers because employees couldn't realistically refund the money if the appeal succeeded.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The court found the intended appeal arguable, not frivolous, on the ground that the ELRC judge may have failed to consider the parameters in Section 49(4)(b), (c) and (d) of the Employment Act before ordering reinstatement.
The applicants contended that the Judge ordered reinstatement without considering the statutory factors under Section 49(4)(b), (c) and (d) of the Employment Act, and that despite finding the strike unlawful, ordered reinstatement unconditionally with full benefits. The court noted that an arguable appeal is not one that will necessarily succeed; a single bona fide arguable ground suffices. It concluded the intended appeal was not frivolous and was indeed arguable.
Whether the intended appeal would be rendered nugatory if stay was not granted
The court held the appeal would be rendered academic because the employees had been replaced, had been reinstated and sent on leave with pay, and the prospect of refunding over Kshs. 81 million was not realistic.
The reinstatement order carried dues from December 2016 to 8th February 2019 exceeding Kshs. 81 million, which the grievants could not realistically refund if the appeal succeeded. The respondent's claim that the collective bargaining agreement would allow offsetting the dues was unexplained and unconvincing. Considering the employees had been replaced and were on paid leave, the court was persuaded execution would render the appeal academic.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the appeal or intended appeal is arguable and that, absent the order sought, its success would be rendered nugatory.
- Inability of the decree-holder to refund a decretal sum is not the sole factor in assessing nugatory impact; the question is considered within the circumstances of each particular case.
Court orders
#- 1.Stay of execution of the judgment of the ELRC in ELRC No. 171 of 2016 delivered on 1st February 2019 pending the hearing and determination of the intended appeal
- 2.Applicants to file and serve the memorandum and record of appeal within 45 days from the date of delivery of the ruling
- 3.The appeal to be heard and determined on a priority basis
- 4.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- Employment and Labour Relations Court at Kericho
- Kericho Employment and Labour Relations Cause No. 171 of 2016
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Christine Kinya Gikunda v Mantrac Limited [2019] KEELRC 634 (KLR)[2019] KEELRC 634 (KLR)11 Oct 2019applied
Cite this brief
#Cite this brief
Caselaw, "Finlay Flowers (K) Limited & another v Kenya Plantation & Agricultural Workers Union [2019] KECA 656 (KLR)", Case Analysis (2019). Civil Application No. 18 of 2019 (UR 12 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/656/eng@2019-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.