Cabinet Secretary, Ministry of Labour and Social Protection & 2 others v Central Organisation of Trade Unions [2019] KECA 937 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt orders restricting NSSF Board meetings because the government failed to prove the appeal would be pointless without a stay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, absent a stay, the intended appeal would be rendered nugatory
Key legal issues
#Twin principles for stay under Rule 5(2)(b)
An applicant must demonstrate an arguable appeal and that the appeal will be rendered nugatory absent stay; satisfying only one limb is insufficient
The Court restated the settled principles from Stanley Kangethe Kinyanjui v Tony Ketter, confirming that arguability requires only one bona fide arguable ground, while nugatory-ness requires proof that what is sought to be stayed is irreversible or not compensable in damages. Both limbs must be satisfied. The applicants satisfied the arguability limb but failed on the nugatory limb.
Nugatory-ness assessed on facts and conflicting claims
Whether an appeal is rendered nugatory depends on whether the effect of the stay order is reversible or compensable in damages, judged case by case and against both sides' claims
Relying on Reliance Bank v Norlake Investments and Sicpa Securities, the Court held the applicants' generalized averments about board paralysis did not establish irreparable harm to the essential core of the Board's functions. Future deliberations could cure pending exercises of functions, and the applicants could return to the trial court for interpartes hearing.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs - arguability and nugatory-ness - and failure on either limb defeats the application
Court orders
#- 1.Dismissal of the notice of motion dated 27th November 2018 seeking stay of execution
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Not stated in judgment
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act; Section 8 of the Law Reform Act; Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the ELRC order of 17th January 2018 pending the intended appeal
Applicants failed to establish that the appeal would be rendered nugatory absent a stay
Costs
Application dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The applicants, having failed to satisfy us on the nugatory aspect, we find that this application lacks merit and must fail and is dismissed with costs.
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous.
the applicants have still not established a prima facie case that the state of affairs created by the orders of the Court will irreparably affect or negate the very essential core of the functions of the Board
Issues in the judgment
#Citation year of Reliance Bank Ltd v Norlake Investments appears misprinted as '[200] 1 EA 227'
Paragraph numbering jumps from 16 to 18; paragraph 17 is absent from the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cabinet Secretary, Ministry of Labour and Social Protection & 2 others v Central Organisation of Trade Unions [2019] KECA 937 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/937/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.