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Court of AppealAllowedCivil Application No. 225 of 2019· [2020] KECA 680 (KLR)

Kenya Airways Limited v Kenya Aviation & Allied Workers Union [2020] KECA 680 (KLR)

Court of Appeal
8 May 2020
1,513 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal paused a ruling requiring Kenya Airways to reinstate a flight attendant, because reinstateing her before the appeal would make that appeal pointless.

What this practically means

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Executive summary

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Kenya Airways Limited applied to the Court of Appeal at Nairobi, under Rule 5(2)(b) of the Court of Appeal Rules, 2010, for a stay of execution of a judgment of the Employment and Labour Relations Court (Byram Ongaya, J) delivered on 28th June 2019 in ELRC Cause No. 1349 of 2015. That judgment ordered the airline to re-engage Anastacia M. Muli, a flight attendant and member of the respondent Union, to her former position effective 1st July 2019, with the intervening period treated as leave without pay for continuity of service. The airline, which had lodged a Notice of Appeal, argued that the reinstatement order was tantamount to specific performance, that re-engagement was not pleaded, and that the grievant's four-year absence from the fleet made re-engagement a safety risk; failing a stay, the appeal would be academic. The Union opposed, contending the judgment was sound and that the grievant would suffer irreparable loss; counsel later noted she had since been reinstated. Applying the twin Rule 5(2)(b) principles as summarised in Stanley Kang'ethe Kinyanjui v Tony Keter, the court found a single arguable point in whether an employee out of employment for over three years can be reinstated, and held that re-engagement would render the appeal superfluous. Both limbs satisfied, the full bench allowed the motion and ordered stay of execution pending the intended appeal, with costs of the motion in the intended appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable on the question whether an employee out of employment for over three years can be reinstated.

Reasoning

The court noted that the grievant's employment was terminated and effected on 13th January 2015, so more than three years had elapsed by the date of the ELRC judgment on 28th June 2019. Whether reinstatement was possible after such a lapse of time raised a bona fide arguable point, meeting the first limb of the Rule 5(2)(b) test without making definitive findings of fact or law.

p. 2
02

Whether the appeal would be rendered nugatory

Holding

If the grievant were re-engaged, the intended appeal would be rendered nugatory because she would already have returned to employment, rendering the appeal superfluous.

Reasoning

The court accepted the applicant's submission that reinstatement pending appeal would render the appeal an academic exercise: once the grievant went back to her employment, success on appeal could not undo that state of affairs. The nugatory limb was therefore satisfied, and with both limbs met, the discretionary stay was granted.

p. 3

Legal principles established

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  • An application under Rule 5(2)(b) must satisfy the twin principles of arguability and nugatory-ness, both limbs being conditions precedent to a stay.
  • It is sufficient for arguability that a single bona fide arguable point is established.

Court orders

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  1. 1.Stay of execution of the judgment of Byram Ongaya, J dated 28th June 2019 in ELRC Cause No. 1349 of 2015 pending the hearing and determination of the intended appeal
  2. 2.Costs of the motion to be in the intended appeal

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Court of Appeal Rules, 2010Rule 75

Cases cited (8)

  • Stanley Kang'ethe Kinyanjui vs. Tony Keter & 5 Others
    [2013] eKLR
  • Ruben & 9 others v Nderitu & Another
    (1989) KLR 459
  • Halai & Another v Thornton & Turpin (1963) Ltd.
    (1990) KLR 365
  • David Morton Silverstein Atsango Chesoni
    Civil Application No. Nai 189 of 2001
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal iseases v. Kinyua
    [1990] KLR 403
On appeal from
Employment and Labour Relations Court at Nairobi
ELRC Cause No. 1349 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010

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 Airways Limited v Kenya Aviation & Allied Workers Union [2020] KECA 680 (KLR)", Case Analysis (2020). Civil Application No. 225 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/680/eng@2020-05-08

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