Kenya Airways Limited v Kenya Aviation & Allied Workers Union [2020] KECA 680 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable on the question whether an employee out of employment for over three years can be reinstated.
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.
Whether the appeal would be rendered nugatory
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.
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.
Legal principles established
#- 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
#- 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.Costs of the motion to be in the intended appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.