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Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated in the judgment (motion dated 18th March 2021)· [2021] KECA 207 (KLR)

Butali Sugar Mills Limited v Kenya Union of Sugar Plantation & Allied Workers

Court of Appeal
5 November 2021
1,539 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal paused a ruling ordering Butali Sugar Mills to pay house allowances, because repaying departed workers would be impossible if the appeal succeeded.

What this practically means

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Executive summary

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Butali Sugar Mills Limited moved the Court of Appeal by a motion dated 18th March 2021 under Rule 5(2)(b) of the Court of Appeal Rules, seeking a stay of execution of the judgment of Radido J delivered on 10th March 2021 in Kisumu Employment and Labour Relations Court Cause No. 18 of 2020, which found that the applicant's failure to pay mill cane tractor drivers house allowance offended Sections 31(1), (2) and (3) of the Employment Act, 2007 and ordered payment of house allowance from March 2021. The Finance Manager, Daniel Kiyondi, deposed that paying house allowance would destroy the substratum of the intended appeal, as the drivers were a high-turnover category of employees on fixed-term contracts, making any amounts paid irrecoverable if the appeal succeeded. The respondent, through its Branch Secretary Felix Idamang'eyo, opposed, contending that house allowance was a statutory entitlement, that no refund incapacity was shown, and that the draft appeal raised no triable issues. The Court applied the settled twin principles of Rule 5(2)(b) as summarised in Stanley Kangethe Kinyanjui v Tony Ketter & Others [2013] eKLR: arguability and nugatory-ness. It found a single bona fide arguable ground in the applicant's claim that drivers were paid consolidated salaries inclusive of house allowance, and found the appeal would be rendered nugatory because payments would be irrecoverable. The Court allowed the motion, stayed the judgment of Radido J pending the hearing and determination of the intended appeal, and ordered that costs of the motion abide the outcome of the appeal. This is an interlocutory decision of a differently constituted bench; it does not disturb the decision below.

Key legal issues

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01

Whether the applicant demonstrated an arguable appeal under Rule 5(2)(b)

Holding

Yes. The contention that mill cane tractor drivers were paid a consolidated salary inclusive of house allowance sufficed as a bona fide arguable ground, without definitive findings on it.

Reasoning

The Court applied the settled principles in Stanley Kang'ethe Kinyanjui v Tony Ketter & Others, noting that it exercises original and discretionary jurisdiction, that a single bona fide arguable ground suffices, and that it must not make definitive findings of fact or law lest it embarrass the bench eventually seized of the appeal. The applicant's contention that tractor drivers were paid consolidated salaries inclusive of house allowance met the first limb.

p. 3
02

Whether the intended appeal would be rendered nugatory absent a stay

Holding

Yes. House allowance payments made from March 2021 would not be recoverable if the appeal succeeded, since many drivers would have left employment or their fixed-term contracts expired.

Reasoning

The Court reasoned that the ordered payments were not reversible: the drivers were a high-turnover category of employees on fixed-term contracts, so amounts paid as house allowance could not be recovered from former or departed employees if the appeal succeeded, leaving the applicant exposed to loss. That irreversibility satisfied the second limb of the Rule 5(2)(b) test, warranting a stay of execution.

p. 4

Legal principles established

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  • In a Rule 5(2)(b) application the applicant must satisfy both twin principles: an arguable appeal and that the appeal will be rendered nugatory unless stay is granted.
  • An arguable appeal need only raise a single bona fide arguable ground; it need not be an appeal that must necessarily succeed, only one that is not frivolous.
  • An appeal is rendered nugatory where what is sought to be stayed, if allowed to happen, is irreversible or not reasonably compensable in damages.

Court orders

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  1. 1.The motion dated 18th March 2021 is allowed
  2. 2.Execution of the judgment of Radido J dated 10th March 2021 in Kisumu Employment and Labour Relations Court Cause No. 18 of 2020 is stayed pending the hearing and determination of the intended appeal
  3. 3.Costs of the motion to abide the outcome of the appeal
On appeal from
Employment and Labour Relations Court (referred to in the judgment as the High Court)
Kisumu Employment and Labour Relations Court Cause No. 18 of 2020, Kenya Union of Sugar Plantation & Allied Workers v Butali Sugar Mills Limited
Jurisdiction invoked
Rule 5(2)(b) 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, "Butali Sugar Mills Limited v Kenya Union of Sugar Plantation & Allied Workers", Case Analysis (2021). Not stated in the judgment (motion dated 18th March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/207/eng@2021-11-05

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