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Court of AppealDismissedCivil Application No. 296 of 2019· [2021] KECA 483 (KLR)

Mjengo Limited v Bakery, Confectionery, Food Manufacturing & Allied Workers Union (kenya)

Court of Appeal
18 June 2021
Martha Karambu KoomeM. K. KoomeASAsike-MakhandiaFSF. Sichale
1,226 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a labour court ruling because dismissing a case is a 'negative order' that cannot be stayed.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Nairobi (Koome, Asike-Makhandia and Sichale, JJ.A.) delivered on 18th June 2021 on a notice of motion dated 5th September 2019 by Mjengo Limited under Rule 5(2)(b) of the Court of Appeal Rules, seeking stay of execution and stay of further proceedings pending an intended appeal against the judgment of Ongaya, J. of the Employment and Labour Relations Court. The ELRC had declined to revoke a Recognition Agreement dated 30th March 2012 between Mjengo Limited and the Union, dismissed the suit, awarded costs of Kshs. 100,000, and later directed that a draft Collective Bargaining Agreement be served for negotiations. The applicant alleged that the Union had procured the Recognition Agreement through misrepresentation and forgery of employees' signatures and check-off forms, matters reportedly confirmed by a document examiner, and contended that a stay was needed to prevent the CBA process rendering the appeal nugatory. The Union opposed, arguing the suit had been dismissed and that a negative order is incapable of being stayed. Applying the well-settled twin tests under Rule 5(2)(b), the court found the intended appeal arguable on the forgery and misrepresentation allegations, holding that a single arguable issue suffices and need not succeed. However, it was not persuaded the appeal would be rendered nugatory: the operative order was a negative dismissal order incapable of being stayed, and the costs award of Kshs. 100,000 was not large, with no material showing the respondent could not reimburse it. The motion was dismissed with costs to the respondent. The judgment is a whole-court ruling with no separate opinions or dissents.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was arguable because the allegations of misrepresentation and forgery in relation to the Recognition Agreement raised bona fide points.

Reasoning

The court found that the applicant's allegations of misrepresentation and forgery of signatures and check-off forms touching on the Recognition Agreement were arguable points. It declined to interrogate the other issues because one arguable issue suffices, and the arguable issue need not succeed at the appeal.

p. 2
02

Whether the intended appeal would be rendered nugatory absent a stay

Holding

The nugatory test failed because the only operative order was a negative dismissal order, and the costs award of Kshs. 100,000 was not a huge sum and the respondent appeared capable of reimbursement.

Reasoning

The court observed that the order complained of was dismissal of the suit, a negative order incapable of being stayed, save for the costs award. The sum of Kshs. 100,000 was not considered large, and no material showed the respondent could not reimburse it should the appeal succeed. The application was therefore unmerited and dismissed with costs.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin tests of an arguable appeal and nugatoriness; a single arguable issue suffices and it need not succeed at the appeal.
  • A negative order, such as dismissal of a suit, is not capable of being stayed.

Court orders

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  1. 1.The motion dated 5th September 2019 seeking stay of execution and stay of further proceedings is dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
NRB. ELRC Cause No. 1720 of 2017
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, "Mjengo Limited v Bakery, Confectionery, Food Manufacturing & Allied Workers Union (kenya)", Case Analysis (2021). Civil Application No. 296 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/483/eng@2021-06-18

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