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Court of AppealDismissedCivil Application No. 149 of 2020· [2021] KECA 513 (KLR)

Rift Valley Railways Workers Union(k) v Kenya Railways Staff Retirement Benefits Scheme & 2 others

Court of Appeal
4 June 2021
1,183 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled you cannot seek a stay of a court decision that merely dismisses your case and orders nobody to do anything.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nambuye, Asike-Makhandia and Kantai, JJA) dated 4th June 2021 on a motion under Rule 5(2)(b) of the Court of Appeal Rules by the Rift Valley Railways Workers Union (K), seeking stay of execution of a ruling of the Employment and Labour Relations Court at Nairobi (M. Onyango, J) dated 12th July 2019 in ELRC Case No. 2289 of 2015. By that ruling the ELRC had struck out the applicant's application as res judicata, finding that one of its prayers for stay had already been granted and that the applicant had filed multiple suits over the same subject matter. The applicant argued that the intended appeal was arguable and would be rendered nugatory absent stay, and that some 8,600 members' pension interests were at risk. The respondents and interested parties opposed, maintaining that the order sought to be stayed was negative in nature and incapable of execution, and that the Rule 5(2)(b) threshold had not been met. The court, restating the twin Rule 5(2)(b) tests and the purpose of stay as preservation of the substratum of the appeal, held that a decision that merely strikes out or dismisses an application - imposing no obligation to do, refrain from doing, or pay anything - is negative and cannot be stayed, applying Western College of Arts and Applied Sciences v. Oranga. The motion was dismissed with no order as to costs, and the ruling applies mutatis mutandis to Civil Application No. 174 of 2020, a companion application by the same applicant.

Key legal issues

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01

Whether a negative order (striking out/dismissal) can be stayed under Rule 5(2)(b)

Holding

No. Stay is only available in respect of positive and enforceable orders; where the court below merely dismissed the application without directing any party to do or refrain from doing anything, there is nothing to execute and the motion must fail.

Reasoning

The court applied Western College of Arts and Applied Sciences v. Oranga, holding that execution can only lie against a positive obligation. The ELRC had merely struck out the applicant's application; it ordered no party to do or refrain from anything or to pay any sum, save possibly as to costs. Accordingly there was no enforceable order capable of being preserved by stay, and the substratum-preservation purpose of Rule 5(2)(b) had nothing to attach to.

p. 2
02

Whether the intended appeal was arguable and would be rendered nugatory

Holding

The court did not engage substantively with arguability because the motion failed on the threshold point that the order sought to be stayed was incapable of execution.

Reasoning

Although the court restated the twin test for Rule 5(2)(b) applications - arguability of the intended appeal and whether it would be rendered nugatory - it disposed of the motion on the single ground that the decision below was negative in nature. The respondents had argued the applicant failed to demonstrate arguability and nugatory-ness; the court found it unnecessary to resolve these given the fatal defect in the stay application.

p. 2

Legal principles established

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  • A negative decision - one that merely dismisses or strikes out an application without directing any party to do or refrain from doing anything - is incapable of being stayed; an order of stay can only issue in respect of a positive and enforceable order.
  • Rule 5(2)(b) is a tool of preservation of the substratum of an appeal.
  • An applicant for stay under Rule 5(2)(b) need not establish a multiplicity of arguable issues; one arguable issue suffices.

Court orders

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  1. 1.The application is dismissed on the ground that the order sought to be stayed is negative in nature and incapable of execution
  2. 2.No order as to costs
  3. 3.The ruling applies mutatis mutandis to Civil Application No. 174 of 2020
On appeal from
Employment and Labour Relations Court at Nairobi
Case No. 2289 of 2015 (ruling delivered 12th July 2019)
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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rift Valley Railways Workers Union(k) v Kenya Railways Staff Retirement Benefits Scheme & 2 others", Case Analysis (2021). Civil Application No. 149 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/513/eng@2021-06-04

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