Rift Valley Railways Workers Union(k) v Kenya Railways Staff Retirement Benefits Scheme & 2 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a negative order (striking out/dismissal) can be stayed under Rule 5(2)(b)
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.
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.
Whether the intended appeal was arguable and would be rendered nugatory
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.
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.
Legal principles established
#- 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
#- 1.The application is dismissed on the ground that the order sought to be stayed is negative in nature and incapable of execution
- 2.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- John Ngimor & 554 others v Northern Rangelands Trust & 3 others [2021] KEELC 51 (KLR)[2021] KEELC 51 (KLR)18 Nov 2021
Cite this brief
#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.