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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. 53 of 2018· [2021] KECA 658 (KLR)

Trailink Group Limited v Kenya Long Distance Truck Drivers and Allied Workers Union

Court of Appeal
23 April 2021
2,243 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to halt an employment ruling, confirming you cannot stay an order that dismissed your case or whose deadlines have already passed.

What this practically means

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Executive summary

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Trailink Group Limited applied to the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules, 2010 for stay of execution of the judgment of Nduma, J. in ELRC Cause No. 2181 of 2014, which found the dismissal of grievants wrongful, awarded eight months' salary compensation, directed recognition of the union and payment of terminal benefits, and for stay of the ruling of 24th November, 2017 which had granted conditional stay but declined to stay the recognition directive. A notice of appeal had been lodged only against the main judgment. The Court identified preliminary issues. First, applying Githunguri vs. Jimba Credit Corporation, its Rule 5(2)(b) jurisdiction depends on a valid notice of appeal; since none was lodged against the ruling of 24th November, 2017, it severed and declared inconsequential the segment of the prayers touching that ruling. Second, construing Rule 41, it held that prior stay applications and orders in the trial court did not oust its jurisdiction. On the merits, applying Nairobi Metropolitan PSV Saccos Union and Shimmers Plaza, the Court held that a dismissal is a negative order incapable of being stayed, and that the timelines in the orders in favour of the respondent had lapsed, leaving nothing capable of being stayed. It therefore found no basis to interrogate the twin prerequisites of arguability and nugatory-ness. The application was dismissed with costs to the respondent in a unanimous ruling delivered at Nairobi on 23rd April, 2021 by Nambuye, Karanja and Warsame, JJ.A.

Key legal issues

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01

Whether relief under Rule 5(2)(b) requires a valid notice of appeal

Holding

The Court can only grant relief under Rule 5(2)(b) where a valid notice of appeal anchors the application; absent a notice of appeal against a ruling, prayers touching that ruling are severable and fall away

Reasoning

The Court applied Githunguri vs. Jimba Credit Corporation, holding that its Rule 5(2)(b) jurisdiction stems from a demonstrated valid notice of appeal. The record contained only one notice of appeal directed at the main judgment of 26th May, 2017 and none against the ruling of 24th November, 2017. Rather than striking out the entire application, the Court severed the defective segment.

p. 3
02

Whether prior stay applications in the trial court bar a fresh application under Rule 5(2)(b)

Holding

Rule 41 permits this Court to entertain a stay application notwithstanding prior applications and orders in the trial court

Reasoning

The respondent argued the applicant had exhausted its right to stay relief through two prior applications before the ELRC. The Court construed Rule 41 as donating jurisdiction to entertain such an application by an aggrieved party notwithstanding any trial court order, and held it was properly seized of the matter before turning to the merits.

p. 3
03

Whether there is anything capable of being stayed

Holding

A dismissal is a negative order incapable of being stayed, and lapsed timelines in orders cannot be stayed; accordingly the application failed without reaching the arguability and nugatory-ness thresholds

Reasoning

Relying on Nairobi Metropolitan PSV Saccos Union and Shimmers Plaza, the Court found that the applicant's claim had been dismissed and that the timelines in the orders granted in favour of the respondent had long lapsed. With nothing capable of being stayed, there was no basis to interrogate whether the twin prerequisites under Rule 5(2)(b) were met.

p. 3

Legal principles established

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  • Jurisdiction under Rule 5(2)(b) to grant stay of execution, injunction or stay of further proceedings arises only where a valid notice of appeal has been lodged against the decision or ruling appealed from
  • There is no jurisdiction under Rule 5(2)(b) to stay an order that resulted in a dismissal or striking out, or where there is no positive order capable of being restrained
  • Rule 41 of the Court of Appeal Rules donates jurisdiction to entertain a stay application notwithstanding any prior application or order made in the trial court on the same relief

Court orders

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  1. 1.Severed and declared inconsequential the segment of the prayers touching on the ruling of 24th November, 2017
  2. 2.Dismissed the application with costs to the respondent
On appeal from
Employment and Labour Relations Court
Nairobi ELRC Cause No. 2181 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010

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, "Trailink Group Limited v Kenya Long Distance Truck Drivers and Allied Workers Union", Case Analysis (2021). Civil Application No. 53 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/658/eng@2021-04-23

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