Peter L. Lemoosa & 14 others (All Suing in their Capacities and as Delegates and Officials of UASU Kenyatta University Chapter) v Registrar of Trade Union & 8 others
The bottom line
#The Court of Appeal refused to halt fresh UASU Kenyatta University Chapter elections, because any new election could simply be reversed if the appeal later succeeded.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The appeal was arguable because the regularity and annulment of the 25th March 2021 elections raised a pertinent bona fide issue.
Applying the Kenya Tea Growers test, the court held that an applicant need only show one non-frivolous issue. The issue of the regularity and annulment of the 25th March 2021 elections was pertinent and sufficient to engage the Court's mind on appeal, so the arguability limb was satisfied.
Whether the appeal would be rendered nugatory without a stay
The nugatory aspect was not demonstrated; fresh elections can be nullified or reversed if the appeal succeeds, and the applicants would suffer little prejudice.
Applying Reliance Bank v Norlake, the court asked whether the orders to be stayed were reversible. Fresh elections could easily be nullified or reversed on a successful appeal. A free and fair election would give the applicants a chance to reclaim their seats, and a stay would prolong the leadership vacuum harming the Chapter's operations.
Staying orders of a negative or declaratory nature
Orders of a negative or declaratory nature, including the declaration of violation of rights and the nullification order as framed, are incapable of being stayed.
The court identified which of the ELRC orders were capable of being stayed. Orders (a), (b) and (g) were negative or declaratory and therefore incapable of being stayed; only orders (c), (d) and (f) relating to nullification, register update and fresh elections were capable of suspension.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that its success will be rendered nugatory absent a stay; failure on either limb is fatal.
- An arguable appeal is one that is not frivolous and raises at least one bona fide issue deserving determination; the applicant need not show the appeal will succeed.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.The notice of motion dated 7th September 2021 is dismissed
- 2.Costs of the motion awarded to the respondents who participated in the motion
- On appeal from
- Employment & Labour Relations Court of Kenya at Nairobi
- ELRC Petition No E093 of 2021 (consolidated with Petition No E043 of 2021)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter L. Lemoosa & 14 others (All Suing in their Capacities and as Delegates and Officials of UASU Kenyatta University Chapter) v Registrar of Trade Union & 8 others", Case Analysis (2022). Civil Application E498 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/690/eng@2022-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.