Proto Energy Limited v Kenya Petroleum Oil Workers Union
The bottom line
#The Court of Appeal refused to halt a union recognition order against Proto Energy, confirming that courts will not stay rulings that can be undone or refunded later.
What this practically means
#Executive summary
#Key legal issues
#Competence of prayers for stay of the ruling of 7th July 2023
Those prayers were incompetently before the Court because the applicant withdrew its Notice of Appeal against the 7th July 2023 ruling; the Court would only consider the prayers relating to the ruling of 9th February 2024.
The Court clarified that Rule 5(2)(b) jurisdiction is predicated on a filed notice of appeal against the decision sought to be stayed. Although the applicant filed a Notice of Appeal dated 14th July 2023 against the first ruling, it subsequently filed a Notice of Withdrawal dated 24th August 2023 after lodging its review application. Prayers targeting that ruling therefore could not stand.
Arguability of the intended appeal
The intended appeal was arguable because it raised the question whether the ELRC took into account the proper and relevant factors in dismissing the review application.
Applying the settled principles, the Court held that an arguable appeal need not succeed but must not be frivolous, citing Stanley Kangethe Kinyanjui v Tony Ketter and Nicholas Muriuki Kangangi v Attorney General. The draft memorandum of appeal raised at least one arguable point regarding whether the ELRC considered proper and relevant factors in dismissing the review, which sufficed.
Whether the intended appeal would be rendered nugatory
The applicant failed the second limb; the appeal would not be rendered nugatory because remittances are refundable and recognition is reversible, and the 9th February 2024 ruling was a negative order with nothing to stay.
The Court noted that the ruling sought to be stayed merely dismissed the review application, so there were no positive orders capable of stay. As to the injunction, any union dues remitted are refundable and any recognition granted can be revoked under section 54(5) of the Labour Relations Act once a union loses simple majority, so compensability existed.
Legal principles established
#- Exercise of the Court's jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules, 2022 requires that a notice of appeal has been filed against the very decision or action sought to be stayed; prayers relating to a decision against which the notice of appeal was withdrawn are incompetent.
- An applicant under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent stay; whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or capable of compensation by damages.
- A ruling dismissing an application for review is a negative order with nothing capable of stay.
Court orders
#- 1.The application dated 19th February 2024 is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Employment and Labour Relations Court, Nairobi
- Nairobi ELRC Cause No. E331 of 2022 - Kenya Petroleum Oil Workers Union v Proto Energy Limited
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Proto Energy Limited v Kenya Petroleum Oil Workers Union", Case Analysis (2024). Civil Application No. E132 of 2024 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/860/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.