Pest Control Products Board v Pest Control Products Board (Civil Application E475 of 2023) [2024] KECA 1504 (KLR)
The bottom line
#The Court of Appeal refused to pause a ruling requiring an employer to recognise a union, because the employer could undo it all if its appeal later succeeded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, unless stay of execution is granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable, meeting the low threshold of being prima facie not frivolous.
The court restated that an arguable appeal is not one that must succeed but one that is prima facie not frivolous and deserving of full argument. Considering the low threshold and having perused the impugned judgment together with the draft grounds of appeal - including alleged failures to determine the recognition threshold, the validity of Form S, and to consider the applicant's evidence - the court found the appeal arguable.
Whether the intended appeal will be rendered nugatory absent a stay
No. The applicant failed to demonstrate nugatory-ness; the consequences of executing the judgment are reversible.
The court distinguished substantial loss from nugatory-ness, holding that in a 5(2)(b) application the test is the latter. The orders of the trial court - recognition of the union, check-off deductions and signing of a recognition agreement - were reversible: on success, the recognition agreement could be nullified and remitted dues reimbursed, and no inability to reimburse was shown.
Legal principles established
#- In a rule 5(2)(b) application, the applicant must satisfy the twin tests of arguability and nugatory-ness; substantial loss is not the applicable test on the nugatory limb.
- An arguable appeal need not be one that will succeed; it is enough that it is not frivolous.
- 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.Dismissal of the notice of motion dated 12th October 2023 seeking stay of execution of the judgment of Ocharo, J. delivered on 27th July 2023 in ELRC Cause No. 812 of 2017
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Cause No. 812 of 2017
- Jurisdiction invoked
- Inherent appellate jurisdiction to grant stay of execution pending appeal under the Court of Appeal's rule 5(2)(b) jurisdiction (referred to in the judgment as 'a 5(2)(b) application')
Relief refused
#Stay of execution of the ELRC judgment pending the intended appeal
The applicant failed to satisfy the twin principles: although the appeal was held arguable, it did not demonstrate that the appeal would be rendered nugatory, since the recognition agreement could be nullified and union dues reimbursed if the appeal succeeded.
Costs
This application is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is trite law that in an application of this nature, the applicant must satisfy this Court that the appeal or intended appeal is arguable and that unless the orders sought is granted, the appeal, if successful, shall be rendered nugatory.
An arguable appeal is not necessarily one that must succeed. It is one that is, prima facie, not frivolous, one that should be argued fully.
In a 5(2)(b) application, the applicant is not required to show that it will sufier substantial loss if the orders sought are not granted. What must be demonstrated is that the intended appeal shall be rendered nugatory unless the orders sought are granted.
Since the applicant has not satisfied the twin principles, we are unable to grant the orders sought. Consequently, this application is dismissed with costs to the respondent.
Issues in the judgment
#The coram is printed with inconsistent formatting: 'D. K. MUSINGA, (P.)' carries a designation while the other two judges appear without initials or honorifics, and the parties' full names are not stated in the judgment text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pest Control Products Board v Pest Control Products Board (Civil Application E475 of 2023) [2024] KECA 1504 (KLR)", Case Analysis (2024). Not stated in judgment (notice of motion dated 12th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1504/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.