Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedApplication dated 17th December 2012 (Civil Application No. Nairobi 310 of 2012 (UR 224/2012) pending in the Court of Appeal)

Aviation & Allied Workers Union v Kenya Airways Limited, & 3 others [2013] KEELRC 544 (KLR)

Industrial Court of Kenya
14 January 2013
2,529 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Industrial Court paused enforcement of a reinstatement award against Kenya Airways, confirming that an informal oral refusal of stay does not block a formal stay application.

What this practically means

#

Executive summary

#
Kenya Airways Limited applied to the Industrial Court under Sections 12(3)(i) and (viii) of the Industrial Court Act, 2011 and Rule 16 of the Industrial Court (Procedure) Rules, 2010 for a stay of execution of the award and orders the Court issued on 3rd December 2012, pending the hearing of its stay application before the Court of Appeal in Civil Application No. Nairobi 310 of 2012 (UR 224/2012). The Claimant, Aviation & Allied Workers Union Kenya, raised preliminary objections that the application was res judicata given the Court's earlier oral refusal of a 45-day stay, that the Court was functus officio, and that the application was forum shopping and an abuse of process; it further argued that the employees had already been reinstated with back pay and that a stay would not be judicious. The Court rejected the jurisdictional challenges, holding that its authority vests in the Court as an institution with perpetual succession; that an informal oral refusal of stay is no bar to a formal application under Order 41 rule 4 of the Civil Procedure Rules; and that the forum-shopping objection lacked concrete grounds. On the merits, the Court found the applicant had acted without unreasonable delay, that the filed appeal raised substantial points of law and was arguable, and that requiring reinstated employees to deposit salaries as security would not be judicious, noting the applicant had continued paying their dues. The Court granted an interim order of stay of execution pending appeal in terms of the Notice of Motion dated 17th December 2012, with costs to abide in the cause.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Industrial Court has jurisdiction to hear the application for stay of execution notwithstanding the earlier oral refusal of stay on 3rd December 2012 (res judicata objection)
  2. 2.Whether the Court is functus officio having rendered the award
  3. 3.Whether the application is an abuse of the court process amounting to forum shopping
  4. 4.Whether the applicant has met the conditions for grant of stay of execution pending appeal (substantial loss, no unreasonable delay, security)

Key legal issues

#
01

Jurisdiction of the Industrial Court over the stay application

Holding

The Court has jurisdiction; its authority vests in the institution, not in an individual judge, and the res judicata objection fails because the earlier oral refusal of stay did not bar a formal application.

Reasoning

Under Section 12 of the Industrial Court Act and Article 162(2) of the Constitution, the Court has original jurisdiction over labour disputes. The Court is an entity with perpetual succession, so an individual judge's absence or prior involvement does not incapacitate the Court. Order 41 rule 4 of the Civil Procedure Rules permits an informal oral application for stay immediately after judgment, and refusal of such an informal application does not bar a formal application, so the matter is not res judicata and the applicant is rightly before the Court.

p. 3
02

Whether the application is an abuse of process (forum shopping)

Holding

The objection of forum shopping was dismissed as unsupported.

Reasoning

The Respondent contended that the applicant should pursue the stay application already filed in the Court of Appeal rather than return to the Industrial Court, characterising the application as forum shopping. The Court found the ground unsupported by any concrete grounds and dismissed it, noting that the application before it was for stay of execution, not for review of the orders previously granted, and that the two applications are fundamentally different.

p. 3
03

Conditions for grant of stay of execution pending appeal

Holding

The applicant established sufficient cause: no unreasonable delay, an arguable appeal, and circumstances justifying departure from the usual security requirement given the nature of the decree.

Reasoning

Stay is discretionary upon establishment of substantial loss, absence of unreasonable delay, and security. The applicant filed the appeal and the Court of Appeal application expeditiously, with a hearing date of 14th January 2013. The appeal raises substantial points of law and is not frivolous. On security, given the decree was reinstatement and back-payment of salaries, requiring employees to deposit salaries in Court would be impractical; the applicant's continued payment of dues sufficiently protects the claimants' interests pending appeal.

p. 4

Legal principles established

#
  • The authority of the Industrial Court vests in the Court as an institution, not in an individual judge; the absence of a particular judge does not render the Court inoperative.
  • An informal oral refusal of stay does not bar a subsequent formal application for stay; such an application is not res judicata.
  • The right of appeal under Section 17 of the Industrial Court Act is a constitutional right whose substance is that the appeal should not be rendered nugatory.
  • Where the decree is one of reinstatement and payment of salaries, ordering employees to refund salaries as security would not be judicious; continued payment of dues pending appeal may serve the interests of both parties.

Court orders

#
  1. 1.Interim order of stay of execution of the Award and orders made on 3rd December 2012 granted in terms of the Notice of Motion dated 17th December 2012, pending the hearing and determination of the application before the Court of Appeal (Civil Application No. Nairobi 310 of 2012 (UR 224/2012))

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 12(3)(i) & (viii) of the Industrial Court Act, 2011; Rule 16 of the Industrial Court (Procedure) Rules, 2010; Article 162(2) of the Constitution

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.

This Court authority is not conferred to the individual but rather to the Court as an entity with perpetual succession.
p. 2Institutional jurisdiction of the Industrial Court
I therefore find that this application is not res judicata, the applicant is rightly before this Court and the same will be determined on merit.
p. 3Res judicata and formal applications for stay
The right of appeal is a constitutional right that actualizes the right to access to justice, protection and benefit of the law, whose essential substance, encapsulates that the appeal should not be rendered nugatory, for anything that renders the appeal nugatory impinges on the very right of appeal.
p. 3Right of appeal and nugatory appeals
For these reasons I grant interim order of stay pending appeal in terms of the Notice of Motion dated 17 th December 2012. Costs thereof will abide in the cause.
p. 4Final orders / disposition

Issues in the judgment

#
minor

Date of delivery is internally inconsistent in the judgment text ('14rd day of January, 2013').

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.

Cite this brief

#

Cite this brief

Caselaw, "Aviation & Allied Workers Union v Kenya Airways Limited, & 3 others [2013] KEELRC 544 (KLR)", Case Analysis (2013). Application dated 17th December 2012 (Civil Application No. Nairobi 310 of 2012 (UR 224/2012) pending in the Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/544/eng@2013-01-14

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