Aviation & Allied Workers Union v Kenya Airways Limited, & 3 others [2013] KEELRC 544 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the Court is functus officio having rendered the award
- 3.Whether the application is an abuse of the court process amounting to forum shopping
- 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
#Jurisdiction of the Industrial Court over the stay application
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.
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.
Whether the application is an abuse of process (forum shopping)
The objection of forum shopping was dismissed as unsupported.
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.
Conditions for grant of stay of execution pending appeal
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.
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.
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.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.
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.
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.
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.
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.
Issues in the judgment
#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.
- Peter Karumbi Keingati & 4 others v Ann Nyokabi Nguthi & 4 others [2015] KECA 785 (KLR)[2015] KECA 785 (KLR)24 Apr 2015applied
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.