Justus Aloo Ogeka & 6 others (as interim officials of Kenya National Union of Cooperatives Staff) v Registrar of Trade Unions & 2 others [2016] KEELRC 1711 (KLR)
The bottom line
#A Kenyan court refused to stay a judgment already carried out, but froze the new union's activities pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Conditions for stay of execution under Order 42 Rule 6(2)
The applicant satisfied the conditions of no unreasonable delay, willingness to give security, and an arguable appeal, but the decisive obstacle was that the orders had already been executed.
The court set out the three Ord 42 Rule 6(2) conditions: substantial loss, absence of unreasonable delay, and security. The application filed on 26th January 2016 followed the judgment of 22nd January 2016 promptly; counsel offered security; and the draft memorandum raised arguable points per Syner-Med Pharmaceuticals v Glaxo Group Limited. Yet because registration had already occurred on 25th January 2016, the stay was overtaken by events.
Functus officio and jurisdiction where judgment orders have been fully implemented
The Appellants contended the Court was functus officio; the Court did not rule on that contention directly but declined the stay because the orders had been complied with, while exercising power to preserve the status quo pending the appeal.
The Appellants argued, via the replying affidavit of Hon. Justus Aloo Ogeka, that the Registrar had registered the union and issued Certificate No. TU/175 on 25th January 2016, before the application was moved on 27th January 2016, so the Court's final orders were fully complied with and it lacked jurisdiction. The Court, without expressly determining the functus officio plea, held there was nothing to stay but preserved the status quo for the Court of Appeal.
Legal principles established
#- A court cannot grant a stay of orders that have already been fully complied with; where the judgment has been implemented, there is nothing capable of being stayed.
- A court that lacks power to suspend a registration certificate may nonetheless order maintenance of the status quo pending further orders of the appellate court.
Court orders
#- 1.Refusal of the principal prayer for stay of the judgment of 22nd January 2016 (nothing left to stay as the judgment had been implemented)
- 2.Refusal of the alternative prayer to suspend the certificate of registration, the Court lacking that power
- 3.Order that the status quo be maintained pending further orders of the Court of Appeal, namely the suspension of the activities of the Kenya National Union of Cooperatives Staff as directed by the Registrar's letter of 28th January 2016
- 4.Costs of the application to be costs in the appeal
- Jurisdiction invoked
- Inherent powers of the Employment and Labour Relations Court to preserve the subject matter of an intended appeal to the Court of Appeal (application under Order 42 Rule 6(2) of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Justus Aloo Ogeka & 6 others (as interim officials of Kenya National Union of Cooperatives Staff) v Registrar of Trade Unions & 2 others [2016] KEELRC 1711 (KLR)", Case Analysis (2016). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1711/eng@2016-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.