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ELRCAllowedNairobi ELRC No. 234 of 2018 (application dated 17th October, 2018)· [2019] KEELRC 1951 (KLR)

Banking, Insurance & Finance Union (K) v Bank of Baroda (K) Ltd & another [2019] KEELRC 1951 (KLR)

Employment and Labour Relations Court
7 March 2019
HWHellen Wasilwa
1,365 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court paused enforcement of a retirement-age ruling affecting most bank staff, so both sides wait for the appeal before anything changes.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 17th October 2018, brought by the 2nd Respondent/Applicant (Kenya Bankers Association) under Rule 5(2)(b), 41 and 47 of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act, seeking stay of execution of the judgment of Hon. Justice Hellen S. Wasilwa delivered on 8th October 2018 in Nairobi ELRC No. 234 of 2018, in which the court held that retirement age should be viewed as a negotiable item under the parties' Collective Bargaining Agreement. The applicant argued that the decision was erroneous, was arrived at without following the dispute procedures in the Labour Relations Act and the Recognition Agreement, would affect over 90% of bank staff not party to the suit, and that the appeal would be rendered nugatory with the current CBA lapsing in February 2019 and fresh negotiations imminent. The Claimant/Respondent union opposed, contending it was entitled to the fruits of judgment, that no arguable issues were raised, and that the appeal would not be rendered nugatory. A separate application by the 1st Respondent dated 18th October 2018 had been dismissed on 13th February 2019 for want of prosecution. The court applied Order 42 rule 6(2) of the Civil Procedure Rules, found the application was filed without unreasonable delay, accepted the claimed irreparable harm, and held that the primary duty of the court is to do justice so the appeal is not rendered nugatory. It allowed the application, granted stay pending appeal, and ordered costs to abide the outcome of the appeal.

Key legal issues

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Whether the conditions for stay of execution pending appeal were met

Holding

The court found the application was filed without delay and that granting stay would preserve the status quo and prevent the appeal from being rendered nugatory, given the number of employees affected.

Reasoning

The court applied Order 42 rule 6(2) of the Civil Procedure Rules, holding that the applicant satisfied the principle of filing without delay. It then considered the claimed irreparable harm affecting over 90% of staff and held that the court's primary duty is to do justice, so that the appeal, if successful, would not be rendered nugatory. Stay was accordingly granted and costs made to abide the appeal.

p. 3

Legal principles established

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  • The guiding principles for grant of stay of execution are substantial loss, absence of unreasonable delay and furnishing of security

Court orders

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  1. 1.Stay of execution of the judgment of Hon. Justice Hellen S. Wasilwa delivered on 8th October 2018 in Nairobi ELRC No. 234 of 2018 pending appeal
  2. 2.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b), 41, 47
  • Appellate Jurisdiction ActSections 3A, 3B
  • Labour Relations Actnot specified (referred to as Labour Relation Act of 2007)
  • Civil Procedure RulesOrder 42 rule 6(2)
On appeal from
Employment and Labour Relations Court
Nairobi ELRC No. 234 of 2018
Jurisdiction invoked
Rule 5(2)(b), 41 and 47 of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act (application disposed of by the ELRC in its supervisory capacity over stay of its own decree)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Banking, Insurance & Finance Union (K) v Bank of Baroda (K) Ltd & another [2019] KEELRC 1951 (KLR)", Case Analysis (2019). Nairobi ELRC No. 234 of 2018 (application dated 17th October, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1951/eng@2019-03-07

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