Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union Kenya [2014] KECA 109 (KLR)
The bottom line
#Kenya's Court of Appeal paused a Kshs.3.7 million employment award against Co-operative Bank, ruling that a worker's modest salary made recovery practically impossible.
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, if the appeal is successful, it would be rendered nugatory in the absence of a stay of execution of the Industrial Court judgment
Key legal issues
#Whether the intended appeal from the Industrial Court raises arguable questions of law
The Court was satisfied the intended appeal raises questions of law and is not frivolous, finding it arguable whether the dismissal was unlawful and unfair and whether reinstatement was the appropriate remedy.
Applying the settled test that an arguable appeal need only raise a serious question of law or reasonable argument deserving consideration, and that one bona fide arguable issue suffices, the Court identified two arguable points: whether the termination was unlawful and unfair given the employee's written admission of careless performance, and whether reinstatement three years after termination was the most viable remedy under the Employment Act and judicial authorities.
Whether the appeal would be rendered nugatory if the Industrial Court decree is not stayed
The Court was satisfied the appeal would be rendered nugatory, as the applicant would be unable to recover the substantial award of Kshs.3,725,957 from an employee earning about Kshs.81,882 monthly, an averment not controverted.
Relying on Reliance Bank Ltd v Norlake Investments Ltd, the Court held that nugatory-ness must be assessed case by case; long delay and inconvenience in recovering money already paid out is relevant. The uncontroverted affidavit evidence that the decree holder's modest salary would make recovery of the substantial award impracticable, plus the disruption of re-terminating employment if the appeal succeeds, satisfied the second limb of the rule 5(2)(b) test.
Legal principles established
#- An appeal lies from the Industrial Court to the Court of Appeal only on matters of law, and the Court of Appeal will interfere only where the trial court considered matters it ought not to have, failed to consider matters it should have, or was plainly wrong on the evidence as a whole.
- An arguable appeal is not one which must succeed; it is one which raises a serious question of law or a reasonable argument deserving consideration, and a single bona fide arguable issue suffices under rule 5(2)(b).
- What may render the success of an appeal nugatory must be considered within the circumstances of each particular case, and long delay and inconvenience in recovering money already paid out is a relevant consideration.
Court orders
#- 1.That the judgment of the Industrial Court dated 24th April, 2014 be and is hereby stayed until the hearing and determination of the applicant's intended appeal
- 2.That costs of this application shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Industrial Court of Kenya at Nairobi
- I C C No. 2071 of 2012
- Jurisdiction invoked
- Rule 5(2)(b) of the Rules of this Court (Court of Appeal Rules); section 17(2) of the Industrial Court Act, 2011
Relief refused
#Stay of further proceedings in the Industrial Court cause (as distinct from stay of execution)
The Court granted a stay of the judgment and decree until the hearing and determination of the appeal; it did not separately order a stay of the Industrial Court cause itself
Costs
Costs of this application shall abide the outcome of the appeal
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.
We have come to the conclusion that this is a deserving case for exercise of our discretion under rule 5(2) (b) of the Rules of this Court.
We accordingly direct that the judgment of the Industrial Court dated 24th April, 2014 be and is hereby stayed until the hearing and determination of the applicant's intended appeal.
Costs of this application shall abide the outcome of the appeal.
an arguable appeal is not one which must succeed; it is an appeal which raises a serious question of law or a reasonable argument deserving consideration by this Court
to succeed under rule 5(2)(b), an applicant does not have to establish a plethora or multiplicity of arguable issues; even one bona fide arguable issue will suffice
Issues in the judgment
#The judgment states the employee's gross monthly pay as Kshs.81,822.00 but later records counsel's submission referring to a monthly salary of Kshs.81,882/-.
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.
- Kyalo v DT Dobie & Company (Kenya) Limited & 2 others (Cause E507 of 2024) [2025] KEELRC 2702 (KLR)[2025] KEELRC 2702 (KLR)3 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union Kenya [2014] KECA 109 (KLR)", Case Analysis (2014). Civil Application No. NAI 93 of 2014 (UR 75/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/109/eng@2014-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.