Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya (Civil Application 133 of 2015) [2015] KECA 353 (KLR)
The bottom line
#Kenya's Court of Appeal paused a bank employee's court-ordered reinstatement to a sensitive position pending appeal, confirming employers who comply under compulsion don't lose stay rights.
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 and not frivolous
- 2.Whether the appeal, if successful, would be rendered nugatory if a stay of execution is not granted
- 3.Whether an order of reinstatement that has already been complied with under compulsion of the decree is capable of being stayed
Key legal issues
#Arguability of the intended appeal
The draft memorandum raised arguable points of law: whether the bank could summarily dismiss under section 44 of the Employment Act and clause A5 of the Collective Agreement, and whether the judge applied the correct principles under sections 49 and 50 in ordering reinstatement.
Appeals from the Industrial Court lie only on matters of law under section 17(2) of the Industrial Court Act. The court found the questions whether the judge applied correct principles in ordering reinstatement, and whether summary dismissal was justified, to be issues of law. The respondent filed no affidavit explaining why the grounds on the main findings were not arguable, and even one arguable point suffices.
Whether reinstatement already effected in compliance with the decree is capable of being stayed
Yes, where the compliance was compelled by the decree and done to avoid contempt; such compliance does not deprive the court of jurisdiction to stay, nor does it waive the employer's appeal rights.
The applicant reinstated the grievant by letter dated 29th May 2015 in compliance with the judgment and before the due date, having filed a notice of appeal and a stay application. The court held this was reinstatement by compulsion, not a voluntary act, and the grievant had not resumed duty as ATM custodian. Precedent of this court (Co-operative Bank v BIFU, 2014) supported staying reinstatement even after compliance.
Nugatory value of the appeal if reinstatement is not stayed
Reinstatement to the same sensitive ATM custodian position would render a successful appeal nugatory: the grievant would have to be dismissed again, disrupting operations and possibly exposing the bank to unrecoverable financial loss.
The grievant held a position of trust as ATM co-custodian; a loss of Kshs. 531,000 had occurred and been refunded by the co-custodian who was dismissed. The judge reinstated him to the same position at a different branch. If the appeal succeeded, dismissal would already have been effected, and recovery of any losses from the grievant would be difficult.
Reinstatement as a statutory remedy to be granted only in exceptional circumstances (dissent)
Mwilu, JA, dissenting, noted that reinstatement under section 49(3) and 50 of the Employment Act and section 12(3)(vii) of the ELRC Act is a statutory remedy granted in exceptional circumstances, and found the applicant's apprehension of disruption unsupported by evidence.
The applicant alleged disruption and loss of trust but the grievant had not reported for duty, so disruption could not be assessed; the applicant failed to discharge the evidentiary burden under section 112 of the Evidence Act on a balance of probabilities. The bank was a large institution capable of redeployment with adequate checks and balances, and reinstatement was no immunity against future discipline.
Legal principles established
#- An employer who reinstates an employee in compliance with a decree to obviate contempt proceedings, where the reinstatement timeframe does not allow a stay application, does not waive the right to seek a stay of execution or to appeal
- Whether an appeal would be rendered nugatory if successful depends on the peculiar circumstances of each case
- Where reinstatement to a sensitive position of trust is in issue and the appeal is arguable, reinstatement pending appeal may render a successful appeal nugatory because the employee would have to be dismissed again, disrupting the employer's operations and risking unrecoverable loss
- Under Mwilu, JA's dissent, a stay of reinstatement already effected should be considered against enumerated factors including whether reinstatement has been effected, whether the parties are public bodies, redeployability, intensity of interaction, demonstrated obstacles, and the employee's willingness to be reinstated (dissenting position, not the binding majority)
Court orders
#- 1.Execution of that part of the judgment of the Employment and Labour Relations Court ordering the reinstatement of the grievant is stayed pending appeal
- 2.Costs of the application shall be costs in the appeal
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the leading ruling. Found the intended appeal arguable on points of law (summary dismissal under s.44 Employment Act and the CBA; reinstatement under s.49) and held that reinstatement of the grievant to the same sensitive ATM custodian position would render the appeal nugatory if successful. Held that reinstatement effected under compulsion of the decree to avoid contempt does not waive the employer's right to seek stay. Would allow the application.
For the above reasons, I would allow the application and grant a stay of the order of reinstatement of the grievant pending appeal.p. 5
Wrote the judgment
Agreed fully with Githinji, JA. Added a survey of the positive/negative order doctrine and of the court's approach where an employer reinstates in compliance with a decree, noting the balance of convenience and the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act.
I have had the benefit of reading in draft the Ruling of my brother Githinji, JA and I fully agree with reasoning and findings reached by the learned judge.p. 5
Wrote the judgment
Dissented on the reinstatement limb. Found the appeal arguable and would have preserved the monetary decree by deposit, but held the applicant's claim of disruption to be a mere apprehension that had not discharged the evidentiary burden under section 112 of the Evidence Act, and set out factors for stay where reinstatement has already been effected. Declined to stay the reinstatement.
Speaking for myself, no ground raised by the applicant persuades me that the reinstatement of the grievant in the terms ordered by the lower court should be stayed, with the result that I decline the orders sought.p. 15
- On appeal from
- Employment and Labour Relations Court
- Employment and Labour Relations Cause No. 1982 of 2013
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010; appeals from the Industrial Court lie to the Court of Appeal on matters of law under section 17(2) of the Industrial Court Act, 2011
Relief refused
#Stay of execution of the monetary decree and stay of proceedings in ELRC Cause No. 1982 of 2013
The trial court had already granted those prayers on condition of deposit of the decretal sum, so it was unnecessary to consider them afresh
Costs
Costs of the application shall be costs in 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.
The application is allowed. The execution of that part of the judgment of the Employment and Labour Relations court ordering the reinstatement of the grievant is stayed pending appeal. Costs of the application shall be costs in the appeal.
the employer does not thereby waive his right to seek a stay of execution of the decree or to appeal to this court or deprive the Court jurisdiction to grant a stay. If it were otherwise the employer would be denied his undoubted legal right to mount an effectual appeal.
I am satisfied that in the peculiar circumstances of this case, reinstatement to the same position would render the appeal, if successful, nugatory.
Whether or not an appeal would be rendered nugatory, if successful, would ultimately depend on the peculiar circumstances of each case
Speaking for myself, no ground raised by the applicant persuades me that the reinstatement of the grievant in the terms ordered by the lower court should be stayed, with the result that I decline the orders sought.
Issues in the judgment
#The majority ruling by Githinji and Kantai, JJA is dated and delivered at Nairobi on 2nd October 2015, while the dissenting ruling of Mwilu, JA is dated 9th October 2015; the judgment bears two delivery dates.
The assessed decretal sum appears inconsistently as Kshs. 2,376,736 in the majority ruling and Shs. 2,367,736 in the Mwilu ruling.
The dismissal letter is recorded as dated 21st December 2015 in one passage although the surrounding narrative (suspension and show cause letter both dated 21st December 2012) indicates 2012.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (7)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Owour v Kenya Revenue Authority & 4 others (Petition E232 of 2026) [2026] KEELRC 2442 (KLR)[2026] KEELRC 2442 (KLR)31 Aug 2026applied
- Loyor v Lomer (Environment and Land Appeal E004 of 2026) [2026] KEELC 2977 (KLR)[2026] KEELC 2977 (KLR)14 May 2026followed
- Mbogo v Mbogo (Civil Application E054 of 2025) [2026] KECA 319 (KLR)[2026] KECA 319 (KLR)27 Feb 2026
- Samsung Eletronics Limited v Paragon Eletronics Limited (Civil Appeal (Application) E110 of 2025) [2025] KECA 1938 (KLR)[2025] KECA 1938 (KLR)21 Nov 2025followed
- Ririani v Adan & another (Environment and Land Case Civil Suit 189 of 2019) [2025] KEELC 8108 (KLR)[2025] KEELC 8108 (KLR)20 Nov 2025followed
- Wachiuri v Kaisugu Limited (Cause E010 of 2023) [2025] KEELRC 3768 (KLR)[2025] KEELRC 3768 (KLR)11 Nov 2025applied
- Kihoi v Faulu Microfinance Bank Limited (Civil Application E269 of 2025) [2025] KECA 1581 (KLR)[2025] KECA 1581 (KLR)3 Oct 2025followed
Cite this brief
#Cite this brief
Caselaw, "Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya (Civil Application 133 of 2015) [2015] KECA 353 (KLR)", Case Analysis (2015). Civil Application No. NAI 93 of 2014 (as inferred from the ruling; the judgment itself describes an application under Rule 5(2)(b) arising from Employment and Labour Relations Cause No. 1982 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/353/eng@2015-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.