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Court of AppealAllowedCivil Application No. Nai. 159 of 2016 (UR. 123/2016)

Kenya Tea Growers Association v Kenya Plantation and Agricultural Workers Union [2016] KECA 196 (KLR)

Court of Appeal
7 October 2016
1,805 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused enforcement of a major tea-sector pay award pending appeal, but employers must still pay the agreed 15% raise.

What this practically means

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Executive summary

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This was a motion under section 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b) and 103 of the Court of Appeal Rules seeking stay of execution of a judgment of the Employment and Labour Relations Court at Kericho (M. Mbaru, J.) delivered on 20th June 2016 in ELR Cause No. 1997 of 2014 consolidated with ELR Cause No. 14 of 2014. The judgment had awarded a 15% pay increase for 2014/2015, retirement at 60 years, a paid rest day per week, increases in annual leave travelling allowance, and fixed medical, sick and baggage allowances, and directed review of the CBA. The applicant, an association of tea growers, argued the intended appeal was arguable because the trial court lacked statutory jurisdiction to impose the monetary awards and had not analysed ability to pay, and that compliance would cause a 60% wage bill increase it could not recover, evidenced by a computed loss of over Kshs.578 million for one member alone. The respondent contended the appeal had no chance of success and that the applicant controlled the wage bill, so the appeal could not be rendered nugatory. Applying the settled two-limb test, the Court found both limbs satisfied and granted a stay of execution pending the intended appeal, subject to the parties implementing the 15% increment agreed for 2014, with costs of the motion to abide the appeal. The decision below was not disturbed; the stay preserves the position pending appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable and not frivolous, in particular whether the trial court had statutory jurisdiction to impose the monetary awards and CBA terms
  2. 2.Whether the intended appeal would be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the appeal arguable on jurisdiction: whether the ELR Court exceeded its statutory powers in the awards and whether it should have analysed the sector's capacity to pay.

Reasoning

The applicant argued that although it submitted to the trial court's jurisdiction, statute limited and capped the orders the court could grant. The Court agreed this was arguable because orders made without power would affect the whole judgment, and it was also arguable that the trial court ought to have analysed the effect of salary increments on the tea industry before granting them.

p. 3
02

Whether the intended appeal would be rendered nugatory

Holding

The nugatory limb was satisfied because compliance would involve colossal, potentially unrecoverable payments, evidenced by a computed loss of Kshs.578,598,571 for one member company alone.

Reasoning

The applicant deponed that implementing the judgment would cause a 60% wage bill increase, that it is a price taker at the tea auction unable to pass on the increase, and that sums paid to employees would be irrecoverable. The Court found the computed loss for Williamson Tea alone colossal and potentially unrecoverable, satisfying the second limb.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy two limbs: the appeal or intended appeal must be arguable, and it must be rendered nugatory if stay is not granted; rule 5(2)(b) jurisdiction is original and discretionary.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 20th June 2016 in ELR No. 1997 of 2014 (consolidated with ELR 14 of 2014) granted pending hearing and determination of the intended appeal
  2. 2.Stay granted subject to the parties implementing the 15% increment agreed for the year 2014
  3. 3.Costs of the motion to abide the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Employment and Labour Relations Court at Kericho
ELR Cause No. 1997 of 2014 (consolidated with ELR Cause No. 14 of 2014)
Jurisdiction invoked
Section 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b) and 103 of the Court of Appeal Rules (stay of execution pending intended appeal)
Consolidated with
ELR CAUSE NO. 14 OF 2014

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the event we grant a stay of execution of the judgement pending hearing and determination of the intended appeal subject to the parties implementing the 15% increment agreed for the year 2014.
p. 4Final orders - stay of execution granted
There are two main principles that guide the Court in determining application such as the present one. These are first, that the applicant must demonstrate that the (intended) appeal is arguable, and secondly that the intended appeal would be rendered nugatory should the order of stay sought not be granted.
p. 3Principles for stay of execution pending appeal
The jurisdiction of the court under rule 5(2)(b) is not only original but also discretionary.
p. 3Nature of rule 5(2)(b) jurisdiction
Costs of the motion shall abide the intended appeal.
p. 4Costs

Issues in the judgment

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minor

The judgment states the Williamson Tea computed loss figure inconsistently in two places within the same judgment: Kshs.578,598,571 in the grounds and Kshs.578,597,571 in the Court's own analysis.

minor

The supporting affidavit is stated as sworn on 13th June 2016, which predates the judgment of 20th June 2016 that it annexes and supports, an apparent internal inconsistency in the dates.

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, "Kenya Tea Growers Association v Kenya Plantation and Agricultural Workers Union [2016] KECA 196 (KLR)", Case Analysis (2016). Civil Application No. Nai. 159 of 2016 (UR. 123/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/196/eng@2016-10-07

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