Rift Valley Railways Workers Union (K) v Kenya Railways Staff Retirement Benefits Scheme & 2 others; Retirement Benefits Authority & 3 others (Interested Parties) [2021] KECA 513 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you cannot seek a stay of a court decision that merely dismisses your case and orders nobody to do anything.
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 under Rule 5(2)(b)
- 2.Whether the appeal would be rendered nugatory in the absence of stay
- 3.Whether a negative/struck-out decision is capable of being stayed
Key legal issues
#Whether a negative order (striking out/dismissal) can be stayed under Rule 5(2)(b)
No. Stay is only available in respect of positive and enforceable orders; where the court below merely dismissed the application without directing any party to do or refrain from doing anything, there is nothing to execute and the motion must fail.
The court applied Western College of Arts and Applied Sciences v. Oranga, holding that execution can only lie against a positive obligation. The ELRC had merely struck out the applicant's application; it ordered no party to do or refrain from anything or to pay any sum, save possibly as to costs. Accordingly there was no enforceable order capable of being preserved by stay, and the substratum-preservation purpose of Rule 5(2)(b) had nothing to attach to.
Whether the intended appeal was arguable and would be rendered nugatory
The court did not engage substantively with arguability because the motion failed on the threshold point that the order sought to be stayed was incapable of execution.
Although the court restated the twin test for Rule 5(2)(b) applications - arguability of the intended appeal and whether it would be rendered nugatory - it disposed of the motion on the single ground that the decision below was negative in nature. The respondents had argued the applicant failed to demonstrate arguability and nugatory-ness; the court found it unnecessary to resolve these given the fatal defect in the stay application.
Legal principles established
#- A negative decision - one that merely dismisses or strikes out an application without directing any party to do or refrain from doing anything - is incapable of being stayed; an order of stay can only issue in respect of a positive and enforceable order.
- Rule 5(2)(b) is a tool of preservation of the substratum of an appeal.
- An applicant for stay under Rule 5(2)(b) need not establish a multiplicity of arguable issues; one arguable issue suffices.
Court orders
#- 1.The application is dismissed on the ground that the order sought to be stayed is negative in nature and incapable of execution
- 2.No order as to costs
- 3.The ruling applies mutatis mutandis to Civil Application No. 174 of 2020
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Case No. 2289 of 2015 (ruling delivered 12th July 2019)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
- Consolidated with
- Civil Application No. 174 of 2020 - Rift Valley Railways Workers Union (K) v Kenya Railways Corporation & 6 Others & 2 Other Interested Parties
Relief refused
#Stay of execution of the ELRC ruling dated 12th July 2019
The decision was negative in nature - it struck out/dismissed the application and imposed no positive obligation capable of being stayed
Costs
No order as to costs
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 decision by the court was negative in nature and the same is incapable of being stayed. There is no positive and enforceable order, which should be the subject matter of this motion to be stayed.
The High Court has not ordered any of the parties to do anything or to refrain from doing anything or to pay any sum. There is nothing arising out of the High Court Judgment for this court in an application for stay to enforce or restrain by injunction.
It is clear to us that Rule 5 (2)(b) is essentially a tool of preservation. It safeguards the substratum of an appeal, if invoked by an intending appellant, in consonance with principles developed by that Court over the years.
The application is on the above ground alone dismissed with no order as costs.
This Ruling shall apply mutatis mutandis to Civil Application No. 174 of 2020 Rift Valley Railways Workers Union (K) v Kenya Railways Corporation & 6 Others & 2 Other Interested Parties.
Issues in the judgment
#The judgment inconsistently describes the court below, referring variously to the High Court and the Employment and Labour Relations Court: 'The applicant is seeking stay of execution of an application that had been struck out. The High Court did not ask any of the parties to do or refrain from doing something.' The decision sought to be stayed was that of the ELRC (M. Onyango, J).
The background describes a ruling by Ndolo, J but does not clarify its relationship to the ruling of M. Onyango, J under challenge, creating some ambiguity about the litigation history.
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.
- John Ngimor & 554 others v Northern Rangelands Trust & 3 others [2021] KEELC 51 (KLR)[2021] KEELC 51 (KLR)18 Nov 2021
Cite this brief
#Cite this brief
Caselaw, "Rift Valley Railways Workers Union (K) v Kenya Railways Staff Retirement Benefits Scheme & 2 others; Retirement Benefits Authority & 3 others (Interested Parties) [2021] KECA 513 (KLR)", Case Analysis (2021). Civil Application No. 149 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/513/eng@2021-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.