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Court of AppealDismissedCivil Application No. 211 of 2020

Kenya Industrial Estate Limited & another v Matilda Tenge Mwachia [2021] KECA 1012 (KLR)

Court of Appeal
5 February 2021
RNR. NambuyeWKW. KaranjaASAsike-Makhandia
1,324 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause an employment ruling against Kenya Industrial Estate because winning an appeal later wasn't enough to justify a stay now.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nambuye, Karanja and Asike-Makhandia JJ.A) on a notice of motion dated 21st August 2020 brought by Kenya Industrial Estate Limited and its Managing Director under Rules 1(2) and 5(2)(b) of the Court of Appeal Rules, 2010. The applicants sought a stay of execution of the ruling of the Employment and Labour Relations Court at Nairobi (Wasilwa, J.) delivered on 13th August 2020, which found that the respondent's interdiction was procedurally unfair, declared the disciplinary process null and void, directed her continued employment in the interim, and granted the applicants liberty to initiate a fresh disciplinary process. The applicants argued that the ELRC judge had determined the whole claim at an interlocutory stage and that reinstating the respondent would render the appeal nugatory. The Court restated the settled twin principles under Rule 5(2)(b): the applicant must demonstrate an arguable appeal - a single bona fide issue suffices - and that the appeal would be rendered nugatory unless stay is granted, both limbs having to be satisfied. It found the appeal arguable on the question whether the ELRC judge determined the suit at an interim stage. However, it held that the nugatory limb failed because the disciplinary process could be restarted as directed by the ELRC, which necessarily involved restoring the respondent to her position. The application was accordingly dismissed with costs to the respondent on 5th February 2021. This ruling binds subordinate courts and tribunals on the Rule 5(2)(b) threshold, though it does not disturb the ELRC decision, which remains intact pending the intended 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 applicants had an arguable appeal under Rule 5(2)(b)
  2. 2.Whether the intended appeal would be rendered nugatory if stay of execution was not granted

Key legal issues

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01

Whether the appeal was arguable

Holding

The question whether the learned Judge determined the subject matter of the suit at an interlocutory stage was sufficient to engage the Court's mind on appeal.

Reasoning

The Court applied the settled Rule 5(2)(b) test that an arguable appeal need not be one that will necessarily succeed; it is enough that it is not frivolous or idle. Citing Kenya Tea Growers Association, it accepted that a single bona fide issue suffices. It found the applicants' contention that the ELRC judge decided the claim at an interim stage to be a bona fide issue warranting appellate consideration.

p. 2
02

Whether the appeal would be rendered nugatory absent stay

Holding

The nugatory aspect was not demonstrated because the disciplinary process, having been reversed, could be restarted as directed by the ELRC, which necessarily included restoring the respondent to her position.

Reasoning

The Court reasoned that the ELRC, having declared the disciplinary process null and void, had expressly left the applicants at liberty to restart the process in accordance with due process and natural justice. Restarting that process necessarily entailed restoring the respondent to her former position. The applicants therefore could not show that her resumption of duties would render the appeal nugatory.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs; demonstrating only one limb will not suffice.
  • A single bona fide arguable issue suffices to establish an arguable appeal.
  • The nugatory test asks whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.
  • A duly filed notice of appeal confers jurisdiction on the Court of Appeal to entertain a Rule 5(2)(b) application.

Court orders

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  1. 1.The application under Rule 5(2)(b) seeking stay of execution of the ELRC ruling of 13th August 2020 is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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

RN
majority
WK
majority
AS
majority
On appeal from
Employment and Labour Relations Court at Nairobi
ELRC No. 284 of 2020
Jurisdiction invoked
Rules 1(2) and 5(2)(b) of the Court of Appeal Rules, 2010

Relief refused

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Stay of execution of the ruling and orders of the ELRC pending the hearing and determination of the intended appeal

The applicants satisfied the arguability limb but failed to demonstrate that the appeal would be rendered nugatory; both limbs must be satisfied

p. 2

Costs

Application dismissed with costs to the respondent

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.

Both limbs must be satisfied and demonstrating only one limb will not suffice.
p. 2Rule 5(2)(b) twin requirements
Accordingly, and for the foregoing reasons, this application fails and is hereby dismissed with costs to the respondent.
p. 2Final orders - dismissal of the application

Issues in the judgment

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minor

The judgment cites the same authority under two variant names ('Kenya Plantation and Agricultural Workers Union' and 'Kenya Planters & Agricultural Workers Union') in different passages.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Industrial Estate Limited & another v Matilda Tenge Mwachia [2021] KECA 1012 (KLR)", Case Analysis (2021). Civil Application No. 211 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1012/eng@2021-02-05

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