United Aryan (epz) Limited v Tailors & Textiles Workers Union
The bottom line
#Kenya's Court of Appeal refused to pause a wage judgment against an EPZ employer because it proved the union couldn't repay the money.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
Yes. The grounds raised, including retrospective application of the wage order, breach of a binding Supreme Court precedent, section 28 of the Interpretation and General Provisions Act, and decisions on unpleaded matters, are arguable; one arguable ground is sufficient.
The court applied the settled Rule 5(2)(b) test from Kinyanjui v Ketter, confining itself to whether at least one bona fide arguable ground exists. It found the five grounds raised, notably the alleged failure to follow the Supreme Court's decision on retrospective application of subsidiary legislation and the effect on accrued rights, raised bona fide questions fit for full argument on appeal.
Whether failure to annex a draft memorandum of appeal is fatal
No. The omission is curable where the applicant has sufficiently set out its grievances on the face of the application, the supporting affidavit and submissions.
Following Somak Travels v Aganyo and Abercombie & Kent v Maina, the court held that while annexing a draft memorandum is desirable, its absence is not fatal. On reading the grounds on the application, affidavit and submissions, the court was satisfied the applicant had set out the key grounds for appeal, and rejected the respondent's argument to the contrary.
Whether the appeal would be rendered nugatory if stay is refused
No. The applicant produced no evidence that the respondent is impecunious or unable to repay the amounts should the appeal succeed; a bare claim that the sum is colossal is insufficient.
Balancing the respondent's entitlement to the fruits of judgment against the applicant's apprehension, the court required proof that payment is irreversible or uncompensable. The applicant failed to meet the legal requirement of demonstrating that the respondent lacks the means or capacity to repay the debt, so the second prerequisite of the Rule 5(2)(b) test was not satisfied and the application failed.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the appeal (or intended appeal) is arguable and that it will be rendered nugatory if stay is refused; even one arguable ground suffices for the first limb.
- An arguable appeal need not be one that will succeed; it is one that is not frivolous and ought to be argued fully, and the court must not make definitive findings of fact or law at the interlocutory stage.
- Failure to annex a draft memorandum of appeal to a Rule 5(2)(b) application is not fatal where the grounds are sufficiently set out on the face of the application.
- A bare allegation that the decretal amount is colossal, without evidence that the judgment creditor cannot repay, does not establish that an appeal will be rendered nugatory.
Court orders
#- 1.The applicant's application dated 3rd June 2021 for stay of execution pending appeal is dismissed
- 2.The respondent is awarded the costs of the application
- On appeal from
- Employment and Labour Relations Court, Nairobi
- Cause No. 40 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A & 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "United Aryan (epz) Limited v Tailors & Textiles Workers Union", Case Analysis (2023). Application dated 3rd June 2021 (arising from Nairobi Employment and Labour Relations Court Cause No. 40 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1421/eng@2023-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.