Proto Energy Limited v Kenya Petroleum Oil Workers Union (Civil Application E078 of 2024) [2024] KECA 860 (KLR)
The bottom line
#The Court of Appeal refused to halt a union recognition order against Proto Energy, confirming that courts will not stay rulings that can be undone or refunded later.
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 prayers relating to the ruling of 7th July 2023 were properly before the Court given the withdrawal of the Notice of Appeal against that ruling
- 2.Whether the intended appeal against the ruling of 9th February 2024 is arguable
- 3.Whether the intended appeal would be rendered nugatory if stay or injunction is not granted
Key legal issues
#Competence of prayers for stay of the ruling of 7th July 2023
Those prayers were incompetently before the Court because the applicant withdrew its Notice of Appeal against the 7th July 2023 ruling; the Court would only consider the prayers relating to the ruling of 9th February 2024.
The Court clarified that Rule 5(2)(b) jurisdiction is predicated on a filed notice of appeal against the decision sought to be stayed. Although the applicant filed a Notice of Appeal dated 14th July 2023 against the first ruling, it subsequently filed a Notice of Withdrawal dated 24th August 2023 after lodging its review application. Prayers targeting that ruling therefore could not stand.
Arguability of the intended appeal
The intended appeal was arguable because it raised the question whether the ELRC took into account the proper and relevant factors in dismissing the review application.
Applying the settled principles, the Court held that an arguable appeal need not succeed but must not be frivolous, citing Stanley Kangethe Kinyanjui v Tony Ketter and Nicholas Muriuki Kangangi v Attorney General. The draft memorandum of appeal raised at least one arguable point regarding whether the ELRC considered proper and relevant factors in dismissing the review, which sufficed.
Whether the intended appeal would be rendered nugatory
The applicant failed the second limb; the appeal would not be rendered nugatory because remittances are refundable and recognition is reversible, and the 9th February 2024 ruling was a negative order with nothing to stay.
The Court noted that the ruling sought to be stayed merely dismissed the review application, so there were no positive orders capable of stay. As to the injunction, any union dues remitted are refundable and any recognition granted can be revoked under section 54(5) of the Labour Relations Act once a union loses simple majority, so compensability existed.
Legal principles established
#- Exercise of the Court's jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules, 2022 requires that a notice of appeal has been filed against the very decision or action sought to be stayed; prayers relating to a decision against which the notice of appeal was withdrawn are incompetent.
- An applicant under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent stay; whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or capable of compensation by damages.
- A ruling dismissing an application for review is a negative order with nothing capable of stay.
Court orders
#- 1.The application dated 19th February 2024 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Nairobi
- Nairobi ELRC Cause No. E331 of 2022 - Kenya Petroleum Oil Workers Union v Proto Energy Limited
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution or enforcement of the rulings of 7th July 2023 and 9th February 2024
The ruling of 9th February 2024 dismissed the review application and contained no positive orders capable of stay; the prayers relating to the 7th July 2023 ruling were incompetent because the Notice of Appeal against it had been withdrawn
Injunction restraining the respondent from pursuing recognition and demanding deduction of union dues
Any remittances made are refundable and any recognition given is reversible under the applicable law, so the appeal would not be rendered nugatory
Stay of further proceedings in Nairobi ELRC Cause No. E331 of 2022
Failed with the whole application as the applicant did not satisfy the nugatory-justice limb
Costs
The application dated 19th February 2024 is dismissed with costs to the respondent.
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.
Firstly, an applicant has to show that he or she has an arguable appeal. Secondly, an applicant has to demonstrate that unless an order of stay is granted, the appeal or intended appeal would be rendered nugatory.
the exercise of this Court's jurisdiction under Rule 5(2)(b) of the Court of Appeal's Rules of 2022 is predicated on a notice of appeal having been filed against the decision or action sought to be stayed
the ruling of 9th February 2024 dismissed the applicant's application for review, and there were, therefore, no positive orders capable of stay
whether an appeal will be rendered nugatory is dependent on whether or not what is sought to be stayed is reversible and, if not, whether damages will reasonably compensate the aggrieved party
The applicant has in the circumstances failed to satisfy the second limb for grant of stay orders or an injunction, and its application dated 19th February 2024 is accordingly dismissed with costs to the respondent.
Orders accordingly.
Issues in the judgment
#The cases Githunguri, Butt and Trust Bank are introduced as authorities 'cited by the learned counsel', yet the sentence also attributes the restatement to the Court itself; they are recorded as cited by counsel as the text states they were 'cited by the learned counsel'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Proto Energy Limited v Kenya Petroleum Oil Workers Union (Civil Application E078 of 2024) [2024] KECA 860 (KLR)", Case Analysis (2024). Civil Application No. E132 of 2024 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/860/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.