Pest Control Products Board v D Union of National Research Institute Staff of Kenya (unrisk)
The bottom line
#The Court of Appeal refused to pause a ruling requiring an employer to recognise a union, because the employer could undo it all if its appeal later succeeded.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable, meeting the low threshold of being prima facie not frivolous.
The court restated that an arguable appeal is not one that must succeed but one that is prima facie not frivolous and deserving of full argument. Considering the low threshold and having perused the impugned judgment together with the draft grounds of appeal - including alleged failures to determine the recognition threshold, the validity of Form S, and to consider the applicant's evidence - the court found the appeal arguable.
Whether the intended appeal will be rendered nugatory absent a stay
No. The applicant failed to demonstrate nugatory-ness; the consequences of executing the judgment are reversible.
The court distinguished substantial loss from nugatory-ness, holding that in a 5(2)(b) application the test is the latter. The orders of the trial court - recognition of the union, check-off deductions and signing of a recognition agreement - were reversible: on success, the recognition agreement could be nullified and remitted dues reimbursed, and no inability to reimburse was shown.
Legal principles established
#- In a rule 5(2)(b) application, the applicant must satisfy the twin tests of arguability and nugatory-ness; substantial loss is not the applicable test on the nugatory limb.
- An arguable appeal need not be one that will succeed; it is enough that it is not frivolous.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or, if not reversible, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.Dismissal of the notice of motion dated 12th October 2023 seeking stay of execution of the judgment of Ocharo, J. delivered on 27th July 2023 in ELRC Cause No. 812 of 2017
- 2.Costs of the application to the respondent
- On appeal from
- Employment and Labour Relations Court
- Cause No. 812 of 2017
- Jurisdiction invoked
- Inherent appellate jurisdiction to grant stay of execution pending appeal under the Court of Appeal's rule 5(2)(b) jurisdiction (referred to in the judgment as 'a 5(2)(b) application')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pest Control Products Board v D Union of National Research Institute Staff of Kenya (unrisk)", Case Analysis (2024). Not stated in judgment (notice of motion dated 12th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1504/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.