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Court of AppealDismissedMotion dated 3rd October 2024 (Court of Appeal, Nairobi)

Kenya Hospitals Association t/a Nairobi Hospital v Kenya Medical Practitioners, Pharmacists and Dentists Union & another (Civil Appeal (Application) E505 of 2024) [2025] KECA 1133 (KLR)

Court of Appeal
20 June 2025
2,367 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to pause an order requiring Nairobi Hospital to negotiate a union recognition agreement, ruling the hospital's appeal would not be futile if it ultimately won.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal, Nairobi, on a motion dated 3rd October 2024 by Kenya Hospitals Association T/A The Nairobi Hospital under Rule 5(2)(b) of the Court of Appeal Rules, 2022, seeking stay of execution of an ELRC judgment of 24th August 2023 and the ruling of 27th June 2024. In the ELRC, the Kenya Medical Practitioners, Pharmacists and Dentists Union obtained judgment at formal proof declaring it the simple majority representative of the hospital's unionisable employees and directing execution of a recognition agreement. Nduma, J. dismissed the hospital's application to set aside the ex parte judgment, varying the order to require negotiation and execution of the agreement, with each party bearing its own costs. Before the Court of Appeal, the hospital argued it had an arguable appeal on whether the recognition threshold was met, whether conciliation had been exhausted, and whether discretion was properly exercised. The Court (Mohammed, Ochieng and Muchelule, JJA) found one arguable point but held the nugatory limb failed: a recognition agreement is terminable or revocable under section 54(5) of the Labour Relations Act, so the appeal could not be rendered nugatory. It further held that stay does not lie for the dismissal of the setting-aside application, that being a negative order. The application was dismissed with costs to the 1st respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has an arguable intended appeal
  2. 2.Whether, if stay is not granted, the intended appeal will be rendered nugatory

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The Court found at least one arguable point - whether the learned Judge properly exercised his jurisdiction in declining to set aside the ex parte judgment - and that a single bona fide arguable point suffices

Reasoning

The Court reiterated that an arguable appeal is not one that must succeed; a serious question of law or reasonable argument deserving consideration suffices. It identified the propriety of the Judge's refusal to set aside the ex parte judgment and whether the proposed defence raised triable issues as arguable points, invoking the principle that a single bona fide arguable point is enough.

p. 4
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

No, because a recognition agreement can be terminated or revoked under section 54(5) of the Labour Relations Act, so no irreversible harm was demonstrated

Reasoning

The Court held that if a recognition agreement is negotiated and signed, either party may apply to the National Labour Board to revoke it, including on demonstration that the union no longer meets the simple majority threshold. Conversely, granting stay would deny union members the right to collective bargaining should the appeal fail. The applicant thus met the arguability limb but failed the nugatory limb.

p. 4
03

Whether stay could issue in respect of the ruling dismissing the application to set aside the ex parte judgment

Holding

Stay is not applicable to a dismissal order, which is a negative order leaving the parties in their original position

Reasoning

The Court reasoned that Rule 5(2)(b) stay is designed to prevent execution of a positive order capable of causing irreparable harm. What was sought to be stayed was not the judgment but the ruling refusing to set aside the ex parte judgment - a dismissal, hence a negative order that cannot be stayed, following the Registered Trustees, Kenya Railways decision.

p. 5

Legal principles established

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  • On a Rule 5(2)(b) application the applicant must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if stay is not granted
  • Negative orders cannot be stayed; stay under Rule 5(2)(b) applies only to positive orders capable of execution
  • An arguable appeal need not be one likely to succeed; a single bona fide arguable point suffices
  • A union's simple majority for recognition purposes is assessed at the time of recruitment and presentation of check-off forms, not later

Court orders

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  1. 1.Dismissal of the application dated 3rd October 2024
  2. 2.Costs of the application to the 1st respondent

The bench

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

majority
majority
majority
On appeal from
Employment and Labour Relations Court at Nairobi
Jurisdiction invoked
Article 50 of the Constitution; sections 3, 3A and 3B of the Appellate Jurisdiction Act; Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of execution and/or enforcement of the ELRC judgment of 24th August 2023 as partly reviewed on 27th June 2024, pending the intended appeal

The intended appeal was arguable but the nugatory test failed; a recognition agreement is terminable or revocable under section 54(5) of the Labour Relations Act, and stay does not lie for a dismissal order which is a negative order

p. 5

Costs

Application dismissed with costs to the 1st 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.

the applicant has to satisfy the Court that it has an arguable appeal, and not a frivolous appeal, and, secondly, that if stay is not granted, the ultimate appeal, if it were to succeed, will be rendered nugatory
p. 4Twin test for stay under Rule 5(2)(b)
Negative orders cannot be stayed.
p. 5Stay not available for negative orders
the simple majority of an employer to recognize a union is considered at the time of the recruitment of members and the check off forms presented to the employer by the union, and not later
p. 2Simple majority assessed at time of recruitment
In conclusion, we find no merit in the application. We order its dismissal with costs to the 1st respondent.
p. 5Final orders - dismissal with costs

Issues in the judgment

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minor

Internal date inconsistency: the judgment is dated 20th June 2025 but the applicant's motion is described as seeking stay of a judgment 'of 24th August 2025', a year after the decision under challenge

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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 Hospitals Association t/a Nairobi Hospital v Kenya Medical Practitioners, Pharmacists and Dentists Union & another (Civil Appeal (Application) E505 of 2024) [2025] KECA 1133 (KLR)", Case Analysis (2025). Motion dated 3rd October 2024 (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1133/eng@2025-06-20

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