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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has an arguable intended appeal
- 2.Whether, if stay is not granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
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
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.
Whether the intended appeal would be rendered nugatory absent stay
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
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.
Whether stay could issue in respect of the ruling dismissing the application to set aside the ex parte judgment
Stay is not applicable to a dismissal order, which is a negative order leaving the parties in their original position
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.
Legal principles established
#- 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
#- 1.Dismissal of the application dated 3rd October 2024
- 2.Costs of the application to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
Application dismissed with costs to the 1st 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.
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
Negative orders cannot be stayed.
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
In conclusion, we find no merit in the application. We order its dismissal with costs to the 1st respondent.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ndirangu & 7 others v County Government of Nyeri (Civil Application E093 of 2025) [2025] KECA 2145 (KLR)[2025] KECA 2145 (KLR)28 Nov 2025
Cite this brief
#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.