Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application E019 of 2025

Dock Workers Union v Director of Occupational Safety and Health Services & 6 others

Court of Appeal
19 December 2025
2,982 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to pause an enforcement case against the Dock Workers Union, ruling there was nothing to stay after its petition was dismissed.

What this practically means

#

Executive summary

#
The Dock Workers Union moved the Court of Appeal at Mombasa under Rule 5(2)(b) of the Court of Appeal Rules seeking a stay of proceedings in Mombasa ELRC Miscellaneous Application No. E016 of 2024, an enforcement application brought by the estate of a deceased employee, pending an intended appeal against the ELRC judgment of Mbaru, J. delivered on 23rd January 2025 dismissing the Union's petition. The Union contended that the Director of Occupational Safety and Health Services acted ultra vires by treating an OSHA report as a WIBA claim and awarding Kshs. 16,482,336, and that the ELRC lacked jurisdiction to enforce the award. The respondents opposed orally, arguing the appeal was not arguable and that security for costs should be given. The Court restated the settled two-limb Rule 5(2)(b) test - arguability and nugatory-ness - both of which must be satisfied, and emphasised that stay of proceedings is a serious, sparingly granted remedy. It then held that the trial court's dismissal of the petition was a negative order: no party was required to do or refrain from doing anything, so there was nothing capable of being stayed, applying Western College v Oranga and Republic v Kenya Wildlife Service. The Court also confined its jurisdiction to the judgment in Petition No. E004 of 2024 rather than the enforcement application itself. The motion was dismissed with costs. This ruling binds subordinate courts and tribunals on the negative-order principle.

Questions the Court framed

#

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the appeal, if successful, would be rendered nugatory if stay of proceedings is not granted
  3. 3.Whether a stay of proceedings can issue against a judgment that dismissed the petition, a negative order

Key legal issues

#
01

Jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules

Holding

Rule 5(2)(b) empowers the Court to grant stay of execution, stay of proceedings or injunction pending appeal, subject to the settled two-limb test.

Reasoning

The Court traced its jurisdiction to Rule 5(2)(b), derived from Article 164(3) of the Constitution, an inherent discretionary power of preservation. Citing the Supreme Court in Teachers Service Commission v KNUT, it restated the twin considerations: whether the intended appeal is arguable, raising at least one bona fide point, and whether success would be rendered nugatory absent stay. Both limbs must be satisfied.

02

Whether stay of proceedings lies against a negative order

Holding

Where the court below merely dismissed the petition, the order is negative and there is nothing to stay; the application under Rule 5(2)(b) fails.

Reasoning

Relying on Western College of Arts and Applied Sciences v EP Oranga and Republic v Kenya Wildlife Service, the Court held that a dismissal creates no obligation on any party to do or refrain from doing anything, so there is no positive enforceable order capable of being stayed. The Court also confined its jurisdiction to the judgment in Petition No. E004 of 2024, not the enforcement application itself.

p. 5

Legal principles established

#
  • Both limbs of the Rule 5(2)(b) test - arguability and nugatory-ness - must be satisfied before the Court exercises its discretion in favour of an applicant.
  • A stay of proceedings is a discretionary, serious remedy to be granted only in exceptional circumstances.
  • There is no positive enforceable order capable of being stayed where the court below merely dismissed the suit.

Court orders

#
  1. 1.The Notice of Motion dated 21st February 2025 is dismissed with costs in the appeal

The bench

#

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

majority
majority
On appeal from
Employment and Labour Relations Court at Mombasa
Petition No. E004 of 2024
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

#

Stay of proceedings in Mombasa ELRC Miscellaneous Application No. E016 of 2024 pending the lodging and determination of the intended appeal

The trial court dismissed the petition, rendering a negative order; there is nothing capable of being stayed, and both Rule 5(2)(b) limbs were not satisfied

p. 6

Costs

The Notice of motion dated 21st February 2025 is without merit and is hereby dismissed with costs in the appeal.

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.

Both limbs must be satisfied before the Court exercises its discretionary jurisdiction in favour of an applicant under Rule 5(2) (b).
Rule 5(2)(b) twin test
In view of the negative order, it becomes apparent that there is nothing that we have been called upon to stay.
p. 6Negative orders not capable of stay
In sum, the Notice of motion dated 21st February 2025 is without merit and is hereby dismissed with costs in the appeal.
p. 6Final orders - dismissal

Issues in the judgment

#
minor

Inconsistent case numbering for the enforcement application throughout the ruling

minor

Applicant's written submissions dated 1st April 2024 predate the motion of 21st February 2025

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Dock Workers Union v Director of Occupational Safety and Health Services & 6 others", Case Analysis (2025). Civil Application E019 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2217/eng@2025-12-19

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