[2016] KEELRC 1623 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT MOMBASA

CAUSE NO. 576 OF 2014

JULIUS ORARE ISAAC………………………………………………….CLAIMANT

VS

BAKE “N” BITE COMPANY LIMITED………………………………….RESPONDENT

RULING

Introduction

The application before the court is the respondent’s Notice of Motion dated 10. 8.2015. It seeks stay of proceedings in this suit pending the hearing and determination of appeal against the ruling of this court dated 27. 4.2015. The motion is supported by the affidavit sworn by Mr. Seif Muhammed Seif on 10. 8.2015. The gist of the application is that the applicant lodged a Notice of Appeal on 30. 4.2015 and sought and obtained certified copies of the typed proceedings and the impugned ruling. That she has an arguable appeal with good prospects of success, which will be rendered nugatory if the stay order is denied. That application for the stay has been made without undue delay. That if stay is denied the applicant will suffer irreparable loss and damage because the issue of union membership will not determined.

The claimant has opposed the Motion by his replying affidavit sworn on 21. 9.2015. In his view the Motion was filed after inordinate delay of 4 months after the delivery of the impugned ruling. That the Motion is brought in abuse of the court process and it is meant to delay trial of the suit.

The Motion was disposed of by way of written submission.

Applicant’s submissions

The issue for determination is whether the application has met the threshold for the grant of stay by the trial court pending appeal before the Court of Appeal. It is trite that the principles for granting stay pending appeal at this level is abit different from the requirements at the Court of Appeal. At this level the threshold for granting appeal is provided for under Order 42 rule 6 (2) of the Civil Procedure Rules (CPRs). The said provision bars the Court from making stay of execution unless:-

The Court is satisfied that substantial loss may result to the applicant unless the order is made,

The application has been made without unreasonable delay and

The applicant has given security for the due performance of the impugned decree or order.

In view of the foresaid provisions of the Civil Procedure Rules, the court is of the considered opinion that it does not need to consider whether or not the applicant has an arguable appeal with probability of success. If it does so, the court would be sitting on appeal over its own decision. What this court is required to ascertain in that respect under sub rule (4) of rule 6 above is satisfy itself that the applicant has at least given a Notice of appeal under the Court of Appeal Rules. Once it is satisfied that an Appeal has been lodged as required under sub rule (4) above, the court is then supposed to consider whether the requirements provided under sub rule (2) above have been proved by the applicant. In this case the court is satisfied that the applicant filed a Notice of appeal in this court on 30. 4.2015 which was within the 14 days period allowed by Rule 75 (2) of the Court of Appeal Rules.

Substantial loss

The applicant has deposed in Paragraph 10 of his supporting affidavit that

“…If the stay of proceedings is not granted then the appeal if successful will be rendered nugatory and the respondentshall suffer substantial loss and damage since the pertinentquestion touching on the claimant being a member of a tradeunion as clearly admitted in his memorandum of claim will nothave been determined.”

In addition her counsel has submitted in paragraph 11 of his written submissions that:-

“The Appellant will be prejudiced and suffer if stay ofproceedings is not granted pending hearing and determinationof this appeal owing to the fact that the pertinent question onwhether the claimant herein was or was not a member of theunion governed by the Collective Bargaining Agreement aspleaded in his pleadings would not have been determined. Insupport of our submission herein we humbly cite the Bake ‘N’Bite Limited vs Rachael Nungare and 16 others (2015) e KLRwhere…..the Appellant (SIC) Judges upheld the appellant’s

Appeal which matter was of similar nature as the present case.”

According to the claimant, the applicant will not suffer any substantial loss if stay of proceedings is denied. That the main question being raised in the appellant’s appeal is whether or not the claimant was a member of a trade union. That such question is a matter of fact to be determined during trial and cannot be raised on appeal before the Court of Appeal which deals with matters of Law only. That the applicant’s right of appeal should not be abused at the expense of the claimant’s right to fair and timely trial. That the facts and issues in this suit are different from the ones in the case of Bake “N” Bite vs Nungarecase cited by the applicant.

The court has considered the Motion, Affidavits, Submission and the pleading in answering the issue of substantial loss herein. There is no doubt that paragraph 1 of the claim appreciates that the employment contract of the claimant was governed by a CBA. The claimant however has denied that he was a member of the union which represents the unionisable employees of the applicant. The applicant has not produced any proof that the claimant was a member of the alleged union. The question that arises is, whether and to what extent does a CBA bind and apply to unionisable staff who are not members of the recognized union.

Section 59(1) (b) of the Labour Relations Act (LRA) provides that a CBA binds all unionisable employees of an employer during the currency of the CBA. In this court’s view, the foregoing provision only entitles and binds all the unionisable workers to the terms and conditions of service negotiated by a Recognized trade union. The reason for the foregoing is that for a union to be recognized, it must have at least a simple majority of the unionisable staff as members. The non-members being the minority are bound by the negotiated terms for the majority because the LRA does not provide for workers to lose employment if they fail to join a union.

However, the said mandatory application of CBAs to non members does not however extent to representation by trade union in dispute resolution. If a non member falls into disputes with the employer he has all the right to access this court for justice without involving the union even if he has paid Agency fees to the union. Consequently the court does not see any substantial loss to be occasioned to the applicant if stay is denied and trial done because it is the lawful thing to do. The issue of membership to a trade union was raised by the applicant and did not file any evidence to support the said allegation. Consequently the court agrees with the claimant’s submission that the facts of this case are distinguishable from those in the Bike “N” Bite vs Nugare case. In the said case, the claimant’s were members of the union and in fact the trade union participated in the suit because the claimant’s were her members.

Unreasonable delay

There is no dispute that the application herein was made 4 months after the impugned ruling. By that time 2 months had lapsed after the certified copies of typed proceedings and ruling had been availed to the applicant. One wonders whether indeed the applicant had filed a record of appeal and why she never sought the stay order before the appellate court. In this courts view, a delay of 4 months before making the application for stay pending appeal is in ordinate delay. No good cause has been shown to justify that delay.

Security

As regards the issue of security for performance, the court is of the view that the circumstances of this suit does not require security to be ordered. It is obvious that if the appeal fails the suit will be heard to its logical conclusion. Consequently even if the stay of proceedings was to be ordered, the court would not order any security.

Disposition

In view of the finding above that no substantial loss will be suffered by the applicant and the fact that the application was brought after an ordinate delay, the Notice of Motion dated 10. 8.2015 is dismissed with costs.

Signed, dated and delivered this 19th February 2016

ONESMUS MAKAU

JUDGE