[2015] KECA 913 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: NAMBUYE, MUSINGA & KIAGE, JJA)

CIVIL APPLICATION NO. NAI 187 OF 2014 (UR.146/2014)

BETWEEN

KENYA EXPORT FLORICULTURE, HORTICULTURE &

ALLIED WORKERS UNION (KEPHAU).........................APPLICANT

AND

KENYA PLANTATION & AGRICULTURAL

WORKERS UNION ………….............................. 1STRESPONDENT

THE REGISTRAR OF TRADE UNIONS................2NDRESPONDENT

(Application for stay of the orders of the Industrial Court of Kenya

at Nairobi (Mbaru, J) Dated 4thJuly, 2014

in

Industrial Court Appeal No. 7 of 2011)

****************

RULING OF THE COURT

Before us is an application by way of Notice of Motion dated the 17th day of July, 2014 and lodged in the registry of this Court on the 12th day of August, 2014. It is predicated on rule 5 (2) (b) of this Court’s rules. It substantially seeks an order of stay of the orders of the Industrial Court made on 4th July, 2014 pending the hearing and determination of the application in the first instance and pending the hearing and determination of the main appeal in the second instance.

The application is founded on the grounds in the body of the application and the content of the supporting and supplementary affidavit of David Benedict Omulama. It has been opposed by the first Respondent’s replying affidavit deposed by Francis C. Atwolion the 12th day of August, 2010 and lodged herein on the 18th day of August, 2014.

The brief background to this application is that, the applicant, Kenya Export Floriculture Horticulture and Allied Workers Union(Kephau) intended to be a splinter Union from the first Respondent, Kenya Plantation & Agricultural Workers Union,. It moved to seek registration by the Registrar of Trade Unions which the registrar declined vide the letter Ref.MCHRD/TV/R dated the 30th August, 2011, on the grounds that there was already registered a Trade Union sufficiently representative of the whole of or a substantial proportion of the interests in respect of which the applicant sought registration, namely the 1st respondent.

The applicant was aggrieved by that response and moved to the Industrial Court of Kenya at Nairobi and filed Appeal No.7 of 2011. The complaint was against the Registrar of Trade Union and the General Secretary (Kenya Plantation & Agricultural Union) as the first and second respondents respectively. From the citation of the cause, David BenedictOmulama, Andrew Makwaga, Benard Amuchizi Mukaizi, Adriano Mukalo, Whyliffesore, Severio Masika, Zilian Ingutia, Efeli A. Nandi and Juma Amatonyewere cited as the promoters of the applicant.

The merit determination of that appeal resulted in the judgment of the Industrial Court dated the 11th day of February, 2014. In it, Mbaru, J. delivered herself thus:-

“36 This Court finds that the refusal by the respondent to register the appellant is not justified or reasonable in the circumstances of this case as the interest to be addressed by the proposed Kenya Export Floriculture, Horticulture and Allied Workers Union is clearly defined. The membership will be from the Floriculture and Horticulture Sector and thus not interfering with the Plantation and Agricultural sectors represented by the interested party. I therefore enter judgment in favour of the appellant in the following terms.

(a) The decision of the Registrar of Trade Unions (made) on 30th August, 2011 is hereby reversed.

b. The Kenya Export Floriculture, Horticulture and Allied Workers Union is hereby registered as a trade Union.

c. The Registrar of Trade Unions (Respondent) to immediately issue the appellants as in (ii) above with its registration certificate;

d. Each party to bear their own costs.”

On 17th February, 2014 the 2nd respondent vide its letter MC/TU/173/15 addressedDavid Benedict Omulamain his capacity as the secretary General ofKenya Export Floriculture , Horticulture & Allied Workers Unionin the following terms:-

“Pursuant to the Industrial Court’s Lady Justice Monica Mbaru’s) judgment in the above appeal delivered on 11thFebruary, 2014, I wish to inform you that Kenya Export Floriculture, Horticulture and Allied Workers Union (KEPHAU) has been registered as a Trade Union under the Provisions of the Labour Relations Act. Enclosed herewith is the certificate of registration and I should be grateful if you would acknowledge safe receipt of the same.”

On the 25th April, 2014 vide her letter Ref. No. MCITU/173/25 the Registrar of Trade Unions, E.N. Gichecha (Mrs.), informed the Branch Manager Co-Operative Bank Naivasha Branch of the above registration and who the registered officials of the applicant were. It read in part:-

“I wish to inform you that the above trade Union was registered on 17thFebruary, 2014 under certificate No.TU/173. The officials of the Union are as per the attached extract namely Francis J. Wanyange Mwangi (National Chairman, 20. 12. 2009). Peter Wanjala Palang’a (National Vice Chairman 20-12-2009,) David Benedict Omulama (General Secretary- 20-12-2004), Ann Mugane-Deputy General Secretary 20-12-2009), Benard A. Mukaisi (National Treasurer- 01-4-2014), James A. Okeyo- Organizing Secretary -01-4-2014), James Amatonye – 1stNational Trustee- 20-12-2009); Severio Masika- (2ndNational trustee- 20-12-2009), Efeli Nandi- (3rdNational trustee- 20-12-2009).”

The first respondent then moved to industrial Court and obtained an order of stay of the orders of that Court of 11th February, 2014 through the hand of Makau, J. This gave rise to the 2nd Respondent’s letter under the hand of W.H. Lang’at dated 20th February, 2014 addressed to Mr. David Benedict Omalama Secretary Kenya Export Floriculture, Horticulture And Allied Workers Union. It reads in part:-

“Pursuant to the Industrial Court’s orders issued on 19thFebruary, 2014 by Hon. Justice Nzioka wa Makau staying orders of the Court made on 11thFebruary, 2014 until hearing inter partes on 5thMarch, 2014, I wish to inform you that the registration of Kenya Export Floriculture, Horticulture and Allied Workers Union (KEPHAU) is equally stayed until further orders of the Court.”

On the 29th April, 2014 Mbaru, J. delivered a ruling staying the orders under her hand made on the 11th February, 2014.

The first respondent moved the same court vide an application by way of notice of motion dated the 12th day of June, 2014 seeking, inter alia the deregistration of the applicant as a trade Union, cancellation of the certificate of registration of the applicant, an order prohibiting the cabinet secretary, Ministry of Labour and Social Services and Security from gazeting the applicant as a Trade Union and cancellation of the Bank A/C No. 01120119455200 in the name of the applicant and an order prohibiting the promoters of the applicant from carrying out any Trade Union activities.

The application of 12th June, 2014 came up before Mbaru,J . on the 20th day of June, 2014. Upon hearing Mr. Meshack Khisa for the 1st respondent but in the absence of the applicant and the Registrar of the Trade Unions, the following orders were made:-

“(1) That an interim stay be and is hereby issued of all proceedings and directions to the parties by maintaining the status quo/state of affairs as at the date of judgment on 11thFebruary, 2014.

2. That the Registrar of Trade Unions E.N. Gicheha (Mrs) be and is hereby directed to guide the parties herein with regard to (1) above to avoid creating industrial unrest and to personally appear in Court to confirm compliance and the hearing of the application dated 12thJune, 2014.

3. That all the parties to appear in Court for hearing on 4thJuly, 2014 at 9. 00 a.m.

4. That interested party to effect personal service upon the appellant union, the Registrar of Trade Unions and also together with such service to send registered mails to the Appellant and respondent herein.

On the 4th of July, 2014, the same Industrial Court made an order extracted on the 8th day of July, 2014 along the following lines.

“(1) That the parties to maintain status quo as per the court ruling on the day of judgment and all the consequential orders herein pending the appeal.”

The applicant was aggrieved by the orders issued on 4th July, 2014. He filed a notice of appeal dated the 7th day of July, 2014 and lodged in the High Court on the 8th July, 2014. The grievances intended to be raised against those orders are contained in a draft memorandum of Appeal annexed to the application. It is on this same notice of appeal that the applicant has anchored the application under review.

In summary, Mr. Omulama has argued that his intended appeal is arguable on the grounds that the applicant was registered as a Trade Union and since that registration status has not been interfered with it was erroneous on the part of the Industrial Court Judge to attempt to stay that which had already taken place;

Mr. Omulamawent on further to argue that following the registration of the applicant, officials were installed, recruitment drive for members launched which was still ongoing, a bank account to receive members dues was opened and it was receiving the members dues to date; the applicant had already started representing its members in matters affecting the union and the orders sought to be stayed if not stayed would be prejudicial not only to the applicant but also to its members. Some of the prejudice mentioned by the applicant relate to uncertainty amongst the applicant’s members as to whether to continue paying their dues to the applicant or not; the applicant losing out on revenue collection from its members, and inability of the applicant to represent its members in ongoing litigation in matters relating to the mandate of the union. Lastly, that the orders sought to be impugned are unconstitutional in so far as they purport to curtail the applicant’s members freedom both to have and belong to a union of their choice.

In response to the application, Ms Guserwa, learned counsel for the respondent, while reiterating the contents of the replying affidavit and the annextures annexed thereto, urged us to dismiss the same on the grounds that it has not met the threshhold for the grant of a relief under rule 5 (2) (b) of this Court’s Rules; the 1st respondent was aggrieved by the orders made by the Industrial Court on 11th February, 2014 okaying the registration of the applicant as a Trade Union and lodged in this Court, appeal number 141 of 2014; the first respondent then moved the Industrial Court and sought an order to stay the orders granted on 11th February, 2014; the applicants were duly notified of the application for stay in the Industrial Court but they chose not to attend court and ex parte orders were made; the learned trial Judge fixed the matter for mention on 4th July, 2014 for further orders on which day the applicants also never attended court; giving rise to the order of status quo that was made in the said file. It is this same order that the applicant purports to be appealing against.

It is Ms Guserwa’s argument that the applicant’s appeal is a non-starter as there is nothing to appeal against a status quo order. If anything, the applicant should have applied for review and the setting aside of that order. Further, that even if a setting aside of the orders of 4th July, 2014 would have been made, that too would not have assisted the applicant much in view of the presence on the record of the orders made by the same court on the 20th day of June, 2014 suspending the applicant’s registration as a Trade Union against which the applicant has never appealed.

Our jurisdiction under rule 5(2) (b) is original, independent and discretionary (seeGithunguri versus Jumba Credit Corporation Ltd No.(2) [1988] KLR 88). It is a procedural innovation designed to empower this Court to entertain interlocutory applications for preservation of the subject matter of the appeal where one has been filed or is intended (see the case of Equity Bank Ltd versus West Link NBO Civil Application No.78 of 2011 (UR).The jurisdiction under rule 5(2) (b) only arises where the applicant has lodged a notice of appeal. ( see the Safaricom Ltd versus Ocean View Beach Hotel Ltd & 2 others Civil Application No. 327 of 2009 UR)

The conditions to be met before a party can obtain relief under rule 5 (2) (b) have been crystallized by case law. The applicant has to demonstrate that the appeal or intended appeal is arguable on the one hand and on the other hand that if the stay sought is not granted the appeal/intended appeal, as the case may be will be rendered nugatory. See the Githunguri case (supra). By arguable, is not meant an appeal or intended appeal which must succeed but one which raises a bonafide issue worth of consideration by the Court ( see Kenya Tea Growers Association & another versus Kenya PlantersAgricultural Workers Union, Civil Application No. Nai 72 of 2001 (UR). An appeal need not raise a multiplicity or any number of such points. A single arguable point is sufficient to earn an applicant such a relief (Damji Praji Mandavia versus Sara Lee Household & Body Care (K) LtdCivil Application No. Nai 345 of 2005 (UR). It is trite too that demonstration of the existence of even one arguable point will suffice. ( seeKenya Railways corporation versus Edernan Properties Ltd, Civil Appeal No. Nai 176 of 2012 and Ahmed Musa Ismael versus Kimba Ole Ntamorua & 4 otherscivil Appeal No. Nai 256 of 2013).

As for the second limb, an appeal/intended appeal is said to be rendered nugatory where the resulting effect is likely to be irreversible (See the case of Stanley Kangethe Kinyanjui versus Tony Ketter & 5 others, CA No. 31 of 2012wherein this Court stated, inter alia,thus:

“Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.”

Lastly, both limbs must be demonstrated to exist before one can obtain relief under rule 5(2) (b). See Republic versus Kenya Anti Corruption Commission & 2 others [2009] KLR31,andReliance Bank Ltd Versus Norlake Investments Ltd [2012] 1EA227and Githunguri versus Jumba Credit Corporation (supra)

We have applied the above principles to the rival arguments herein. With regard to the first prerequisite, we have considered the grounds that the applicant intends to canvass in the intended appeal as contained in their draft memorandum of appeal and we are satisfied that the applicant’s arguments as to whether the stay orders granted in CA 7/2014 could hold after these were issued after the applicant had already been registered as a Trade Union on the one hand, and secondly these having been issued before the said registration was purportedly cancelled and or reversed is arguable. As we have pointed out above, only one bonafide arguable point suffices. We are therefore satisfied that the applicant has satisfied the first ingredient.

As for the second ingredient, we are in agreement that this has not been satisfied because the reasons advanced by the applicant in support of this ingredient were because the applicant needs to continue collecting dues from its members who have already been brought on board; it will affect the ongoing recruitment for new members and lastly that the members already on board will miss representation by the applicant in both pending litigation as well as any intended litigation affecting the affected members and would be members. To us indeed the registration of the applicant is still intact and has not either been cancelled or otherwise reversed. However, the stay orders in the manner framed as long as these remain in force operate to curtail the applicant’s activities such as continued recruitment of member and receipt of membership dues, be they from past or intended members. These can be put on hold until the determination of the intended appeal and thereafter resulting arrears recovered.

As for representation of the members already on board and intended members, since it is on record that the applicant was simply splinting from the first respondent which move the first respondent is resisting, the affected members have an option either to be represented by the first respondent until the status of the applicant is finally determined in the intended appeal or otherwise seek alternative representation. The second ingredient therefore fails.

In the result, since the applicant has not met the threshhold, we have no alternative but to decline the relief sought. The applicant’s application dated 17th day of July, 2014 and lodged herein on 12th August, 2014 be and is hereby dismissed with costs.

Dated and Delivered at Nairobi this 6thday of March, 2015.

R.N. NAMBUYE

..............................

JUDGE OF APPEAL

D. MUSINGA

.............................

JUDGE OF APPEAL

P. O. KIAGE

............................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR