Elijah Kipng'eno Arap Bii v Kenya Commercial Bank Limited [2002] KECA 127 (KLR)
The bottom line
#Kenya's Court of Appeal refused to shield a former bank executive's properties from sale, finding his Kshs. 409 million dismissal claim had no real chance.
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 intended appeal is arguable
- 2.Whether, if the intended appeal succeeds, it would be rendered nugatory unless a stay/injunction is granted
Key legal issues
#Whether the intended appeal met the rule 5(2)(b) threshold of arguability
The intended appeal was frivolous and the application failed on the first principle.
Although the court found the learned Judge had made some conclusive findings on matters yet to be determined, and had overreached himself in stating the applicant would not be entitled to a cent beyond the notice pay, the court nonetheless concluded that, given the employment contract provided for termination by three months' notice or payment in lieu, the applicant's claim for salary and benefits to 2009 rested on a pious hope and the intended appeal was frivolous.
Whether the superior court judge made final findings on an interlocutory application
The judge made some definite and apparently conclusive findings on matters yet to be determined, and overreached himself in stating the applicant would not be entitled to a cent beyond notice pay, but this did not render the appeal arguable.
The court acknowledged that the judge, having correctly directed himself not to pronounce definitively on contested facts, nonetheless went on to make conclusive findings. The court held the judge ought not to have stated the applicant was not entitled to a cent over and above what he had been paid, but found the appeal nonetheless frivolous in the circumstances.
Legal principles established
#- To succeed on a rule 5(2)(b) application an applicant must show the appeal or intended appeal is arguable (not frivolous) and that, if successful, it will be rendered nugatory unless a stay is granted.
- The jurisdiction under rule 5(2)(b) is original and discretionary.
- In an interlocutory application a judge ought not to pronounce definitively on contested facts and issues of law.
Court orders
#- 1.The application is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Injunction restraining the respondent from selling, transferring or disposing of the suit properties and motor vehicle pending the hearing and determination of the intended appeal
The intended appeal was found to be frivolous, failing the first limb of the rule 5(2)(b) test
Costs
The application is dismissed with costs to the 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 jurisdiction of the court under rule 5(2) (b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that the appeal or intended appeal is arguable, or put another way it is not frivolous and secondly, that unless he is granted a stay the appeal or intended appeal if successful will be rendered nugatory.
The applicant must first show he has a prima facie case with the probability of success upon trial. Secondly, he must show that in the event that he is refused an injunction and he were eventually to succeed damages would not adequately compensate him for any loss which he would have suffered.
But from the circumstances of this application, we think that the applicant's intended appeal is frivolous. Consequently, the said application is dismissed with costs to the respondent.
Issues in the judgment
#The special damages figure is stated inconsistently within the judgment: the plaint is quoted as claiming Shs.409,603,135.00 while the narrative pleads Kshs.409,003,135/-
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elijah Kipng'eno Arap Bii v Kenya Commercial Bank Limited [2002] KECA 127 (KLR)", Case Analysis (2002). Civil Application No. Nai. 334 of 2001 (179/01 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/127/eng@2002-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.