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Court of AppealDismissedCivil Appli. Nai. 292 of 2006 (164/2006 UR)· [2007] KECA 98 (KLR)

John Elloy O. Nyasoro v National Bank of Kenya Limited [2007] KECA 98 (KLR)

Court of Appeal of Kenya
2 March 2007
Philip Kiptoo TunoiP. K. TunoiSBS. E. O. BosireEGE. M. Githinji
502 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to freeze a Shs.14 million bank judgment because a bank can easily repay the money if the appeal later succeeds.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Nakuru (Tunoi, Bosire and Githinji, JJA) on an application under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a High Court decree of 15 June 2006 (Luka Kimaru, J) awarding the National Bank of Kenya Shs.14,104,129/60 plus interest at 21% per annum. The applicant sought to preserve the position pending his appeal in Nakuru Civil Appeal No. 19 of 2006. The court restated the settled principles: the discretion must be exercised judicially, and the applicant must show both that the appeal is arguable and that it will be rendered nugatory unless stay is granted. The court accepted, on a prima facie basis, that the appeal was arguable, the applicant having complained that the principal sum and the interest rate were never pleaded and that the award was unsupported by evidence. However, the second limb failed: apart from a claim of hardship because the bank held his title documents, the applicant gave no reason to doubt that the respondent, being a bank, could refund the decretal amount if the appeal succeeded - a concession his own counsel made. Accordingly the application was dismissed with costs to the respondent. No authorities were cited and the court issued no directions on the appeal itself.

Key legal issues

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01

Whether the appeal was arguable

Holding

The court was satisfied on a prima facie basis that the appeal was arguable, given complaints about an unpleaded award and unpleaded interest rate

Reasoning

The applicant contended that the sum of Shs.14,104,129/60 was not pleaded, that the 21% p.a. interest rate was never pleaded, and that the award was unsupported by evidence. On these grounds the court found a prima facie arguable appeal, the first limb of the Rule 5(2)(b) test.

p. 1
02

Whether the appeal would be rendered nugatory without a stay

Holding

The nugatory limb failed because the respondent, being a bank, could refund the decretal amount if the appeal succeeded; counsel conceded this

Reasoning

The applicant alleged hardship as the respondent held his title documents, but offered no basis for doubting the bank's ability to refund. The court treats the respondent's ability to refund as decisive against the nugatory-justice requirement, so the application failed overall.

p. 2

Legal principles established

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  • An applicant for stay of execution under Rule 5(2)(b) must show both that the appeal is arguable and that it will be rendered nugatory unless stay is granted; the discretion must be exercised judicially
  • Where the respondent is capable of refunding the decretal amount if the appeal succeeds, the nugatory-justice limb is not satisfied

Court orders

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  1. 1.Application for stay of execution dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 374 of 1995
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Elloy O. Nyasoro v National Bank of Kenya Limited [2007] KECA 98 (KLR)", Case Analysis (2007). Civil Appli. Nai. 292 of 2006 (164/2006 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/98/eng@2007-03-02

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