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Court of AppealAllowedCivil Appli No. 271 of 2008 (UR 176/08)· [2008] KECA 49 (KLR)

Barclays Bank of Kenya Limited v Evans Ondusa Onzere [2008] KECA 49 (KLR)

Court of Appeal
21 November 2008
1,276 words in judgment
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The bottom line

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The Court of Appeal halted collection of a KSh 6 million judgment against Barclays Bank until the bank's appeal is decided, because the creditor could not prove he could repay if the appeal succeeded.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (O'Kubasu, Onyango Otieno and Aluoch, JJA) ruled on an application under rule 5(2)(b) of the Court's Rules by Barclays Bank of Kenya Limited seeking a stay of execution of a High Court judgment (Sitati, J., dated 26 September 2008 in HCCC No. 1250 of 2003) awarding the respondent Evans Ondusa Onzere Kshs.6,104,050 in compensation for loss of office, redundancy pay and terminal dues. The bank filed a notice of appeal and sought a stay pending the intended appeal, contending that the claim had substantially been paid and that the decretal sum would be unrecoverable if paid over and the appeal succeeded. The court restated the settled twin principles governing rule 5(2)(b) applications: the intended appeal must be arguable (not frivolous), and the appeal must be rendered nugatory unless a stay is granted, citing Githunguri v Jimba Credit Corporation Ltd (No.2) and Reliance Bank v Norlake Investments. The respondent asserted in a replying affidavit that he owned a house in Ngong valued at over Shs.12 million and land valued at Shs.2.5 million, but the applicant pointed out there were no valuation reports supporting these claims. The court found the intended appeal arguable and the applicant's fear reasonable, and granted the stay of execution of the judgment, decree and consequential orders until the determination of the intended appeal, with costs of the motion to be in the intended appeal. The decision is interlocutory; the High Court judgment itself was not disturbed.

Key legal issues

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01

Test for stay of execution pending intended appeal under rule 5(2)(b)

Holding

The applicant satisfied both twin principles: the intended appeal was arguable, and the fear that the decretal sum would be unrecoverable was reasonable.

Reasoning

The court restated the settled twin criteria for stay under rule 5(2)(b): arguability of the intended appeal and nugatory-ness if the appeal succeeds. On the facts, the respondent held a judgment of about Shs.6 million and his assertions of assets (a house in Ngong and land at Nyangori/Hamisi) were unsupported by valuation reports. The court found the intended appeal arguable and the applicant's fear of being unable to recover the decretal sum reasonable, granting the stay.

p. 3
02

Right of a judgment creditor to the fruits of judgment

Holding

A successful litigant is entitled to the fruits of the judgment, but this may be overridden where execution would render a successful appeal nugatory.

Reasoning

The court acknowledged the respondent's entitlement to the fruits of his judgment, but balanced this against the applicant's legitimate concern that payment of approximately Shs.6 million might be beyond the respondent's reach if the intended appeal succeeded. The respondent's evidence of means was unverified by valuation reports, tipping the discretionary balance in favour of a stay.

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Legal principles established

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  • Under rule 5(2)(b) of the Court of Appeal Rules, an applicant for stay must satisfy the twin principles that the intended appeal is arguable and that, if successful, it will be rendered nugatory unless a stay is granted.
  • The jurisdiction under rule 5(2)(b) is original and discretional.

Court orders

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  1. 1.A stay of execution of the judgment and decree of the superior court dated 26th September, 2008 and all other consequential orders thereto until the determination of the intended appeal
  2. 2.The costs of the motion shall be in the intended appeal
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1250 of 2003
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, "Barclays Bank of Kenya Limited v Evans Ondusa Onzere [2008] KECA 49 (KLR)", Case Analysis (2008). Civil Appli No. 271 of 2008 (UR 176/08). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/49/eng@2008-11-21

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