Printing Industries Limited & another v Bank of Baroda Kenya Limited [2014] KECA 281 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a Kshs 52 million bank counterclaim, holding that money lost defending it can be recovered through costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal challenging leave to re-amend a defence and introduce a counterclaim was arguable
The Court entertained considerable doubt that the appeal was arguable because the trial Judge had exercised judicial discretion and no misdirection was demonstrated.
The ruling under challenge was a discretionary decision granting leave to amend pleadings under the Civil Procedure Rules. Following Mbogo v Shah, an appellate court will not disturb such a decision absent demonstration that the judge misdirected himself on some matter and arrived at a wrong decision. The applicants failed to show such a misdirection, so the arguability threshold was not met.
Whether the intended appeal would be rendered nugatory if stay was not granted
The applicants' claim that they would suffer prejudice from defending the counterclaim did not establish nugatory-ness, since any loss upon success could be compensated by an award of costs.
Applying the nugatory principle, the Court asked whether what is sought to be stayed is reversible or compensable by damages. Having to defend a counterclaim before the appeal is determined merely expends resources; costs are an adequate remedy. The applicants already enjoyed injunction orders, and delay in finalising the suit worked to the respondent's detriment rather than theirs.
Legal principles established
#- An appellate court may only interfere with a trial judge's exercise of discretion if it is demonstrated that the discretion was not exercised judicially.
- An applicant under rule 5(2)(b) must satisfy both twin principles: arguability of the appeal and that it would be rendered nugatory absent stay.
- On arguability, a single bona fide arguable ground of appeal suffices.
- The mere expenditure of resources in defending a counterclaim whose amendment is under appeal does not render an intended appeal nugatory, as loss can be compensated by costs.
Court orders
#- 1.Declined to grant stay of further proceedings in Nairobi HCCC No. 335 of 2008 pending hearing and determination of the applicants' intended appeal
- 2.Dismissed the application with costs to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 335 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njogu v Mburu & another (Environment and Land Appeal E060 of 2024) [2025] KEELC 481 (KLR)[2025] KEELC 481 (KLR)11 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Printing Industries Limited & another v Bank of Baroda Kenya Limited [2014] KECA 281 (KLR)", Case Analysis (2014). Civil Application No. NAI. 40 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/281/eng@2014-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.