Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application No. NAI 34 of 2017· [2017] KECA 352 (KLR)

National Bank of Kenya Limited v Leonard Gethoi Kamweti [2017] KECA 352 (KLR)

Court of Appeal
23 June 2017
1,015 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal paused collection of a Kshs.8 million unfair termination award against National Bank, but only because the bank agreed to deposit the money in a joint account.

What this practically means

#

Executive summary

#
The applicant bank sought stay of execution of a judgment of the Employment and Labour Relations Court at Nairobi (Wasilwa, J.) dated 12th October 2016, awarding the respondent Kshs.8,050,728/= as 12 months' salary for unfair termination. The application was brought under rule 5(2)(b) of the Court of Appeal Rules, under which the court exercises original and discretionary jurisdiction and must be satisfied that the intended appeal is arguable and that it would be rendered nugatory if stay is refused. On arguability, the applicant contended the award amounted to double compensation since the respondent had received over Kshs.16 million on early retirement under the bank's Human Resources Manual, and that a tape recording of a Directors' meeting was wrongly admitted. Citing the settled standard that even one arguable point suffices, the court found the appeal arguable. On nugatory value, the applicant argued the respondent could not refund the fairly high decretal sum if the appeal succeeded, and offered to deposit the sum in a joint interest-earning account. The respondent asserted the bank held title to his unencumbered property worth Kshs.25 million as security, but the court found that claim unproved for want of evidence. Finding both limbs satisfied, the court allowed the application and stayed execution pending appeal, on condition that the applicant deposit the decretal sum in a joint interest-earning account within 14 days, failing which the stay stands discharged, and that the intended appeal be filed within 60 days. Costs of the application were made to abide the outcome of the intended appeal. This ruling binds subordinate courts and tribunals on the rule 5(2)(b) twin tests.

Key legal issues

#
01

Arguability of the intended appeal

Holding

The appeal was arguable, chiefly on the claim that the award of 12 months' salary amounted to double compensation given payments made for early retirement

Reasoning

The court considered the draft memorandum of appeal, which raised the contention that the respondent had already received over Kshs.16 million for early retirement and that admitting a tape recording of a Directors' meeting was wrongful. Applying the settled standard that even one arguable point suffices, the court was satisfied the appeal was arguable without expressing definitive views at that interlocutory stage.

p. 2
02

Nugatory value of the appeal

Holding

The appeal would be rendered nugatory because the decretal sum was high, refundability was doubtful, and the respondent's claimed unencumbered property security was not proved; a joint interest-earning deposit secured both parties

Reasoning

The court weighed the rival submissions. The respondent asserted the applicant held title to unencumbered property valued at Kshs.25 million as security, but produced no evidence. The applicant offered to deposit the decretal sum in a joint interest-earning account. Given the size of the award and the difficulty of recovery if the appeal succeeded, the nugatory limb was satisfied on the applicant's deposit undertaking.

p. 2

Legal principles established

#
  • On a rule 5(2)(b) application the applicant must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if stay is not granted
  • Demonstration of even one arguable point suffices on the arguability limb
  • Whether an appeal will be rendered nugatory is assessed case by case; long delay or inconvenience in recovering money already paid out is a relevant consideration

Court orders

#
  1. 1.Stay of execution of the judgment of Wasilwa, J. dated 12th October 2016 pending hearing and determination of the intended appeal
  2. 2.The applicant shall, within 14 days, deposit the sum of Kshs.8,050,728/= in an interest earning account in the joint names of the applicant and the respondent with any reputable bank of the respondent's choice; in default the stay shall stand discharged
  3. 3.The applicant shall file the intended appeal within 60 days from the date of the ruling
  4. 4.Costs of the application to abide the outcome of the intended appeal

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • AHMED MUSA ISMAEL v KUMBA OLE NTAMORUA & 4 OTHERS
    [2014] eKLR
  • RELIANCE BANK LTD v NORLAKE INVESTMENTS LIMITED
    [2002] 1 E.A. 232
On appeal from
Employment and Labour Relations Court at Nairobi
Cause No. 273 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "National Bank of Kenya Limited v Leonard Gethoi Kamweti [2017] KECA 352 (KLR)", Case Analysis (2017). Civil Application No. NAI 34 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/352/eng@2017-06-23

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