Zeitun Holdings Ltd & 4 others v African Banking Corporation & another (Civil Application E116 of 2021) [2021] KECA 68 (KLR)
The bottom line
#The Court of Appeal refused to halt execution of a Kshs 227 million judgment because the applicants never clearly stated their arguable grounds of appeal.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The applicants failed to specify any arguable grounds in the application, affidavit or draft memorandum of appeal.
The court examined the grounds relied upon, principally the in duplum rule and sections 44 and 44A of the Banking Act, and found that the specific contentions of arguability were nowhere stated in the application, supporting affidavit or annexed draft memorandum. Without specified grounds the court could not ascertain whether the appeal was arguable.
Whether the appeal would be rendered nugatory
The applicants did not demonstrate the suffering they would undergo; the respondent bank's uncontroverted capacity to refund any decretal sum paid meant the nugatory ground failed.
Although the decretal sum of over Kshs. 227 million was colossal, mere size does not establish nugatory effect. The applicants made unsubstantiated claims of devastation. The 1st respondent, a bank of repute, asserted an ability to refund any money paid if the appeal succeeded, and that assertion was not controverted, so the second conjunctive ground also failed.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate two conjunctive grounds: an arguable appeal and that the appeal will be rendered nugatory if stay is not granted.
- The nugatory ground alone, without a demonstrated arguable appeal, cannot justify a stay under Rule 5(2)(b).
- Arguable grounds must be specifically stated in the application and draft memorandum; vague assertions of arguability are insufficient.
Court orders
#- 1.Application under Rule 5(2)(b) disallowed
- 2.Costs of the application to the 1st respondent
- On appeal from
- High Court
- Commercial Case No. 312 of 2018
- 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, "Zeitun Holdings Ltd & 4 others v African Banking Corporation & another (Civil Application E116 of 2021) [2021] KECA 68 (KLR)", Case Analysis (2021). Not stated in judgment (arises from High Court Commercial Case No. 312 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/68/eng@2021-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.