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Court of AppealDismissedCivil Appeal (Application) 244 of 2020· [2022] KECA 1174 (KLR)

Barclays Bank of Kenya Limited v Tarus

Court of Appeal
21 October 2022
AMA. K. MurgorJMJ. MohammedKLK. I. Laibuta
2,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause enforcement of a Kshs.2.4 million unfair dismissal award because the bank had already paid it.

What this practically means

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Executive summary

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The applicant bank moved the Court of Appeal under Rules 5(2)(b), 42, 43 and 47(1) of the Court of Appeal Rules for stay of execution of a judgment of the Employment and Labour Relations Court at Nairobi (Onesmus N. Makau J.) dated June 26, 2020, which declared the respondent's termination unfair and unlawful and awarded her Kshs.2,400,000 as compensation plus a certificate of service, costs and interest. The bank argued its appeal was arguable on the validity of the reasons for dismissal and that it would suffer substantial loss as the respondent could not refund the decretal sum. The respondent countered that she could refund the decretal sum and, critically, stated from the bar that the entire decretal sum had already been paid by the applicant - a fact the applicant did not controvert. Applying the settled twin-limb test from Trust Bank Limited v Investech Bank Limited and Stanley Kangethe Kinyanjui v Tony Ketter, the court found the appeal arguable but held the nugatory limb failed: with the decree already satisfied, any stay would amount to issuing orders in vain. Having failed to establish both limbs, the application was dismissed with costs. The ruling does not disturb the ELRC judgment; the substantive appeal remains pending before a differently constituted bench.

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal was arguable on the question whether there was a valid and fair reason justifying the dismissal, without making definitive findings.

Reasoning

The court applied the settled test that an arguable appeal need not succeed but must not be frivolous, and that a single bona fide arguable ground suffices. It found the validity of the reason for dismissal arguable while avoiding definitive findings to avoid embarrassing the bench hearing the main appeal.

p. 4
02

Whether the appeal would be rendered nugatory absent a stay

Holding

The nugatory limb failed because the applicant had already fully paid the decretal amount, an uncontroverted fact, leaving nothing to stay.

Reasoning

The court weighed the conflicting claims of the parties on their merits. Counsel for the respondent stated from the bar that the decretal sum had been paid and the applicant did not controvert this. Granting a stay over an already-satisfied decree would be issuing orders in vain, so the appeal could not be rendered nugatory.

p. 4

Legal principles established

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  • To succeed under Rule 5(2)(b) an applicant must establish both that the appeal is arguable and that it will be rendered nugatory absent a stay; failure on either limb is fatal.
  • Where the decretal sum has already been paid, a stay of execution would issue in vain and the nugatory limb fails.

Court orders

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  1. 1.The application dated June 28, 2021 for stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43
  • Court of Appeal RulesRule 47(1)

Cases cited (5)

  • Damji Pragji Mandavia vs. Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004 (Unreported)

    Principles for stay of execution under Rule 5(2)(b)

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & Others
    (2013) eKLR

    Definition of an arguable appeal and meaning of nugatory

  • National Media Group Ltd & another vs Chirau Ali Mwakwere
    (2010) eKLR

    Substantial loss and refundability of decretal sum

  • John Ngugi vs. Daytons Valuers Limited
    (2021) eKLR

    Ability of respondent to refund decretal sum

  • Trust Bank Limited and Another v. Investech Bank Limited and 3 Others
    [2000] eKLR

    Delineation of jurisdiction under Rule 5(2)(b): arguability and nugatory twin limbs

On appeal from
Employment and Labour Relations Court at Nairobi
ELRC Case No. 1271 of 2015
Jurisdiction invoked
Rules 5(2)(b), 42, 43 and 47(1) 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Barclays Bank of Kenya Limited v Tarus", Case Analysis (2022). Civil Appeal (Application) 244 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1174/eng@2022-10-21

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