Mbotaz v NIC Bank Ltd
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable or not frivolous
- 2.Whether, unless stay of execution is granted, the appeal will be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable; a single bona fide ground suffices and the appeal need not ultimately succeed
The court reviewed the grounds - alleged consideration of extraneous matters, failure to find two-thirds payment, non-application of section 20(1) of the Consumer Protection Act, and legitimate expectation - and, looking generally at the grounds, was satisfied the appeal was arguable.
Whether the appeal would be rendered nugatory without stay
It would not; the respondent, a reputable financial institution with nationwide presence, was able to compensate the applicant if the appeal succeeded
The applicant's own deposition that the respondent is a reputable financial institution capable of easily compensating him was uncontested. Damages would therefore adequately compensate, so the second limb of rule 5(2)(b) failed and the application had to be dismissed.
Legal principles established
#- An applicant for stay of execution under rule 5(2)(b) must satisfy both limbs: an arguable appeal and that the appeal will be rendered nugatory absent stay
- An arguable appeal need not be one that will succeed, and a single bona fide ground suffices
- The nugatory-value test is whether what is sought to be stayed is reversible or, if not, whether damages will reasonably compensate the aggrieved party
Court orders
#- 1.The application for stay of execution pending the hearing and determination of the intended appeal is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HC CA No. E012 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)
Relief refused
#Stay of execution of the High Court judgment and decree pending appeal
Applicant failed to demonstrate that the appeal would be rendered nugatory; the respondent is a reputable financial institution capable of compensating the applicant
Costs
Application dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
To be entitled the applicant to an order of stay of execution, it is common ground that he must satisfy us that the intended appeal is arguable, or is not frivolous, and that unless we grant an order of stay of execution, the appeals will be rendered nugatory.
Even one bona fide ground deserving further consideration by the Court will suffice.
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved
Having failed to satisfy the second consideration under rule 5(2) (b) of the Court of Appeal Rules, we find that this application has no merit. The same is hereby dismissed with costs to the respondent. It is so ordered.
Issues in the judgment
#Paragraph 10 confuses the parties: it says the applicant deposed that 'it is a reputable financial institution' (referring to the respondent) and that the averment was 'not contested or challenged by the applicant'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbotaz v NIC Bank Ltd", Case Analysis (2022). Civil Application E018 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1180/eng@2022-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.