Transnational Bank Limited v Jackson Ngibuini Gikandi t/a Gikandi & Co Advocates & 10 others; NCBA Bank Limited (Interested Party) (Civil Application E061 of 2022) [2023] KECA 463 (KLR)
The bottom line
#The Court of Appeal ordered NCBA Bank to release Kshs 32 million security to Transnational Bank because security deposits automatically become repayable once an appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#Effect of final judgment on interlocutory security-deposit orders
Conditional stay and deposit orders lapse upon delivery of the final judgment; the deposit becomes due and repayable upon fulfilment of the condition, and release follows unless a stay is sought and granted
The order depositing Kshs 32,000,000/= as security was conditional on the outcome of the appeal. The appeal was determined in the applicant's favour on July 29, 2022. Following Eastland Hotel Limited v Wafula Simiyu, the court held that conditional deposits are discharged and become repayable once the condition is fulfilled. The respondents' submissions would only have been relevant to an application for stay, which was not before the court; the mere existence of a further appeal to the Supreme Court did not preserve the lapsed orders.
Correct forum for a consequential application releasing deposited security
Although the ideal course is to file in the matter in which the order was made, a fresh application is not fatal where the order's lifespan was tied to the appeal, because the relief sought is consequential and could have been granted on the court's own motion
The court accepted that the application should ideally have been made in the original proceedings, but held that no prejudice flowed from the fresh filing. The order for deposit was tied to the lifespan of the appeal, so upon determination the release was a consequential order flowing from the judgment. Citing Ndegwa Wachira v Ricarinda Wanjiju Ndanjeru, the court held that procedural rules should facilitate, not fetter, the administration of justice. The joinder defect was also cured when the 2nd to 11th respondents were joined.
Legal principles established
#- Upon the hearing and determination of an appeal, interlocutory orders and conditional deposits made as security pending the appeal lapse automatically with delivery of the final judgment, and a conditional deposit becomes due and repayable upon fulfilment of the condition
- A court may entertain a consequential application for release of security notwithstanding that it is brought in a fresh filing rather than the original file, since rules of procedure are handmaidens of justice and the court could have granted such orders even on its own motion
- Unless a stay of execution of the judgment releasing security is sought and granted, the pendency of an appeal to the Supreme Court does not justify declining to release security deposited pending appeal
Court orders
#- 1.The Interested Party, NCBA Bank Limited, directed to pay the sum of Kshs 32,000,000/= jointly held by the applicant and the 1st respondent in Account No. 534xxxxxxx together with interest accrued thereon to the applicant's Advocate's Account No 100xxxxxxx held at the Interested Party's Bank
- 2.No order as to costs
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. 139 of 2018 consolidated with Civil Appeal No. 138 of 2018
- Jurisdiction invoked
- Rule 1(2) of the Court of Appeal Rules, 2010; sections 3A and 3B of the Appellate Jurisdiction Act; article 159(2)(d) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Onyango v Speaker County Assembly of Migori & 3 others (Cause E088 of 2023) [2025] KEELRC 2829 (KLR)[2025] KEELRC 2829 (KLR)23 Oct 2025
- Mitugo v Mugao (Environment and Land Appeal E010 of 2023) [2024] KEELC 5708 (KLR)[2024] KEELC 5708 (KLR)25 Jul 2024
- Ponangipalli Venkata Ramana Rao & another v Dipit Premchand Chheda & 2 others [2021] KECA 999 (KLR)[2021] KECA 999 (KLR)5 Feb 2021applied
Cite this brief
#Cite this brief
Caselaw, "Transnational Bank Limited v Jackson Ngibuini Gikandi t/a Gikandi & Co Advocates & 10 others; NCBA Bank Limited (Interested Party) (Civil Application E061 of 2022) [2023] KECA 463 (KLR)", Case Analysis (2023). Notice of Motion dated September 21, 2022 arising from Civil Appeal No. 139 of 2018 consolidated with Civil Appeal No. 138 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/463/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.