Llyod Masika Limited v Stanbic Bank Limited (Civil Appeal (Application) E200 of 2023) [2024] KECA 72 (KLR)
The bottom line
#The Court of Appeal refused to stop Absa Bank from enforcing a Kshs.44 million arbitral award against valuers Lloyd Masika, holding money judgments can be repaid if an appeal succeeds.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal to entertain a rule 5(2)(b) application
A filed notice of appeal is sufficient to give the Court jurisdiction to consider a rule 5(2)(b) application; the respondent's time-bar objection was not one going to competence of the application before the Court.
Counsel for the respondent argued that the Court lacked jurisdiction to grant stay in the absence of a notice of appeal and that the application was time barred. The Court held the application before it was not about the competence of the application; since the applicant had filed a notice of appeal dated 9th February 2023, that filing was sufficient to confer jurisdiction under rule 5(2)(b) of the Court of Appeal Rules.
Whether the intended appeal is arguable
The appeal is arguable: grounds touching on privity to the charge, exhaustion of remedies under the Land Act, and unjust enrichment are not frivolous.
The applicant argued that the respondent should have pursued the principal borrower since the applicant was not privy to the charge, invoking exhaustion and unjust enrichment. The Court found at least a single non-frivolous issue had been shown, which suffices under the Somak Travels standard; it was unnecessary for the issues to be numerous or to succeed in the end.
Whether the appeal would be rendered nugatory if stay is not granted
No: the applicant never alleged the respondent could not repay the decree, and a monetary decree is compensable in damages, so the second limb of the rule 5(2)(b) test fails.
Applying Stanley Kangethe Kinyanjui v Tonny Keter, the Court asked whether what is sought to be stayed is reversible or whether damages would reasonably compensate the aggrieved party. The applicant nowhere raised the respondent's ability to repay or impecuniosity; it only decried suffering great loss. Since the decree is pecuniary, the applicant can be restored by an award of damages upon a successful appeal.
Legal principles established
#- An applicant under rule 5(2)(b) must have filed a notice of appeal (which gives the Court jurisdiction) and must demonstrate both that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted.
- On arguability, it is enough to show a single bona fide issue for the appeal court; the issues need not be many nor certain to succeed.
- Where impecuniosity of a respondent is alleged as the basis of nugatory-ness, the burden shifts to the respondent to rebut it by evidence; absent such a claim, an applicant who can be compensated in damages fails the nugatory test.
Court orders
#- 1.The application dated 31st March 2023 is dismissed in its entirety
- 2.Costs of the application to the respondent
- On appeal from
- High Court
- Not stated
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (leave to appeal and stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Diniz Holdings Limited (Formel Safari Holdings Limited) v Kenya Power & Lighting Company Limited[2025] KECA 2323 (KLR)19 Dec 2025
Cite this brief
#Cite this brief
Caselaw, "Llyod Masika Limited v Stanbic Bank Limited (Civil Appeal (Application) E200 of 2023) [2024] KECA 72 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/72/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.