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Court of AppealDismissedNot stated in the judgment· [2025] KECA 160 (KLR)

Christopher O Kenyariri T/A Kenyariri & Associates Advocates v First Community Bank Limited (now Premier Bank Kenya Limited)

Court of Appeal of Kenya
7 February 2025
1,792 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a Rule 5(2)(b) application cannot undo a High Court judgment, and stay of execution will be refused if any money lost is recoverable later.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Nairobi (Kiage, Ali-Aroni and Achode, JJA) dated 7th February 2025 on a notice of motion dated 4th April 2024 brought under rule 5(2)(b) of the Court of Appeal Rules, 2022. The applicant, an advocate who lost his suit against a former client in the High Court on 18th March 2024, sought two substantive prayers: setting aside the High Court judgment and decree, and a stay of further proceedings pending an intended appeal. He argued that the respondent had withheld VAT of Kshs.18,983,846 which KRA might recover from him, and that the retainer agreement fell under sections 45(1) and 45(2) of the Advocates Act. The respondent opposed, contending the application was incompetent because the notice of appeal was filed in person rather than by counsel on record, and that setting aside a judgment was beyond the Court's rule 5(2)(b) powers. The Court declined to determine the jurisdictional objection at the interlocutory stage, holding that rule 86 governs such complaints. It held that rule 5(2)(b) does not empower it to set aside a judgment; that is for the bench hearing the substantive appeal. Although the applicant arguably met the low arguability threshold, he failed the second twin principle: taxation sums and any VAT recovered are reversible upon a successful appeal, so the appeal would not be rendered nugatory absent stay. The application was dismissed with costs to the respondent. The High Court decision was not disturbed at this interlocutory stage.

Key legal issues

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01

Scope of powers under rule 5(2)(b) of the Court of Appeal Rules, 2022

Holding

Rule 5(2)(b) empowers the Court only to order stay of execution, injunction or stay of further proceedings; it does not confer power to set aside a superior court's judgment and decree.

Reasoning

The Court read the wording of rule 5(2)(b) and held that the first prayer was outside the rule. Setting aside a judgment and decree amounts to making final orders, a function reserved for the bench dealing with the substantive appeal, not a single-member rule 5(2)(b) application. The prayer therefore had to fail.

p. 3
02

Twin principles for stay under rule 5(2)(b)

Holding

An applicant must demonstrate both an arguable appeal and that the appeal will be rendered nugatory absent stay; failure on either limb disposes of the application.

Reasoning

The Court restated the settled twin principles from Stanley Kangethe Kinyanjui v Tony Ketter and David Morton Silverstein v Atsango Chesoni. Though the applicant arguably passed the low arguability threshold, he failed the nugatory limb because any sums payable on taxation of costs, and any VAT recovered by KRA from him, would be recoverable if the appeal succeeded.

p. 3
03

Complaint that notice of appeal was filed in person rather than by counsel on record

Holding

Such a complaint is premature on a rule 5(2)(b) application and should be dealt with under rule 86 of the Court's Rules.

Reasoning

The respondent argued the notice of appeal filed in person without leave was irregular and ousted jurisdiction. The Court declined to determine the issue at the interlocutory stage, holding that rule 86 stipulates how such complaints should be dealt with, and found the objection misplaced at that point.

p. 3

Legal principles established

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  • An application under rule 5(2)(b) of the Court of Appeal Rules cannot be used to set aside a judgment and decree of the High Court; only the bench hearing the substantive appeal can make such final orders.
  • To succeed on a rule 5(2)(b) application, an applicant must satisfy both twin principles: an arguable appeal and that the appeal will be rendered nugatory absent stay; failure on either limb is fatal.
  • The threshold for arguability is low; a single arguable ground suffices and the ground need not ultimately succeed.
  • Where sums payable under a decree are recoverable (reversible) upon a successful appeal, the nugatory-ness limb will not be satisfied.

Court orders

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  1. 1.Prayer to set aside the High Court judgment and decree issued on 18th March 2024 refused
  2. 2.Application for stay of proceedings and stay of execution under rule 5(2)(b) declined
  3. 3.Costs of the application awarded to the respondent
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Christopher O Kenyariri T/A Kenyariri & Associates Advocates v First Community Bank Limited (now Premier Bank Kenya Limited)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/160/eng@2025-02-07

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