Christopher O Kenyariri T/A Kenyariri & Associates Advocates v First Community Bank Limited (now Premier Bank Kenya Limited)
The bottom line
#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
#Executive summary
#Key legal issues
#Scope of powers under rule 5(2)(b) of the Court of Appeal Rules, 2022
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.
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.
Twin principles for stay under rule 5(2)(b)
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.
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.
Complaint that notice of appeal was filed in person rather than by counsel on record
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.
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.
Legal principles established
#- 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
#- 1.Prayer to set aside the High Court judgment and decree issued on 18th March 2024 refused
- 2.Application for stay of proceedings and stay of execution under rule 5(2)(b) declined
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.