Equity Bank (kenya) Limited v Fitidis Group of Companies Limited & 2 others
The bottom line
#Kenya's Court of Appeal refused Equity Bank's bid to freeze enforcement of a Kshs 46 million judgment because the bank came to court with unclean hands.
What this practically means
#Executive summary
#Key legal issues
#Test for relief under rule 5(2)(b)
The applicant must satisfy both considerations: an arguable appeal and that the appeal will be rendered nugatory absent relief. Failure on either or both disentitles the applicant.
The Court reaffirmed the settled principles in Stanley Kangethe Kinyanjui v Tony Ketter: the applicant must show the intended appeal is arguable or not frivolous, and that without relief the appeal, if successful, will be rendered nugatory. Citing Jaribu Holdings Ltd v Kenya Commercial Bank Ltd, the Court held both considerations must be satisfied. The applicant failed the nugatory limb and, more decisively, failed on conduct grounds.
Arguability of the intended appeal
The intended appeal raised several arguable points which are not frivolous; it suffices that even one issue deserving consideration is raised, and the Court should not say more lest it prejudge the appeal.
The Court accepted that the intended appeal raised arguable points, including whether a garnishee's property may be attached and liability for the judgment debtor's debts. However, it stressed that arguability alone does not guarantee relief: the points need not succeed at the hearing, and the Court must avoid prejudging the merits of the intended appeal.
Nugatory value and equitable conduct
The applicant failed to demonstrate that the respondents were incapable of repaying the amount, and its conduct - allowing the judgment debtor to continue transacting in the garnished accounts and failing to give truthful statements - amounted to unclean hands barring an equitable remedy.
The Court noted the applicant never suggested Fitidis and Light Steel could not repay the decretal sum, undermining the nugatory claim. The greater concern was the applicant's conduct as a seeker of an equitable remedy: counsel confirmed at the hearing that Civicon had continued transacting in the garnished accounts, and the High Court had found the applicant approached it with unclean hands. Citing Eric Makokha v Lawrence Sagini and David Kamau Gakuru v National Industrial Credit Bank, the Court held equitable relief cannot issue to an undeserving party.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability and the nugatory limbs of the test as summarised in Stanley Kangethe Kinyanjui v Tony Ketter & Others
- Rule 5(2)(b) invokes the equitable jurisdiction of the Court, and a party who seeks an equitable remedy must show themselves worthy of it; unclean hands disentitle the applicant
Court orders
#- 1.Dismissal of the applicant's notice of motion dated 19th June 2024 seeking stay of execution or maintenance of the status quo pending appeal
- 2.Costs of the application awarded (to Civicon and Light Steel as recorded in the reasons)
- On appeal from
- High Court of Kenya at Machakos
- Garnishee proceedings (ruling dated 27th June 2022)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, on a notice of appeal filed after extension of time granted by a single judge on 17th May 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Equity Bank (kenya) Limited v Fitidis Group of Companies Limited & 2 others", Case Analysis (2025). Court of Appeal, Nairobi, Civil Application (stated in judgment as notice of motion dated 19th June 2024 under rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/165/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.