Absa Bank Kenya Plc v Mwangi (Civil Appeal (Application) E207 of 2024) [2025] KECA 809 (KLR)
The bottom line
#Kenya's Court of Appeal paused collection of an employment award against Absa Bank because the winner couldn't prove he could refund the money if the appeal succeeded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable under the first limb of the rule 5(2)(b) twin principles
- 2.Whether, absent a stay of execution, the intended appeal would be rendered nugatory under the second limb
Key legal issues
#Arguability of the intended appeal
The appeal was arguable; the grounds, including alleged want of jurisdiction over an unpleaded defamation claim, could not be dismissed as frivolous.
The Court applied the settled first limb of the rule 5(2)(b) test, restated in Stanley Kang'ethe Kinyanjui v Tony Ketter, that an arguable appeal is not one that must succeed but one that is not frivolous and ought to be argued fully. The applicant's grounds, including the contention that the trial court lacked jurisdiction over an unpleaded defamation claim, were found bona fide and deserving of the Court's scrutiny, satisfying the first limb.
Nugatory aspect and burden of proving ability to refund
The respondent bore the burden of showing he could refund the decretal amount, and having failed to disclose his resources, the second limb was satisfied.
Relying on NIC Bank Ltd v Aquinas Francis Wasike, the Court held that once the applicant expresses a reasonable fear that the respondent cannot repay the decretal sum, the evidential burden shifts to the respondent, being a matter peculiarly within his knowledge. The respondent merely asserted he could repay the outstanding Ksh. 2,228,953/60 but did not disclose what resources he had, so the nugatory limb was met. The Court also held that the size of the sum is immaterial.
Legal principles established
#- An applicant for stay under rule 5(2)(b) must satisfy both twin principles: an arguable appeal and that the appeal would be rendered nugatory absent stay.
- Even a single bona fide arguable ground of appeal suffices to satisfy the arguability limb.
- Once an applicant expresses a reasonable fear that a respondent cannot repay the decretal sum, the evidential burden shifts to the respondent to show what resources he has.
- Substantial loss does not depend on the amount being colossal; what matters is the decree-holder's ability to repay the decretal amount if the appeal succeeds.
Court orders
#- 1.Execution of the judgment and decree of the ELRC at Mombasa (M. Mbaru, J.) stayed pending hearing and determination of the applicant's appeal
- 2.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Mombasa
- Mombasa ELRC Cause No. E065 of 2023
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Execution of the judgment and decree of the ELRC at Mombasa (M. Mbaru, J.) dated 1st December 2024 be and is hereby stayed pending hearing and determination of the applicant’s appeal
That the costs of the application do abide the outcome of the appeal.
stays or injunctions are not automatic. Rather, they are granted to preserve the integrity of the appellate process so as to render any eventual success a mere pyrrhic victory devoid of substance or succour by reason of intervening loss
Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge…
substantial loss does not have to be a lot of money.
Issues in the judgment
#The Motion seeks stay of a judgment stated as dated 1st October 2024, but the operative order refers to a judgment dated 1st December 2024 - an internal inconsistency in the date of the decree stayed.
The trial court is described as awarding the respondent damages for breach of privacy, yet the applicant's grounds attack an unpleaded defamation claim; the record before the Court was scanty and did not include the trial proceedings or judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Absa Bank Kenya Plc v Mwangi (Civil Appeal (Application) E207 of 2024) [2025] KECA 809 (KLR)", Case Analysis (2025). Civil Application (not stated in judgment; Notice of Motion dated 6th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/809/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.