I & M Bank Limited v Kagwimi Kang'ethe & Company Advocates (Civil Application E540 of 2025) [2026] KECA 110 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause execution of a Kshs. 15 million judgment against I & M Bank because the winning respondents could clearly repay if the appeal later 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 (not frivolous) under rule 5(2)(b)
- 2.Whether, unless a stay of execution is granted, the intended appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The intended appeal raised at least one arguable issue concerning a bank's power to freeze accounts not named in court orders and any duty to notify customers.
The Court, without expressing any concluded view on the merits, found that whether a bank acting under contractual terms and fraud investigations may freeze accounts not expressly named in court orders, and whether a duty to notify arises, are issues that are not idle or frivolous and merit interrogation on appeal.
Nugatory limb / money decree
The applicant failed the nugatory limb: the decree was a straightforward money decree and the respondents demonstrated, by un-displaced evidence of bank statements and balances, that they could refund the decretal sum.
The evidential burden lay on the applicant to show that the respondents would be unable to repay if the appeal succeeded. The respondents, including a senior advocate and proprietor of the 1st respondent, exhibited bank statements with substantial credit balances; this evidence was not displaced. Restitution would remain a viable and realistic remedy, so success on appeal would not be rendered hollow.
Protection of a successful litigant's judgment
Rule 5(2)(b) is not an automatic suspension of execution, particularly absent exceptional circumstances; this was an ordinary money decree with no unique subject matter, perishable rights or public interest.
The Court reiterated that a successful litigant should not lightly be deprived of the fruits of a regularly obtained judgment, and saw no basis for departing from settled principles because the case involved no unique subject matter, perishable rights or public interest considerations.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both conjunctive limbs: an arguable appeal and that the appeal would be rendered nugatory; failure on either is fatal.
- The mere fact that a decree is for a large sum of money is not by itself a ground for granting stay; the applicant must show by evidence that the respondent cannot refund the decretal sum.
- Where the respondent is shown to be financially capable, the nugatory limb is not satisfied merely because execution may proceed.
Court orders
#- 1.Dismissal of the Notice of Motion dated 8th September, 2025
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- HCC Suit no. E220 of 2020
- Jurisdiction invoked
- rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of the High Court judgment and decree pending the intended appeal
The applicant satisfied the arguability limb but failed the nugatory limb; the decree is a money decree and the respondents demonstrated financial capacity to refund.
Costs
The Notice of Motion dated 8th September, 2025 is dismissed with costs to the respondents.
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.
the two limbs under rule 5(2)(b) are conjunctive, and failure to satisfy either is fatal to an application
the mere fact that a decree is for a large sum of money is not, by itself, a ground for granting stay
The evidential burden lay on the applicant to demonstrate that the respondents would be unable to repay the decretal sum if the appeal were to succeed
Rule 5(2)(b) is not intended to operate as an automatic suspension of execution pending appeal, particularly where no exceptional circumstances are shown
Accordingly, the Notice of Motion dated 8th September, 2025 is dismissed with costs to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "I & M Bank Limited v Kagwimi Kang'ethe & Company Advocates (Civil Application E540 of 2025) [2026] KECA 110 (KLR)", Case Analysis (2026). Notice of Motion dated 8th September, 2025 (arising from HCC Suit no. E220 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/110/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.