Bank of South Sudan v Government of South Sudan & 3 others (Civil Application E194 of 2025) [2026] KECA 823 (KLR)
The bottom line
#Kenya's Court of Appeal let South Sudan's central bank appeal an arbitral award execution, but refused to freeze funds already paid out or pause the High Court case.
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 applicant should be granted leave to appeal against the rulings and orders of 7th August 2023, 24th August 2023 and 20th November 2024
- 2.Whether stay of execution in respect of the two accounts held by the applicant at the 3rd respondent should be granted
- 3.Whether stay of proceedings in the High Court should be granted
Key legal issues
#Test for grant of leave to appeal under the Court's discretion
The applicant was granted leave because its intended appeal - that it is not a department of the 1st respondent and its accounts enjoy immunity - had realistic prospects of success
The Court reviewed the established test: leave is granted where prima facie grounds merit serious judicial consideration; where the order under appeal was discretionary, a stronger case is required. The applicant's contention that it was not a party to the arbitral proceedings and that its accounts are protected by diplomatic immunity raised arguable issues, though the Court could not say it would certainly succeed.
Whether stay of execution of the garnishee order could be granted
Stay was refused as the application had been overtaken by events - the garnishee had already remitted the sums held
The 3rd respondent confirmed that it had released the funds in the two accounts in compliance with the garnishee order absolute, leaving nothing to stay. Garnishee proceedings attach only funds held at the time the order is made; future deposits would be the subject of fresh garnishee proceedings, making a stay as to future credits premature and speculative.
Whether stay of proceedings before the High Court could be granted
Stay of proceedings was refused for want of demonstration of pending proceedings and exceptional circumstances
Beyond the two familiar rule 5(2)(b) conditions (arguability and nugatory effect), an applicant for stay of proceedings must demonstrate exceptional circumstances and identify the pending proceedings and their effect on the appeal. The applicant disclosed neither, and the Court cannot grant orders at large.
Legal principles established
#- Leave to appeal is a judicial discretion; leave will be refused only where the applicant has no realistic prospects of success, and a stronger case is needed where the order appealed from was made in the exercise of judicial discretion
- Garnishee proceedings attach only funds held by the judgment debtor's garnishee at the time the garnishee order is made and granted, and do not extend to future credits
- A stay of proceedings can only be granted where the applicant demonstrates the existence of pending proceedings, their effect on the appeal, and exceptional circumstances beyond the usual rule 5(2)(b) thresholds
Court orders
#- 1.Leave granted to the applicant to appeal to the Court of Appeal against the rulings and orders of 7th August 2023, 24th August 2023 and 20th November 2024 in Nairobi HCCOMMArb No. E070 of 2022
- 2.Application for stay of execution declined
- 3.Application for stay of proceedings in the High Court declined
- 4.No order as to costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Nairobi HCCOMMArb No. E070 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (leave to appeal and stay pending intended appeal)
Relief refused
#Stay of execution in respect of the two accounts held by the applicant with the 3rd respondent
The garnishee order absolute of 20th November 2024 had been fully complied with; the application was overtaken by events, and any future deposits would only be subject of fresh garnishee proceedings
Stay of proceedings in the High Court
The applicant did not disclose pending proceedings or demonstrate exceptional circumstances warranting a stay of proceedings
Costs
No order as to costs - each party to bear its own costs of the application.
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 Court will only refuse leave if satisfied that the applicant has no realistic prospects of succeeding on the appeal.
In the premises the application for stay has been overtaken by events.
garnishee proceedings only apply to funds held by the judgement’s creditor as at the time the application for garnishee order is made and granted. It is not contingent on some future credits that the creditor may came across.
This Court cannot grant orders at large.
In the circumstances while we grant leave to the applicant to appeal to this Court against the orders in question, we decline to stay either execution or proceedings in the High Court.
We make no order as to the costs of this application.
Issues in the judgment
#The judgment inconsistently describes the parties: at one point the 2nd respondent is said to be the Government of the Republic of South Sudan, while elsewhere the applicant describes the 1st respondent as the Government against whom the decree was entered, and the 3rd respondent's affidavit says it remitted sums to the 1st respondent marked '(sic)'
Date of the arbitral award is printed as '9th June 32021', an apparent typographical error
Chronological inconsistency: the judgment records that the applicant was joined as an interested party by a ruling allowed on 9th February 2024 but describes the garnishee order absolute as a ruling dated 20th November 2024, while also stating that the trial court on 11th March 2024 dismissed the applicant's application for leave and stay challenging 'the said order'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bank of South Sudan v Government of South Sudan & 3 others (Civil Application E194 of 2025) [2026] KECA 823 (KLR)", Case Analysis (2026). Civil Application (as extracted from Nairobi HCCOMMArb No. E070 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/823/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.