Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application (Motion) dated 31st July 2025, arising from HCCC No. 8 of 2010

Kenya Commercial Bank Limited (Now KCB Bank Limited) v Tanzania National Roads Agency & another (Civil Application E068 of 2025) [2026] KECA 894 (KLR)

Court of Appeal
15 May 2026
1,893 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to pause a multi-billion shilling money judgment against KCB Bank because a refundable money decree alone doesn't justify a stay.

What this practically means

#

Executive summary

#
This was a single-judge-panel-issued Court of Appeal ruling at Mombasa on a Notice of Motion by KCB Bank Kenya Limited dated 31st July 2025, brought under rule 5(2)(b) of the Court of Appeal Rules, 2022, seeking stay of execution of a High Court ruling of 11th July 2025 (G. Mutai, J.) pending an intended appeal. The underlying suit, HCCC No. 8 of 2010, was brought by Tanzania National Roads Agency against KCB and Kundan Singh Construction Limited (In Receivership) over bank guarantees issued for a road construction contract; Olga Sewe, J. found KCB liable on the guarantees and entered a mandatory order for Tshs. 2,746,387,500 with interest. Mutai, J. later fixed the applicable commercial interest rate, referred assessment of quantum to the Deputy Registrar, but declined to allow execution before taxation of costs. Before the Court of Appeal, the applicant argued its appeal was arguable and would be rendered nugatory absent stay, citing irreparable loss and the 1st respondent's foreign governmental status. The Court applied the twin principles for rule 5(2)(b) relief, found the intended appeal arguable, but held the second limb failed: what was sought to be stayed was a money decree, refundability had not been disproved, and no impecuniosity of the 1st respondent was demonstrated. The Motion was dismissed with costs to the 1st respondent. The intended appeal remains pending; the decision below was not disturbed.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant's intended appeal is arguable
  2. 2.Whether the intended appeal, if successful, would be rendered nugatory absent stay of execution

Key legal issues

#
01

Whether the intended appeal is arguable

Holding

The Court found the draft memorandum of appeal raised substantive issues of law and fact, satisfying the first limb of the twin principle.

Reasoning

The Court examined the draft memorandum of appeal against the record and found multiple substantive issues deserving inquiry on appeal. Relying on established authority, it reiterated that even a single bona fide ground suffices for arguability, citing University of Nairobi v Ricatti Business of East Africa. Thus the first limb was satisfied.

p. 4
02

Whether the appeal would be rendered nugatory absent stay

Holding

The Court held it would not, because what is stayed is a money decree and no impecuniosity of the 1st respondent was demonstrated; the applicant failed the second limb.

Reasoning

The Court defined 'nugatory' as worthless, futile or invalid. It observed that the decree is monetary and refundable; the 1st respondent's counsel conceded interest could be recalculated and overpayments refunded. The applicant's vague complaint about 'bureaucracies and policies of government operations' was unsubstantiated, and no impecuniosity of the 1st respondent was alleged. Both limbs of the twin principles being conjunctive, failure of one disposes of the Motion.

p. 4

Legal principles established

#
  • An applicant for stay under rule 5(2)(b) must satisfy both limbs of the twin principles: an arguable appeal and that the appeal would be rendered nugatory absent stay.
  • Even one bona fide ground of appeal is adequate to satisfy the arguability limb of the twin principle.
  • For a money decree, mere allegations that recovery will be bureaucratic and time-consuming, without proof of the decree-holder's inability to refund, do not establish that the appeal would be rendered nugatory.

Court orders

#
  1. 1.Dismissal of the applicant's Notice of Motion seeking stay of execution of the High Court ruling of 11th July 2025 pending the intended appeal
  2. 2.Costs of the Motion awarded to the 1st respondent

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
High Court of Kenya at Mombasa
HCCC No. 8 of 2010 (ruling dated 11th July 2025)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022 (stay of execution pending appeal)

Relief refused

#

Stay of execution of the High Court ruling dated 11th July 2025 pending the intended appeal

The applicant failed to satisfy the second limb of the twin principles: the appeal would not be rendered worthless or futile if stay was not granted, since a money decree is refundable and no impecuniosity of the 1st respondent was demonstrated

p. 4

Costs

The Motion was dismissed with costs to the 1st respondent.

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.

for an applicant to merit stay orders pursuant to rule 5(2) (b) of the Court of Appeal Rules pending appeal, he or she must demonstrate to the satisfaction of the Court that he or she has an arguable appeal; and that the appeal (or intended appeal as the case may be), if successful, would be rendered nugatory absent stay
p. 3Twin principles for stay under rule 5(2)(b)
Crucially ,we have not been told that the 1st respondent is impecunious and incapable of refunding the decretal amount should the appeal succeed.
p. 4Nugatory test - refundability of money decree
In efiect, the applicant has failed to satisfy the conjunctive limbs of the twin principles for grant of stay orders under rule 5(2) (b) of the Rules of this Court. Accordingly, its Motion dated 17th July 2025 fails and is hereby dismissed with costs to the 1st respondent.
p. 4Final orders - dismissal of the Motion

Issues in the judgment

#
minor

The Motion is described as dated 31st July 2025 in the body of the judgment, but the final orders dismiss a 'Motion dated 17th July 2025', an internal date inconsistency.

minor

The delivery date is garbled in the text, reading '15TH DAY MAY OF 2026'.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Commercial Bank Limited (Now KCB Bank Limited) v Tanzania National Roads Agency & another (Civil Application E068 of 2025) [2026] KECA 894 (KLR)", Case Analysis (2026). Civil Application (Motion) dated 31st July 2025, arising from HCCC No. 8 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/894/eng@2026-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.