Northern Construction Company Ltd & 3 others v Kcb Bank Kenya Limited
The bottom line
#Kenya's Court of Appeal refused to pause a billion-shilling judgment because the winning bank can easily repay if the appeal later succeeds.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
It was not; the appeal merely attacked findings properly grounded on evidence, with no prima facie error of principle by the High Court judge.
The Court reviewed the draft memorandum of appeal and the impugned ruling. The intended appeal challenged the refusal to set aside default judgment, i.e. the exercise of discretion. Evidence of service by email and WhatsApp was uncontested, and appearance was entered late for some applicants. The Court found no substantial question capable of disturbing the discretion and no obvious error of principle, so the arguability limb failed.
Whether the intended appeal would be rendered nugatory without stay
It would not; the decree is monetary, the respondent demonstrably has the financial capacity to refund, and the applicants offered no security.
For money decrees, the applicant must show the respondent cannot refund. The respondent deponed that it is one of Kenya's largest banks with an asset base exceeding Kshs.1.3 trillion and can refund any sums; that deposition was unrebutted. The applicants also offered no security for due performance of the decree, which further militated against the exercise of the Court's discretion in their favour.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both conjunctive limbs: an arguable appeal and that the appeal will be rendered nugatory absent stay.
- For a money decree, the nugatory limb requires the applicant to show that the respondent would be unable to refund the decretal sum if the appeal succeeds; failure to offer security for due performance weighs against granting stay.
- An appellate court is slow to interfere with the exercise of judicial discretion absent misdirection in law, consideration of irrelevant matters, failure to consider relevant matters, or a plainly wrong conclusion.
Court orders
#- 1.The Notice of Motion dated 17th February 2025 is dismissed
- 2.Costs of the application are awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi High Court Commercial Suit No. E302 of 2023
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Northern Construction Company Ltd & 3 others v Kcb Bank Kenya Limited", Case Analysis (2026). Notice of Motion dated 17th February 2025 (Civil Application under Rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1525/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.