Be Energy Limited v Africa Banking Corporation Limited & 2 others (Environment and Land Miscellaneous Application E039 of 2025) [2025] KEELC 6976 (KLR)

The court reasoned that although the appeal had been struck out for want of jurisdiction, the present application raised a distinct question about funds deposited pursuant to a consent adopted in those struck-out proceedings. Jurisdiction flows from the Constitution or legislation, and the court was not being asked to re-hear the appeal but to give effect to the consequences of the earlier rulings. Status quo orders of the Magistrates' Court bind the parties but do not fetter the court's jurisdiction.

The deposit was a condition for stay of execution pending appeal. Once the appeal was struck out for want of jurisdiction, the stay lapsed automatically and the consent became of no legal effect. Continuing to hold the funds would perpetuate an illegality; the equitable consequence is that the parties revert to their pre-appeal positions, with the depositor entitled to a refund and closure of the account. The 2nd Respondent may still execute the Tribunal decree in the proper forum.

The 1st Respondent bank was contractually bound by the joint mandate and acted lawfully in insisting on joint instructions or a court order before releasing funds. Its role as a neutral stakeholder was acknowledged, and the court's orders now supply the necessary authority for it to release the funds and close the account.