Banking Insurance and Finance Union (Kenya) v National Bank of Kenya Ltd (Cause 846 of 2014) [2025] KEELRC 30 (KLR)
The bottom line
#A Kenyan court stopped a bank from auctioning an employee's home while her appeal over her dismissal was still pending.
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 Court is functus officio and lacks jurisdiction to entertain the applications having delivered judgment on 21st February 2020
- 2.Whether the Applicant has established a prima facie case for injunctive relief under Giella v Cassman Brown and Nguruman Limited v Jan Bonde Nielsen
- 3.Whether irreparable harm would result if the injunction is not granted and where the balance of convenience lies
Key legal issues
#Functus officio and jurisdiction
The Court was not functus officio because the application sought preservation of the grievant's property pending appeal, not a revisit of the substantive judgment.
The Respondent argued that having delivered judgment on 21 February 2020, the Court could not entertain further applications, relying on Telkom Kenya v John Ochanda and John Gilbert Ouma v Kenya Ferry Services. The Applicant distinguished these, maintaining that the application concerned preservation of rights pending appeal rather than reopening decided issues. The Court accepted this and entertained the application, implicitly finding the preservation question distinct from the substantive determination under appeal.
Bad faith in pursuing sale during pendency of appeal
The Respondent's attempt to sell the property while the appeal was pending constituted bad faith.
The Court observed that the Respondent was aware the matter was pending before the Court of Appeal with execution stayed. Proceeding to advertise and auction the grievant's matrimonial home in these circumstances was characterised as an act of bad faith, weighing in favour of interim preservation.
Injunctive relief / stay of sale
Stay of sale of the property was granted because a sale would prejudice the Applicant and render the appeal nugatory.
Applying the Giella principles as framed by the parties, the Court found that sale of the matrimonial home would prejudice the Applicant if the appeal succeeded, and would render the pending appeal nugatory. On this basis the application was found merited and stay of sale was granted pending determination of Civil Appeal No. 205 of 2021.
Legal principles established
#- A party may be granted preservation orders where the act sought to be restrained would render a pending appeal nugatory and cause irreparable prejudice.
Court orders
#- 1.Stay of sale of the Applicant's property Ngong/Ngong/55765 pending determination of Civil Appeal No. 205 of 2021 before the Court of Appeal
- 2.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act, invoked by the parties over matters arising from the employment relationship, including employment-related staff loans (relying on Banking Insurance and Finance Union Kenya v Consolidated Bank of Kenya Limited [2020] KEELRC 1225)
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.
It is for this reason that I find the application is merited and I allow stay of sale of applicant’s land pending determination of the appeal pending before the Court of Appeal.
The respondent is indeed aware that the matter is pending before the Court of Appeal and the respondent’s attempt to sell the applicant’s land when the appeal is pending is indeed an act of bad faith.
Costs in the Cause.
Issues in the judgment
#The suit property's parcel number is inconsistently stated: L.R. Ngong/Ngong/55765 in paragraphs 1, 5, 29 and 35, but Ngong/Ngong/55675 in paragraph 15.
The judgment recites the parties' submissions including the functus officio and non-disclosure arguments, but the closing analysis does not expressly rule on them or on the prima facie case test as framed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking Insurance and Finance Union (Kenya) v National Bank of Kenya Ltd (Cause 846 of 2014) [2025] KEELRC 30 (KLR)", Case Analysis (2025). ELRC Cause No. 846 of 2014 (application dated 18th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/30/eng@2025-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.