Jyoti Structures Limited v Uba Kenya Bank Limited & 1 other

3. The Bank instituted suit against Jyoti and KETRACO before the High Court in 2018 contending that Jyoti had, in breach of its obligations, defaulted in repayment of the credit facilities and that KETRACO had diverted payments to third parties and failed to remit payments due to Jyoti to the Bank. Having heard the parties, the learned Judge found in favour of the Bank and entered judgment in terms already stated. 4. Aggrieved, Jyoti filed a Notice of Appeal dated 9th October 2024 on which the present application is hinged. 5. We heard the application on 20th May 2025. We have considered the same, the supporting affidavit sworn by A. P. Padmakumar, the Chief Operating Officer of Jyoti; a replying affidavit sworn by Florence Mitey, the Corporation Secretary of KETRACO in support of the application; and a replying affidavit sworn by George Mwangi Wanjeru, a Credit Analyst of the Bank, in opposition to the application. We have also considered the written and oral submissions by learned counsel Mr. Eric Mugo for Jyoti, Mr. E. Mwangi for the Bank and Mr. Muchiri Kahoro for KETRACO. 6. We bear in mind the principles applicable in applications of this nature, including the requirements that an applicant should demonstrate that it has an arguable appeal and that the appeal or intended appeal will be rendered nugatory if the orders sought are declined and the appeal eventually succeeds. See for instance Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR. 7. In entering judgment for Bank, the High Court found that there was a valid domiciliation of Proceeds agreement with Jyoti under which Jyoti undertook that for the duration of the credit facilities, all payments from KETRACO would be routed through the Bank and that Jyoti had assigned to the Bank the payment receivables from KETRACO. The Judge also found that there was breach of the agreement and undertaking. 8. Jyoti challenges those findings. It contends that the intended appeal is arguable. Among the grounds of appeal proposed to be put forth by Jyoti are that the learned Judge failed to appreciate that the domiciliation arrangement was restricted to proceeds from the Isinya-Suswa project and did not extend to proceeds from other contracts; and that the Judge failed to consider that all payments relating thereto had been made. 9. Although counsel for the Bank strenuously contended that the intended appeal is frivolous and an abuse of the process of court, bearing in mind that an arguable appeal is not one that will necessarily succeed, we are persuaded, based on the complaints raised, that the same is arguable. 10. As to whether the intended appeal will be rendered nugatory, the Bank has demonstrated that Jyoti’s principal place of business is outside the jurisdiction of the Court and possesses no known assets within the jurisdiction of the Court; that investigations by the Bank revealed that insolvency proceedings had been commenced against Jyoti in Mumbai, India, and the likelihood of the Bank recovering assets in satisfaction of the decretal amount is uncertain. Jyoti on its part, on the face of those claims by the Bank, did not counter them by demonstrating it has the means. 11. The Bank on the other hand asserts that it is a well-established and stable multinational Pan-African Bank with a healthy balance sheet, which was exhibited, and that it would have no difficulty at all in refunding the decretal amount should the appeal eventually succeed. 12. We are in those circumstances not satisfied that Jyoti has demonstrated that the intended appeal will be rendered nugatory if we decline the orders sought and the appeal ultimately succeeds. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1719/eng@2025-10-24 2

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13. Consequently, the applicant’s application dated 13th December 2024 fails and is hereby dismissed with costs to the 1st respondent. DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF OCTOBER, 2025. S. GATEMBU KAIRU, C.Arb, FCIArb ........................................ JUDGE OF APPEAL MUMBI NGUGI ........................................ JUDGE OF APPEAL P. NYAMWEYA ......................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1719/eng@2025-10-24 3

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