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Court of AppealDismissedCivil Application No. Nai. 334 of 2001 (179/01 UR)· [2002] KECA 127 (KLR)

Elijah Kipng'eno Arap Bii v Kenya Commercial Bank Limited

Court of Appeal
1 March 2002
1,698 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to shield a former bank executive's properties from sale, finding his Kshs. 409 million dismissal claim had no real chance.

What this practically means

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Executive summary

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This was an application by notice of motion under rule 5(2)(b) of the Court of Appeal Rules in which Elijah Kipng'eno Arap Bii, former General Manager of Kenya Commercial Bank, sought an injunction restraining the bank from selling or disposing of specified properties and a motor vehicle pending an intended appeal against a ruling of Ringera, J delivered on 28 June 2001 dismissing his application for a temporary injunction. The underlying suit claimed special damages of over Shs.409 million for wrongful dismissal, a declaration that the dismissal was unlawful, aggravated damages and injunctive relief, the applicant alleging the bank unilaterally raised interest rates on his staff loans from 8% and 3% to 40% and 39% and instructed bailiffs to repossess his vehicle. The Court of Appeal restated the two-limb test under rule 5(2)(b): the applicant must show the intended appeal is arguable and that it would be rendered nugatory if successful unless a stay is granted. While the court accepted that the learned Judge had made some definite and apparently conclusive findings on matters yet to be determined, and had overreached himself in stating the applicant would probably recover nothing beyond his three months' notice pay, it held that, given the employment contract allowed termination on three months' notice or payment in lieu, the applicant's claim for salary and benefits to 2009 rested on a pious hope. The intended appeal was held to be frivolous and the application was dismissed with costs to the respondent on 1 March 2002.

Key legal issues

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01

Whether the intended appeal met the rule 5(2)(b) threshold of arguability

Holding

The intended appeal was frivolous and the application failed on the first principle.

Reasoning

Although the court found the learned Judge had made some conclusive findings on matters yet to be determined, and had overreached himself in stating the applicant would not be entitled to a cent beyond the notice pay, the court nonetheless concluded that, given the employment contract provided for termination by three months' notice or payment in lieu, the applicant's claim for salary and benefits to 2009 rested on a pious hope and the intended appeal was frivolous.

p. 3
02

Whether the superior court judge made final findings on an interlocutory application

Holding

The judge made some definite and apparently conclusive findings on matters yet to be determined, and overreached himself in stating the applicant would not be entitled to a cent beyond notice pay, but this did not render the appeal arguable.

Reasoning

The court acknowledged that the judge, having correctly directed himself not to pronounce definitively on contested facts, nonetheless went on to make conclusive findings. The court held the judge ought not to have stated the applicant was not entitled to a cent over and above what he had been paid, but found the appeal nonetheless frivolous in the circumstances.

p. 3

Legal principles established

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  • To succeed on a rule 5(2)(b) application an applicant must show the appeal or intended appeal is arguable (not frivolous) and that, if successful, it will be rendered nugatory unless a stay is granted.
  • The jurisdiction under rule 5(2)(b) is original and discretionary.
  • In an interlocutory application a judge ought not to pronounce definitively on contested facts and issues of law.

Court orders

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  1. 1.The application is dismissed with costs to the respondent
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Elijah Kipng'eno Arap Bii v Kenya Commercial Bank Limited", Case Analysis (2002). Civil Application No. Nai. 334 of 2001 (179/01 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/127/eng@2002-03-01

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