Kibaru & another v Standard Chartered Bank of Kenya Limited & another
The bottom line
#The Court of Appeal refused to halt a completed property sale, ruling that money damages from a reputable bank are enough to protect borrowers.
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 intended appeal is arguable
- 2.Whether, if successful, the appeal would be rendered nugatory unless stay is granted
Key legal issues
#Arguability of the intended appeal
The appeal was not arguable because the loan default was undisputed and the equity of redemption had been extinguished by the completed sale
The Court weighed the judge's findings that the applicants had not serviced the loan, a fact the applicants did not dispute, and that the property had been sold to a third party, extinguishing the equity of redemption. On those facts it expressed the view, without detailed analysis, that no well-founded issue deserving full consideration was shown.
Nugatory-ness / adequacy of damages
Even if arguable, the appeal would not be rendered nugatory because damages from a reputable bank are an adequate remedy
The Court held it trite that the applicants' remedy lay in damages. The 1st respondent is a reputable bank capable of paying any damages ordered should the appeal succeed, so refusal of stay would not render a successful appeal nugatory.
Legal principles established
#- An applicant for stay pending appeal must satisfy the twin tests of an arguable appeal and nugatory-ness if stay is refused
- An arguable appeal need not necessarily succeed; it need only raise at least one well-founded issue deserving full consideration
Court orders
#- 1.Notice of motion dated October 14, 2022 seeking stay of the High Court ruling and decree dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H. C. Comm. Appeal No. E073 of 2022
- Jurisdiction invoked
- Inherent appellate jurisdiction of the Court of Appeal to grant stay pending appeal (the judgment invokes no specific constitutional or statutory provision for its own jurisdiction)
Relief refused
#Stay of the High Court ruling and decree in HCC No. E073 of 2022 pending appeal
Appeal not arguable and, in any event, damages are an adequate remedy against a reputable bank
Costs
Application dismissed with costs to the respondents
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.
An applicant must satisfy the court that the appeal or intended appeal is arguable and that unless the court grants the order(s) sought, the appeal, if successful, shall be rendered nugatory.
an arguable appeal is not one that must necessarily succeed, but one which is shown to have, prima facie, at least one well found issue that deserves full consideration by the court.
For those reasons, we nd no merit in this application and dismiss it with costs to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibaru & another v Standard Chartered Bank of Kenya Limited & another", Case Analysis (2022). Civil Application E370 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1409/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.