Equity Bank (Kenya) Limited v Fitidis Group of Companies Limited & 2 others (Civil Appeal (Application) E419 of 2024) [2025] KECA 165 (KLR)
The bottom line
#Kenya's Court of Appeal refused Equity Bank's bid to freeze enforcement of a Kshs 46 million judgment because the bank came to court with unclean hands.
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 and not frivolous
- 2.Whether, unless stay of execution or maintenance of the status quo is granted, the intended appeal will be rendered nugatory
- 3.Whether the applicant, as a party seeking an equitable remedy, was deserving of the relief sought
Key legal issues
#Test for relief under rule 5(2)(b)
The applicant must satisfy both considerations: an arguable appeal and that the appeal will be rendered nugatory absent relief. Failure on either or both disentitles the applicant.
The Court reaffirmed the settled principles in Stanley Kangethe Kinyanjui v Tony Ketter: the applicant must show the intended appeal is arguable or not frivolous, and that without relief the appeal, if successful, will be rendered nugatory. Citing Jaribu Holdings Ltd v Kenya Commercial Bank Ltd, the Court held both considerations must be satisfied. The applicant failed the nugatory limb and, more decisively, failed on conduct grounds.
Arguability of the intended appeal
The intended appeal raised several arguable points which are not frivolous; it suffices that even one issue deserving consideration is raised, and the Court should not say more lest it prejudge the appeal.
The Court accepted that the intended appeal raised arguable points, including whether a garnishee's property may be attached and liability for the judgment debtor's debts. However, it stressed that arguability alone does not guarantee relief: the points need not succeed at the hearing, and the Court must avoid prejudging the merits of the intended appeal.
Nugatory value and equitable conduct
The applicant failed to demonstrate that the respondents were incapable of repaying the amount, and its conduct - allowing the judgment debtor to continue transacting in the garnished accounts and failing to give truthful statements - amounted to unclean hands barring an equitable remedy.
The Court noted the applicant never suggested Fitidis and Light Steel could not repay the decretal sum, undermining the nugatory claim. The greater concern was the applicant's conduct as a seeker of an equitable remedy: counsel confirmed at the hearing that Civicon had continued transacting in the garnished accounts, and the High Court had found the applicant approached it with unclean hands. Citing Eric Makokha v Lawrence Sagini and David Kamau Gakuru v National Industrial Credit Bank, the Court held equitable relief cannot issue to an undeserving party.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability and the nugatory limbs of the test as summarised in Stanley Kangethe Kinyanjui v Tony Ketter & Others
- Rule 5(2)(b) invokes the equitable jurisdiction of the Court, and a party who seeks an equitable remedy must show themselves worthy of it; unclean hands disentitle the applicant
Court orders
#- 1.Dismissal of the applicant's notice of motion dated 19th June 2024 seeking stay of execution or maintenance of the status quo pending appeal
- 2.Costs of the application awarded (to Civicon and Light Steel as recorded in the reasons)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Machakos
- Garnishee proceedings (ruling dated 27th June 2022)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, on a notice of appeal filed after extension of time granted by a single judge on 17th May 2024
Relief refused
#Order of stay of execution or maintenance of the status quo pending appeal under rule 5(2)(b)
The applicant failed to satisfy both limbs of rule 5(2)(b), having approached the Court with unclean hands and having not shown the respondents incapable of repaying the decretal amount
Costs
Application dismissed with costs to Civicon and Light Steel (as recorded: 'with costs to Civicon and Light Steel')
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.
The applicant has to satisfy the Court that the intended appeal is arguable or that it is not frivolous, and that unless the relief sought is granted, the appeal will be rendered nugatory if it succeeds.
A party who seeks an equitable remedy must show themselves to be worthy of such remedy.
Having failed to satisfy both considerations, there was no basis for granting the order of stay of execution.
The above therefore, are the reasons for dismissal, on 24th September 2024 of the applicant’s notice of motion dated 19th June 2024, with costs to Civicon and Light Steel.
Issues in the judgment
#The costs order in the reasons names 'Civicon and Light Steel', yet the opposing parties before the Court were identified as the 1st respondent (Fitidis) and 2nd respondent (Light Steel), while Civicon is the 3rd respondent/judgment debtor who filed no response described in the judgment; the beneficiaries of the costs order appear inconsistent with the parties who opposed the application.
Chronological inconsistency in the record: the garnishee order nisi of 21st December 2020 is described as having been served with notice for 27th January 2021, yet the judgment also states a 'garnishee decree nisi was made absolute' after the applicant failed to appear, while paragraph 5 records the order being made absolute by a further order of 2nd September 2021; the internal dates do not fully reconcile.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Equity Bank (Kenya) Limited v Fitidis Group of Companies Limited & 2 others (Civil Appeal (Application) E419 of 2024) [2025] KECA 165 (KLR)", Case Analysis (2025). Court of Appeal, Nairobi, Civil Application (stated in judgment as notice of motion dated 19th June 2024 under rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/165/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.