Stanbic Bank Kenya Limited v Bank of South Sudan & another (Civil Application E592 of 2024) [2025] KECA 495 (KLR)
The bottom line
#The Court of Appeal refused to pause a High Court case, ruling that an arguable appeal alone isn't enough—you must also show the appeal would become worthless without a stay.
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 against the ruling dismissing the recusal application is arguable
- 2.Whether the intended appeal, if successful, would be rendered nugatory absent an order of stay of proceedings
Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable because the applicant raised bona fide allegations touching on the trial judge's exercise of judicial function in the recusal ruling.
The Court reviewed the draft memorandum of appeal and grounds raising wrong application of recusal principles, review of a previous ruling, and misrepresentation of facts by the learned Judge. Applying the settled principle that even a single bona fide issue suffices and that the stay bench need not conclusively determine the grounds, it was satisfied the appeal warrants the Court's appellate jurisdiction.
Whether the intended appeal would be rendered nugatory absent stay
The nugatory limb fails: a judgment rendered by the High Court that is later vacated on appeal would not render the appeal futile, as rehearing before a different judge, costs and damages are available remedies.
The Court weighed the competing rights to a fair hearing and expeditious resolution of disputes, noting the suit had been pending since 2016. It held that a vacated judgment leaves the applicant free to have its case determined by a different judge, that extra costs are compensable, and that staying proceedings is a weapon of last resort, so the appeal would not be worthless if the trial proceeded.
Legal principles established
#- To obtain stay under rule 5(2)(b) an applicant must demonstrate both that the appeal is arguable and that it would be rendered nugatory without stay.
- A single bona fide issue suffices to establish that an appeal is arguable, and the Court on a stay application need not conclusively pronounce on the grounds of appeal.
- An order staying proceedings should be a weapon of last resort.
Court orders
#- 1.The notice of motion dated 28th October 2024 is dismissed
- 2.The costs of the application shall abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Nairobi H.C. COMM. No. 413 of 2018; Air Afrik Aviation Ltd vs. Stanbic Bank Kenya Ltd & Another
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules and section 3 of the Appellate Jurisdiction Act
Relief refused
#Stay of further proceedings in Nairobi H.C. COMM. No. 413 of 2018 pending the intended appeal
The intended appeal is arguable, but the applicant failed to demonstrate that it would be rendered nugatory if stay is denied, since remedies such as an order for rehearing, costs or damages remain available
Costs
The costs of the application shall abide the outcome of the intended appeal.
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 who would succeed upon such an application must persuade the court on two limbs, which are first, that his appeal or intended appeal is arguable, that is to say it is not frivolous.
It is also appreciated that as has been held by this Court in David Morton Silverstein vs. Atsango Chesoni [2002] eKLR and Marriot Africa International Ltd vs. Margaret Nyakinyua Marigu & 4 Others, CA No. Nai. E152 of 2022, an order staying proceedings should be a weapon of last resort.
Consequently, the notice of motion dated 28th October 2024 lacks merit and is hereby dismissed. The costs of the application shall abide the outcome of the intended appeal.
Issues in the judgment
#Typographical/possible drafting error: paragraph 10 refers to 'counsel for the 2nd applicant' where the context and coram indicate counsel for the 2nd respondent (Mr. Ahmednasir Abdullahi).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stanbic Bank Kenya Limited v Bank of South Sudan & another (Civil Application E592 of 2024) [2025] KECA 495 (KLR)", Case Analysis (2025). Civil Application No. Nai. E560 of 2024 (notice of motion dated 28th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/495/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.