Manji Villas Limited v Middle East Bank Kenya Limited (Civil Application E236 of 2024) [2025] KECA 672 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a company's bid to pause insolvency proceedings because it failed to provide the ruling being appealed or evidence of a genuine debt dispute.
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 applicant has an arguable appeal
- 2.Whether the appeal will be rendered nugatory if the proceedings in the insolvency petition before the High Court are not stayed
Key legal issues
#Whether the applicant demonstrated an arguable appeal
The applicant failed to demonstrate an arguable appeal because it did not attach the impugned ruling or order, nor any material showing the debt was disputed or the basis of the dispute
The court noted that the applicant neither attached the impugned ruling nor presented material demonstrating that the Kshs. 197,972,047.92 debt was disputed or the grounds of dispute. Submissions by counsel could not substitute for evidence. Without the crucial documents the court had no way of telling whether the nine grounds of appeal were arguable, so the first limb of the rule 5(2)(b) test failed.
Whether the appeal would be rendered nugatory if the insolvency proceedings are not stayed
The nugatory limb also failed because the respondent produced unchallenged evidence of financial stability showing it could repay any decretal sum if the appeal succeeded
The applicant contended that if a decree issued and the appeal succeeded, the respondent could not refund the decretal sum. The respondent countered with evidence that it continues to operate as a bank with substantial capital. That financial statement was not challenged, so the court found no demonstration of irreparable harm or that the appeal would be rendered ineffective without a stay.
Counsel's contention that grounds of appeal must raise serious questions of law to be arguable
The court rejected that contention, reaffirming that arguability requires only that the appeal is not frivolous
The applicant's counsel argued that grounds of appeal should raise serious questions of law or present a reasonable argument. The court expressly stated this was not correct and restated the Silverstein test: the appeal need only not be frivolous, coupled with the nugatory requirement.
Legal principles established
#- To succeed under rule 5(2)(b) of the Court of Appeal Rules, an applicant must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent a stay
- An arguable appeal need only not be frivolous; it need not be one likely to succeed on grounds raising serious questions of law
- An applicant seeking stay must place before the court the impugned ruling or order and material demonstrating arguability; failing which the court cannot assess whether the grounds of appeal are arguable
Court orders
#- 1.The application dated 17th May 2024 seeking stay of proceedings in Insolvency Petition No. E015 of 2020 is dismissed
- 2.Costs of the application are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Commercial Division
- Insolvency Petition No. E015 of 2020
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of proceedings in Insolvency Petition No. E015 of 2020 before the High Court pending the application and appeal
The applicant failed to demonstrate both limbs required under rule 5(2)(b) — an arguable appeal and that the appeal would be rendered nugatory — having not attached the impugned ruling nor any material demonstrating that the debt is disputed
Costs
Costs of the application awarded to the respondent
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.
Ultimately, we find that the applicant has failed to demonstrate both the necessary limbs; we decline to grant the orders and dismiss the application with costs to the respondent.
An applicant must demonstrate that they have an arguable appeal; and That the intended appeal (or appeal, if already filed) will be rendered nugatory if the execution of the decree or order of proceedings is not stayed.
the applicant must first demonstrate that the appeal or intended appeal is arguable, that is, it is not frivolous, and that the appeal or intended appeal, would in the absence of stay, be rendered nugatory.
There is, therefore, no way to tell whether the grounds of appeal are arguable or not.
Issues in the judgment
#Internal date contradiction: the supporting affidavit dated 17th May 2024 is described as seeking stay of an insolvency petition 'dated 11th August 2024', while the judgment elsewhere states the petition is dated 11th August 2020
Internal date contradiction regarding the impugned ruling: earlier described as delivered on 16th December 2021, later referenced by the respondent as delivered on 16th November 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Manji Villas Limited v Middle East Bank Kenya Limited (Civil Application E236 of 2024) [2025] KECA 672 (KLR)", Case Analysis (2025). Civil Application No. E015 of 2024 (as arising from Civil Appeal No. E083 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/672/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.