United Airlines Limited & 2 others v Kenya Commercial Bank Limited
The bottom line
#Kenya's Court of Appeal refused to pause execution of a Kshs. 33 million judgment because the applicants never showed the bank couldn't refund the money if their appeal succeeded.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The Court found the intended appeal arguable on the single ground concerning the status and role of the Royal Bank of Canada in the transaction, holding that a single bona fide arguable ground suffices and no further grounds need be sought.
The applicants contended that the learned Judge erred in finding that the Royal Bank of Canada was the 1st applicant's agent without probative evidence, when the record showed it was simply the aircraft supplier's bank. The Court agreed that the status and role of that bank may well be crucial to the appeal. On the settled principle that a single bona fide arguable ground suffices, the Court did not need to look for further grounds.
Whether the intended appeal would be rendered nugatory absent stay
The applicants failed on this limb. Their affidavit only deposed to apprehension that the respondent would execute the decree before the appeal was determined; they never alleged the respondent would be unable to refund the decretal sum or that payment would be onerous on them.
The Court held that a decree-holder's intention to execute is a legal right which cannot, without more, render an appeal nugatory. Allegations of asset attachment, insolvency risk, breach of contractual obligations and loss of livelihood were raised only in written submissions, not in the affidavit, and could not avail the applicants. Following Caneland Ltd v Delphis Bank Ltd, the onus of showing inability to refund lies on the applicant and was not discharged.
Legal principles established
#- To succeed on a rule 5(2)(b) application, an applicant must satisfy the court on both twin principles: that the appeal is arguable and that it will be rendered nugatory absent stay.
- The mere fact that a decree-holder intends to execute a decree, being a right bestowed by law, cannot by itself render an intended appeal nugatory; the applicant must establish other factors showing execution will irreparably negative its rights as the successful party in the appeal.
- Where an applicant alleges that an appeal will be rendered nugatory because the respondent cannot refund the decretal sum, the burden lies on the applicant to lay a basis for that contention, and such factual allegations must be deposed to in a supporting affidavit, not raised for the first time in submissions.
- An applicant need not investigate the respondent's bank accounts; it suffices to swear, upon reasonable grounds, that the respondent will not be in a position to refund the decretal sum.
Court orders
#- 1.Dismissal of the applicants' Notice of Motion dated 21st January 2021 seeking stay of execution pending appeal
- 2.Costs of the application awarded to the respondent
- On appeal from
- High Court of Kenya
- Civil Suit No. 4077 of 1994 (consolidated with HCCC No. 388 of 1998)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules - stay of execution pending intended appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "United Airlines Limited & 2 others v Kenya Commercial Bank Limited", Case Analysis (2025). Civil Application (Notice of Motion dated 21st January 2021) arising from HCCC No. 4077 of 1994 (consolidated with HCCC No. 388 of 1998). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/806/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.