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Court of AppealDismissedNotice of Motion dated 8th September, 2025 (arising from HCC Suit no. E220 of 2020)

I & M Bank Limited v Kagwimi Kang'ethe & Company Advocates (Civil Application E540 of 2025) [2026] KECA 110 (KLR)

Court of Appeal
30 January 2026
1,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause execution of a Kshs. 15 million judgment against I & M Bank because the winning respondents could clearly repay if the appeal later succeeded.

What this practically means

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Executive summary

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This is a single-judgment decision of a three-judge bench of the Court of Appeal at Nairobi (D. K. Musinga, Joel Ngugi and G. V. Odunga, JJ.A) dismissing a Notice of Motion dated 8th September, 2025 brought by I & M Bank Limited under rule 5(2)(b) of the Court of Appeal Rules, 2022. The bank sought a stay of execution of a High Court judgment (Benjamin Njoroge K., J.) delivered on 7th August, 2025 in HCC Suit no. E220 of 2020, in which the High Court found the bank had unlawfully frozen accounts belonging to the respondents beyond the scope of court orders and investigations limited to an escrow account, without notification, and awarded general damages of Kshs. 5,000,000/= to each of the 1st, 3rd and 4th respondents (a total of Kshs. 15,000,000/=) plus costs. Applying the settled conjunctive twin test under rule 5(2)(b), the Court found the intended appeal arguable on the questions of the bank's contractual power to freeze unnamed accounts and any duty to notify, but held the application failed on the nugatory limb. The decree was a straightforward money decree; the respondents demonstrated by un-displaced evidence that they were financially capable of refunding the decretal sum, and a large decree alone does not justify a stay. The Court reiterated that rule 5(2)(b) is not an automatic suspension of execution absent exceptional circumstances, and that a successful litigant should not lightly be deprived of the fruits of a regularly obtained judgment. The motion was dismissed with costs to the respondents. The decision below was not disturbed on the merits; the Court preserved findings binding on the High Court only in the sense of restating settled rule 5(2)(b) jurisprudence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable (not frivolous) under rule 5(2)(b)
  2. 2.Whether, unless a stay of execution is granted, the intended appeal would be rendered nugatory

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal raised at least one arguable issue concerning a bank's power to freeze accounts not named in court orders and any duty to notify customers.

Reasoning

The Court, without expressing any concluded view on the merits, found that whether a bank acting under contractual terms and fraud investigations may freeze accounts not expressly named in court orders, and whether a duty to notify arises, are issues that are not idle or frivolous and merit interrogation on appeal.

p. 2
02

Nugatory limb / money decree

Holding

The applicant failed the nugatory limb: the decree was a straightforward money decree and the respondents demonstrated, by un-displaced evidence of bank statements and balances, that they could refund the decretal sum.

Reasoning

The evidential burden lay on the applicant to show that the respondents would be unable to repay if the appeal succeeded. The respondents, including a senior advocate and proprietor of the 1st respondent, exhibited bank statements with substantial credit balances; this evidence was not displaced. Restitution would remain a viable and realistic remedy, so success on appeal would not be rendered hollow.

p. 3
03

Protection of a successful litigant's judgment

Holding

Rule 5(2)(b) is not an automatic suspension of execution, particularly absent exceptional circumstances; this was an ordinary money decree with no unique subject matter, perishable rights or public interest.

Reasoning

The Court reiterated that a successful litigant should not lightly be deprived of the fruits of a regularly obtained judgment, and saw no basis for departing from settled principles because the case involved no unique subject matter, perishable rights or public interest considerations.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both conjunctive limbs: an arguable appeal and that the appeal would be rendered nugatory; failure on either is fatal.
  • The mere fact that a decree is for a large sum of money is not by itself a ground for granting stay; the applicant must show by evidence that the respondent cannot refund the decretal sum.
  • Where the respondent is shown to be financially capable, the nugatory limb is not satisfied merely because execution may proceed.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 8th September, 2025
  2. 2.Costs of the application awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court
HCC Suit no. E220 of 2020
Jurisdiction invoked
rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of execution of the High Court judgment and decree pending the intended appeal

The applicant satisfied the arguability limb but failed the nugatory limb; the decree is a money decree and the respondents demonstrated financial capacity to refund.

p. 3

Costs

The Notice of Motion dated 8th September, 2025 is dismissed with costs to the respondents.

Quotable passages

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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 two limbs under rule 5(2)(b) are conjunctive, and failure to satisfy either is fatal to an application
p. 2conjunctive test under rule 5(2)(b)
the mere fact that a decree is for a large sum of money is not, by itself, a ground for granting stay
p. 3large money decree alone insufficient
The evidential burden lay on the applicant to demonstrate that the respondents would be unable to repay the decretal sum if the appeal were to succeed
p. 3burden of proof on nugatory limb
Rule 5(2)(b) is not intended to operate as an automatic suspension of execution pending appeal, particularly where no exceptional circumstances are shown
p. 3stay not automatic
Accordingly, the Notice of Motion dated 8th September, 2025 is dismissed with costs to the respondents.
p. 3final orders / disposition

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "I & M Bank Limited v Kagwimi Kang'ethe & Company Advocates (Civil Application E540 of 2025) [2026] KECA 110 (KLR)", Case Analysis (2026). Notice of Motion dated 8th September, 2025 (arising from HCC Suit no. E220 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/110/eng@2026-01-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.