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Court of AppealAllowedNotice of Motion dated 28th March 2025 (Civil Application, Rule 5(2)(b), Court of Appeal)

National Bank of Kenya Ltd v Verus Praedium Realtors Ltd & 3 others (Civil Application E207 of 2025) [2026] KECA 234 (KLR)

Court of Appeal of Kenya
13 February 2026
KMK. M'INOTIJMJAMILA MOHAMMEDJNJOEL NGUGI
1,934 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped contempt jail proceedings against National Bank's CEO pending appeal, confirming personal liberty justifies stay of execution.

What this practically means

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Executive summary

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The National Bank of Kenya moved the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a High Court ruling (Monga're J, 17th January 2025) in which the Bank's CEO, Mr. George Odhiambo, was found guilty of contempt for failing to deposit Kshs 23 million into a joint interest account pursuant to a consent order of 30th April 2024 in High Court Civil Suit No. E170 of 2024. The High Court directed the CEO to show cause why he should not be punished. The Bank argued the appeal was arguable because it was not a party to the consent order, had complied with its operative parts, the order did not require it to deposit the funds and did not specify their source, and the account held only Kshs 19,285.95 when the demand was made; it also contended contempt requires deliberate and willing disobedience of a clear and unambiguous order. The 1st respondent opposed, noting the account had been debited Kshs 32,587,070.30 without the deposit being made, while the 2nd to 4th respondents supported the application. Applying the two-limb Kang'ethe Kinyanjui test, the Court found the appeal arguable on the clarity of the consent order and whether disobedience was deliberate, and held the CEO's liberty was at stake such that the appeal would be rendered nugatory if he were jailed before determination. The application was allowed with costs abiding the appeal, subject to the appeal being filed within sixty days failing which the stay lapses automatically.

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
  2. 2.Whether, unless stay of execution is granted, the appeal risks being rendered nugatory if it succeeds

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The appeal was arguable on the questions whether the consent order clearly obligated the applicant to deposit the money and whether the applicant deliberately and willingly disobeyed it.

Reasoning

The Court held that whether the consent order was sufficiently clear as to the applicant's obligations was an issue worthy of determination, as was whether the applicant deliberately and willingly disobeyed the order. It reiterated that only one bona fide issue is needed and that an arguable appeal need not succeed, only not be frivolous.

02

Whether the appeal would be rendered nugatory absent stay

Holding

Yes - the CEO's liberty was at stake, and imprisonment before the appeal could not be undone.

Reasoning

The Court reasoned that if the CEO served a jail sentence and the appeal later established there was no contempt, that outcome would be a pyrrhic victory; liberty, once lost, cannot be restored. Whether the CEO should serve time ought to await determination of the appeal.

p. 4

Legal principles established

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  • An applicant for stay under rule 5(2)(b) must satisfy both limbs - an arguable appeal and nugatory risk - not just one.
  • A single bona fide arguable issue suffices, and the appeal need not ultimately succeed to be arguable.
  • Deprivation of personal liberty pending appeal justifies interim preservation, since liberty once lost cannot be fully restored.

Court orders

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  1. 1.Notice of motion dated 28th March 2025 allowed; stay of execution of the High Court ruling and order of 17th January 2025 pending the hearing and determination of the intended appeal
  2. 2.Costs to abide the outcome of the intended appeal
  3. 3.Applicant to file and serve its intended appeal within sixty (60) days from the date of the ruling, failing which the order of stay of execution shall automatically lapse

The bench

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

KM
majority
JM
majority
JN
majority
On appeal from
High Court of Kenya at Nairobi
High Court Civil Suit No. E170 of 2024 (ruling of 17th January 2025)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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.

Accordingly, we are satisfied that the applicant has satisfied both considerations under rule 5(2)(b) of the Court of Appeal Rules and is entitled to an order of stay of execution pending the hearing and determination of the intended appeal.
p. 4Final orders - stay granted
the applicant shall file and serve its intended appeal within sixty (60) days from the date of this ruling, failing which the order of stay of execution shall automatically lapse.
p. 4Final orders - conditional stay
The applicant must satisfy both those considerations and not only one.
p. 3Rule 5(2)(b) principles
Whether or not an appeal will be rendered nugatory depends on the peculiar circumstances of each case.
p. 4Nugatory test

Issues in the judgment

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minor

Delivery date in the dispositif appears inconsistent with the chronology of the application and hearing

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "National Bank of Kenya Ltd v Verus Praedium Realtors Ltd & 3 others (Civil Application E207 of 2025) [2026] KECA 234 (KLR)", Case Analysis (2026). Notice of Motion dated 28th March 2025 (Civil Application, Rule 5(2)(b), Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/234/eng@2026-02-13

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