Kenya Commercial Bank Limited (Now KCB Bank Limited) v Tanzania National Roads Agency & another (Civil Application E068 of 2025) [2026] KECA 894 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a multi-billion shilling money judgment against KCB Bank because a refundable money decree alone doesn't justify 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 applicant's intended appeal is arguable
- 2.Whether the intended appeal, if successful, would be rendered nugatory absent stay of execution
Key legal issues
#Whether the intended appeal is arguable
The Court found the draft memorandum of appeal raised substantive issues of law and fact, satisfying the first limb of the twin principle.
The Court examined the draft memorandum of appeal against the record and found multiple substantive issues deserving inquiry on appeal. Relying on established authority, it reiterated that even a single bona fide ground suffices for arguability, citing University of Nairobi v Ricatti Business of East Africa. Thus the first limb was satisfied.
Whether the appeal would be rendered nugatory absent stay
The Court held it would not, because what is stayed is a money decree and no impecuniosity of the 1st respondent was demonstrated; the applicant failed the second limb.
The Court defined 'nugatory' as worthless, futile or invalid. It observed that the decree is monetary and refundable; the 1st respondent's counsel conceded interest could be recalculated and overpayments refunded. The applicant's vague complaint about 'bureaucracies and policies of government operations' was unsubstantiated, and no impecuniosity of the 1st respondent was alleged. Both limbs of the twin principles being conjunctive, failure of one disposes of the Motion.
Legal principles established
#- An applicant for stay under rule 5(2)(b) must satisfy both limbs of the twin principles: an arguable appeal and that the appeal would be rendered nugatory absent stay.
- Even one bona fide ground of appeal is adequate to satisfy the arguability limb of the twin principle.
- For a money decree, mere allegations that recovery will be bureaucratic and time-consuming, without proof of the decree-holder's inability to refund, do not establish that the appeal would be rendered nugatory.
Court orders
#- 1.Dismissal of the applicant's Notice of Motion seeking stay of execution of the High Court ruling of 11th July 2025 pending the intended appeal
- 2.Costs of the Motion awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- HCCC No. 8 of 2010 (ruling dated 11th July 2025)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 (stay of execution pending appeal)
Relief refused
#Stay of execution of the High Court ruling dated 11th July 2025 pending the intended appeal
The applicant failed to satisfy the second limb of the twin principles: the appeal would not be rendered worthless or futile if stay was not granted, since a money decree is refundable and no impecuniosity of the 1st respondent was demonstrated
Costs
The Motion was dismissed with costs to the 1st 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.
for an applicant to merit stay orders pursuant to rule 5(2) (b) of the Court of Appeal Rules pending appeal, he or she must demonstrate to the satisfaction of the Court that he or she has an arguable appeal; and that the appeal (or intended appeal as the case may be), if successful, would be rendered nugatory absent stay
Crucially ,we have not been told that the 1st respondent is impecunious and incapable of refunding the decretal amount should the appeal succeed.
In efiect, the applicant has failed to satisfy the conjunctive limbs of the twin principles for grant of stay orders under rule 5(2) (b) of the Rules of this Court. Accordingly, its Motion dated 17th July 2025 fails and is hereby dismissed with costs to the 1st respondent.
Issues in the judgment
#The Motion is described as dated 31st July 2025 in the body of the judgment, but the final orders dismiss a 'Motion dated 17th July 2025', an internal date inconsistency.
The delivery date is garbled in the text, reading '15TH DAY MAY OF 2026'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Bank Limited (Now KCB Bank Limited) v Tanzania National Roads Agency & another (Civil Application E068 of 2025) [2026] KECA 894 (KLR)", Case Analysis (2026). Civil Application (Motion) dated 31st July 2025, arising from HCCC No. 8 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/894/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.