https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1002

Salim v Eco Bank Ltd & 2 others (Civil Application E040 of 2025) [2026] KECA 1002 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1002 (KLR) Republic of Kenya In the Court of Appeal at Malindi Civil Application E040 of 2025 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 29, 2026 Between Asha Kamene Salimi Applicant and Eco Bank Limited 1st Respondent Watts Auctioneers 2nd Respondent Petro Soko Limited 3rd Respondent (Being an application for an injunction pending appeal against the Ruling and Orders of the High Court of Kenya at Malindi (M. Thande,J.) dated 8th August 2025 inH.C.C.C No. E010 of 2025) Ruling 1.In her Notice of Motion dated 19th November 2025, the applicant (Asha Kamene Salim) sought an injunction to restrain the 1st and 2nd respondents (Eco Bank Limited and Watts Auctioneers) from selling, advertising for sale, transferring, disposing of or in any manner dealing in the suit properties, pending determination of her intended appeal against the ruling and orders of the High Court of Kenya at Malindi (M. Thande, J.) dated 8th August 2025 in HCCC No. E010 of 2025. 2.The impugned ruling and orders were made in the applicant’s suit against the respondents vide a plaint dated 8th June 2025 in which she had sought orders, inter alia, to restrain the 1st and 2nd respondents from selling or otherwise dealing in LR No. 9122/401 and LR No. 9122/402 (the suit properties). The intended sale was in exercise of the 1st respondent’s statutory power of sale in consequence of default in repayment of the mortgage debt in terms of the Charge, which was executed by the 3rd respondent (Petro Soko Limited) in favour of the 1st respondent on 18th October 2023 to secure repayment of the mortgage debt in the sum of Kshs. 55,600,000 advanced to the 3rd respondent. 3.Her case, as pleaded, was that she encountered financial difficulties as she was unable to access credit due to adverse listing by the Credit Reference Bureau (CRB); that she entered into an agreement with the 3rd respondent to secure the loan aforesaid from the 1st respondent on her behalf, and in consideration of a commission in the sum of Kshs. 9,000,000; that she was coerced through economic duress to transfer the two properties to the 3rd respondent as a facilitative measure to secure the loan; that she owned the suit properties on which she resided and developed; that ownership of the two properties was the subject of litigation in Malindi ELC Case No. E085 of 2024; and that sale of the properties by the 1st respondent would render the proceedings aforesaid nugatory and occasion her irreparable loss. 4.Along with her plaint, the applicant filed a Notice of Motion of even date seeking a temporary injunction to restrain sale of the mortgaged properties pending determination of the substantive suit. 5.Gathering from the impugned ruling, the 1st and 2nd respondents opposed the applicant’s Motion vide a replying affidavit sworn by one Haitham Ali Shebe (which is not on record). 6.In addition, the two moved the ELC to strike out the applicant’s suit on the grounds that the applicant lacked locus standi to institute the proceedings in view of the fact that she was not the registered proprietor of the suit properties; that the properties were registered in the name of the 3rd respondent; that the suit was sub judice Malindi ELC Case No. E085 of 2024 between the applicant and the 3rd respondent; that, in consequence of default in repayment of the mortgage debt, it was lawfully exercising its statutory power of sale. Likewise, the Motion and the affidavit in support thereof are not on record. 7.As we gather from the impugned ruling in the absence of its replying affidavit, the 3rd respondent contended that the issues raised in the applicant’s Motion relate to the agreement between it and the applicant; and that they had no bearing on the 1st respondent’s right to exercise its statutory power of sale. 8.In the ruling dated 8th August 2025, the learned Judge dismissed the applicant’s Motion with costs and allowed the 1st and 2nd respondents’ application and struck out the applicant’s suit with costs to the 1st respondent. 9.Aggrieved by the learned Judge’s decision, the applicant moved to this Court on appeal pending determination of which she seeks temporary injunction to restrain dealings in the suit properties on 15 grounds set out in her memorandum of appeal dated 19th November 2025. In essence, the applicant faults the learned Judge for, among other things, holding that she had no locus standi to sue; treating the 3rd respondent’s registration as proprietor of the suit properties as conclusive evidence of ownership; determining the validity of title to the two properties at an interlocutory stage in the proceedings; concluding that no prima facie case existed in her favour; failing to find that the applicant stood to suffer irreparable harm; holding that her suit was sub judice; and for invoking the drastic power to strike out her suit. 10.The applicant’s Motion for temporary injunction pending appeal is supported by her annexed affidavit sworn on 19th November 2025 deposing to 7 grounds on which it is founded, namely that she has an arguable appeal; that the appeal will be rendered nugatory unless the injunctive orders sought are granted; that she resides on the property on which she has heavily invested; that the intended sale is based on a contested and arguably fraudulent transaction; that she stands to suffer irreparable harm that cannot be compensated by an award of damages; and that the balance of convenience overwhelmingly supports the preservation of the status quo pending determination of the intended appeal. 11.In purported response, the 1st and 2nd respondents filed an unsworn and undated affidavit in the name of one John Mwonga, but whose contents we cannot consider for want of the requisite jurat. As for the 3rd respondent, it did not file any affidavit in reply. 12.In support of the Motion, learned counsel for the applicant, Ms.Wanjiku A. Njuguna filed written submissions dated 7th January 2026 citing this Court’s decision in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, which set out the twin principles to be satisfied to merit grant of orders under rule 5(2) (b) of this Court’s Rules. Counsel urged us to allow the Motion as prayed. 13.In rebuttal, learned counsel for the 1st and 2nd respondents, M/s. Nyaanga & Mugisha, filed written submissions and a list of authorities dated 16th January 2026 citing the cases of Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others (ibid); and Peter Nyaga Muvake v Joseph Mutunga [2015] KEHC 6497 (KLR) on the twin principles for grant of orders under rule 5(2) (b). In their words, counsel inexplicably prayed “that the application and the suit herein be struck out with costs”. 14.On their part, learned counsel for the 3rd respondent, M/s.Moses Mwakisha M/s. & Company, filed written submissions dated 6th January 2026. Citing no authorities, counsel urged us to dismiss the applicant’s Motion with costs. 15.As this Court pronounced itself time and again, for an applicant to merit stay of execution, preservative orders or injunctive relief 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 if the orders sought were not granted. The two requirements constitute what is commonly referred to as the twin principles that must be satisfied before such orders can avail (see Anne Wanjiku Kibeh vs. Clement Kungu Waibara and IEBC [2020] eKLR; and Yellow Horse Inns Limited vs. A. A. Kawir Transporters & 4 Others [2014] eKLR). 16.We also take to mind the fact that, as this Court has often stated, even one ground of appeal is adequate to satisfy the first limb of the twin principle. University of Nairobi vs. Ricatti Business of East Africa [2020] eKLR is a case in point. 17.The decisive question here is whether the applicant has demonstrated that she has an arguable appeal and, if the answer is in the affirmative, whether her appeal would be rendered nugatory if the interim injunctive relief and preservatory orders sought are not granted. 18.Turning to the issue as to whether the applicant has an arguable appeal, we hasten to observe that the genesis of the dispute between the parties revolves around the two-pronged question as to whether the 1st respondent has the right to exercise its statutory power of sale in respect of the suit properties; and whether the applicant had the locus standi to sue in resistance of that right, both of which are arguable. 19.A cursory look at the grounds of appeal advanced in the applicants’ memorandum of appeal, viewed in the backdrop of the record as put to us, reveals substantive issues of law deserving of the Court’s inquiry on appeal. As already observed, even one ground suffices – see University of Nairobi vs. Ricatti Business of East Africa (supra). 20.With regard to the second limb of the twin principle, the term “nugatory” was defined in Reliance Bank Ltd vs. Norlake Investments Ltd [2002] 1 EA p.227 at p.232 as “worthless, futile or invalid”. It also means “trifling”. 21.Having concluded that the applicant’s intended appeal is arguable, the decisive question is whether, if successful, it would be rendered nugatory if the injunctive orders sought are not granted. The applicant has not told us that, if the suit properties are sold in exercise of the 1st respondent’s statutory power of sale, the 1st respondent would not be able to compensate her for any loss or damage or render an account of the proceeds thereof in the event that her intended appeal were successful, and considering that the decision is in respect of a money decree, it is not lost on us that the applicant has not proffered any deposit as security for the sums owed. 22.We find nothing on the record or from the submissions by counsel for the applicant to suggest that the intended appeal (if successful) would be rendered worthless or futile in the event that the orders sought were not granted. 23.The applicants having failed to satisfy the conjunctive twin principles required to be met for grant of orders under rule 5(2) (b) of the Court of Appeal Rules, her Notice of Motion dated 21st March 2024 fails and is hereby dismissed with costs to the respondents. Orders accordingly. DATED AND DELIVERED AT MOMBASA THIS 29TH DAY OF MAY, 2026.A. K. MURGORJUDGE OF APPEAL.......................................DR. K. I. LAIBUTA CArb, FCIArb.JUDGE OF APPEAL.......................................G. W. NGENYE-MACHARIAJUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR