https://new.kenyalaw.org/akn/ke/judgment/keca/2026/959

Muthoka & another v Kenya Women Microfinance Bank (K) Ltd (Civil Application E641 of 2025) [2026] KECA 959 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 959 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E641 of 2025 LA Achode, AO Muchelule & GV Odunga, JJA May 15, 2026 Between Stellar Kavutha Muthoka 1st Applicant Kenny Muthoka Maluki 2nd Applicant and Kenya Women Microfinance Bank (K) Limited Respondent (Being an application for temporary injunction from the ruling of the High Court at Kitui (L. Gitari, J.) dated 7th October 2025 in HCCC NO. E002 OF 2025) Ruling 1.By way of motion dated 4th November 2025, pursuant to section 3A of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, 2022, the applicants, Stellar Kavutha Muthoka and Kenny Muthoka Maluki, seek a temporary injunction restraining the respondent, Kenya Women Microfinance Bank (K) Ltd, from selling by public auction and/or by private treaty titles numbers Kitui Municipality/Block 111/290 and Kitui Municipality/Block 1/90 or dealing with the same in any other manner pending the hearing and determination of the intended appeal. The intended appeal seeks to challenge the ruling delivered on 7th October 2025 by the learned L. Gitari, J. that dismissed the applicants’ motion dated 10th March 2025 which sought to restrain, by interlocutory injunction, the intended sale of the above properties that had secured a loan of Kshs.70,000,000/= that the respondent had granted them at their request. The respondent had moved to realise the securities by exercising its statutory power of sale. 2.Following that application, the respondent had raised a preliminary objection in which it was contended that the application, and the suit on which it was based, were res- judicata, time barred and an abuse of the process of the court, the matter having been heard and determined in previous litigation between the parties. The objection had other grounds. The objection was sustained. 3.The applicants filed a notice of appeal on 8th October 2025 which was served on 21st October 2025. This is the basis of the application now before us. 4.The applicants’ case is that the they have an arguable intended appeal because the learned Judge erred when she found that the suit and application were res-judicata and/or that were time-barred and/or that they were an abuse of the process of the court. 5.On the nugatory aspect, the applicants contended that the respondent had instructed an auctioneer who intended to sell the properties by public auction on 28th November 2025; that, if the sale were to proceed, the appellants would suffer in a manner that damages would not pay; and that the sale would permanently compromise their right to the property, and adversely affect their right to a fair hearing. 6.The respondent’s response was through a replying affidavit and a preliminary objection on the same grounds as raised in the superior court. It was averred, in response, that the applicants were vexatious litigants, who had unsuccessfully pursued the same orders in Kitui HCCCC No. E007 of 2023 and Kitui ELCA No. E018 of 2024; that, the applicants had obtained a loan which they had failed to service and which continued to accumulate to the detriment of the respondent. 7.On nugatory aspect, it was contended that the suit properties, once charged to secure the loan, were commercial properties with ascertainable value, and that any loss arising from the exercise of the statutory power of sale was compensable in law. 8.We were addressed by learned counsel Mr. Mwalimu who was joined by learned counsel Ms. Mwikali for the applicants and learned counsel Ms. Ongeri for the respondent. They highlighted written submissions which they had respectively filed. 9.Our jurisdiction under Rule 5(2)(b) of this Court’s Rules is original and discretionary (see Trust Bank Limited & Another -vs- Investech Bank Limited & 3 Others [2000] eKLR). The jurisdiction is intended to safeguard the substratum of the intended appeal (see Teachers Service Commission & 2 Others -vs- Kenya National Union of Teachers, Application No. 16 of 2015, [2015] KESC 29)). It is now trite that in order to succeed in an application under Rule 5(2)(b), an applicant must first show that the intended appeal is arguable, and not frivolous and that the intended appeal, if eventually were to succeed, will be rendered nugatory, if the stay orders are not granted (see Chris Munga N. Bichange -vs- Richard Nyagaka Tongi, IEBC & Robert K. Ngeny [2013] LECA 141 (KLR)). 10.Because an arguable appeal is not one that would necessarily succeed but one that merits consideration by the Court, we are prepared to find that, whether the suit and application were res- judicata, or were time-barred, are arguable grounds that should be left to be considered by the full bench when the intended appeal is filed. 11.However, on the question whether the intended appeal may be rendered nugatory if stay is not granted, we have considered that, it is common ground that the applicants obtained a loan which was secured by charges registered against the properties. The loan has not been serviced. Following the decisions of this Court in Equip Agencies Limited -vs- I & M Bank Limited, Civil Application No. 31 of 2019, and Julius Musili Kyunga -vs- Kenya Commercial Bank & 2 Others [2018] eKLR, among others, we consider that the value of the said properties is known, the loan continues to accumulate, and there was no attempt, even remotely, for the applicants to show that the respondent has no means to satisfy any damages that were to be ordered if the intended appeal was to succeed. In these circumstances, we find that there has been lack of demonstration that the intended appeal will be rendered nugatory, if it were to succeed. 12.Consequently, we determine that the application is lacking in merits and is dismissed with costs. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY 2026.L. ACHODE.....................................JUDE OF APPEALA.O. MUCHELULE.....................................JUDE OF APPEALG. V. ODUNGA.....................................JUDE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR