https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10941

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **CIVIL SUIT NO. 187 OF 2011** **DOROTHY WANJIKU NJUGUNA ……………………..….....… PLAINTIFF** **VERSUS** **GUARANTY TRUST BANK (KENYA) LTD …………….. 1ST DEFENDANT** **THE REGISTRAR OF LANDS ........................................ 2ND DEFENDANT** **(By Original Action)** **GUARANTY TRUST BANK (KENYA) LTD ............................... PLAINTIFF** **VERSUS** **DAVID NJUGUNA NGOTHO T/A** **NDUNDU CEREALS STORES ......................................... 1ST DEFENDANT** **MONICA WAMAITHA NJUGUNA ............................. 2ND DEFENDANT** **(By Counterclaim)** **RULING** 1. This is a hotly contested application. It pits a disgruntled litigant against a successful party seeking to enjoy the fruits of a lawful judgment. 2. The Applicant lost the substantive suit. She now seeks the intervention of this Court to halt the execution of the decree. **Background Facts** 3. The Plaintiff initially filed this suit seeking the deregistration of a charge over Land Title Number Dagoreti/Kangemi/S.70. 4. She anchored her claim on the assertion that she was the wife of the late **David Njuguna Ngotho**. She argued that her unregistered proprietary interest constituted an overriding interest over the suit property. 5. The Court evaluated the evidence. In a judgment delivered on 3rd July, 2025, the Trial Court found that she failed to produce a marriage certificate. Consequently, the Court dismissed the Plaintiff's suit with costs. 6. Judgment was concurrently entered in favour of the 1st Defendant/Respondent on its counterclaim. 7. The estate currently owes the 1st Defendant/Respondent the sum of Kshs. 3,248,808.28 as of 31st August, 2025. **Orders Sought** 8. The Plaintiff/Applicant filed a Notice of Motion dated 13th August, 2025. 9. She seeks a preservatory order prohibiting any and all dealings with Land Title Number Dagoreti/Kangemi/S.70 pending the hearing and determination of her intended appeal. **Issues for Determination** 10. The Court distils the following issues for determination: 1. *Whether a negative order is capable of being stayed.* 2. *Whether the Applicant has met the threshold for the grant of an injunction or preservatory order pending appeal.* **Analysis** 11. The ‘Erinford injunction’, established in **Erinford Properties Ltd v Cheshire County Council, [1974] 2 All ER 443**, is a distinct equitable remedy allowing a Trial Court to grant a temporary injunction pending an appeal. This is even immediately after that same Court has refused the Applicant's primary request for an interlocutory injunction. Its core purpose is to preserve the *status quo* and prevent an appeal from becoming entirely futile or academic. This would be due to the irreparable alteration or destruction of the disputed subject matter before the higher Court can intervene. The Court has to carefully weigh the balance of convenience and assess whether financial damages would be an adequate remedy. In doing so, the Court ensures that the appellate process remains effective and that justice can still be practically served if the initial refusal is ultimately overturned. 12. These principles have been approved in our Courts as seen in **Madhupaper International Ltd v Kerr [1985] KECA 76 (KLR).** ***(a) Whether a negative order is capable of being stayed.*** 13. The Courts attention has been drawn to the effects of a negative order and whether it is capable of being stayed. 14. The judgment delivered on 3rd July, 2025 dismissed the Plaintiff's suit. In law, the dismissal of a suit is a negative order. 15. A negative order does not direct any party to do or refrain from doing anything. It is therefore incapable of execution, save for the recovery of costs. 16. One cannot stay that which does not exist. This position was settled by the Court of Appeal in ***Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] KECA 15 (KLR)*** and [**Nairobikiru Line Services Limited v Sub-County of Othaya & 2 others [2017] KECA 749 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/749/eng%402017-03-01)**.** **(b) *Whether the Applicant has met the threshold for the grant of an injunction or preservatory order pending appeal.*** 17. The Applicant has clothed her application as a request for "preservatory orders". This is essentially a plea for an interlocutory injunction pending appeal. 18. To succeed, the Applicant must demonstrate that she has an arguable appeal and that the appeal will be rendered nugatory if the order is denied. 19. The Trial Court definitively determined that the Applicant failed to prove her marital status, extinguishing her claim to an overriding interest. This Court cannot sit on appeal over that substantive factual finding under the guise of an interlocutory application. 20. The 1st Defendant/Respondent holds a valid charge. It issued a lawful 90-day statutory notice on 3rd September, 2025. 21. The execution of a lawful statutory process does not amount to substantial loss. As held in **Wanjiku v Oduor & another (Suing as legal representatives of the Estate of Elisha Ithamba Sammy - Deceased) [2025] KEHC 4087 (KLR)**, the Applicant must show specific, irremediable harm. 22. The 1st Defendant/Respondent is said to be a reputable financial institution. If the Applicant's appeal is ultimately successful, the Bank is said to have the financial capacity to refund the decretal sum or adequately compensate her in damages. It has attached its unaudited financial statements as at 31st March, 2025. 23. Furthermore, the balance of convenience tilts heavily in favour of the 1st Defendant/Respondent. The Applicant has continued to collect rental income from the suit property while the loan remains unpaid. It is unjust to indefinitely deprive a successful litigant of the fruits of their judgment. 24. As to costs, the same lie at the discretion of this Court. Costs ordinarily follow the event. There are no grounds advanced as to why the successful Respondent should be denied costs of the application. They are awarded to the 1st Respondent. **Determination** 25. The Court is not persuaded that the orders sought by the Plaintiff/Applicant are merited. The Court proceeds to make the following orders: 1. *The Plaintiff/Applicant’s application by way of a Notice of Motion dated 13th August, 2025 is HEREBY dismissed for lack of merit.* 2. *The costs of the Application are awarded to the 1st Defendant/Respondent.* 26.It is so ordered. **DATED, SIGNED AND DELIVERED AT MILIMANI THIS 16TH DAY OF JULY, 2026** **NJOROGE BENJAMIN K.** **JUDGE** In the presence of: Mr. Odek for the Plaintiff/Applicant. Mr. Kimani for the 1st Defendant/Respondent. N/A for the 2nd Defendant/ Respondent. Mr. John Paul - Court Assistant.