https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1104

Imbuye & another v Kenya Commercial Bank Ltd & another (Civil Application E745 of 2025) [2026] KECA 1104 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1104 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E745 of 2025 F Tuiyott, MN Nduma & M Sila, JJA June 12, 2026 Between Oscar Sammy Imbuye and Aginela kezia Waleghwa Applicant and Kenya Commercial Bank Limited 1st Respondent Watts Auctioneers 2nd Respondent (Being an application for an injunction and stay of the Orders of the High Court of Kenya (Commercial & Tax Division) at Nairobi (Visram Aleem Alnashir, J.) dated 11th December 2025 in Milimani HCCOM No. 039 of 2021) Ruling 1.Before us is a Notice of Motion dated 12th December 2025, brought under Articles 40 and 159(2) of the Constitution of Kenya, Sections 3, 3A and 3B of the Appellate Jurisdiction Act, Chapter 9 of the Laws of Kenya, Rule 5(2)(b) of the Court of Appeal Rules, 2010, and all other enabling provisions of law. 2.It is an application subsequent to a Notice of Appeal against the ruling and orders of the High Court (Commercial and Tax Division) delivered on 11th December 2025 in Milimani HCCOM No. 039 of 2021. 3.The applicants’ case is that on 11th December 2025, the High Court vacated status quo orders earlier recorded by consent and proceeded to direct the applicants to vacate their matrimonial property known as LR No. 209/18570 (Original No. 209/10523), Trident Park, Maisonette No. 1, Nairobi. 4.They contend that the decision was rushed, emotional, and erroneous, delivered without affording them a proper hearing, and that strangers to the proceedings were entertained and given audience without filing any papers. 5.The applicants aver that they have already paid over Kshs.20 million in respect of a mortgage of about Kshs.13 million, thereby substantially settling the loan. They argue that the 1st respondent bank has never served proper statutory notices or conducted a lawful valuation before purporting to sell the charged property. They maintain that unless this Court intervenes, they and their family face imminent eviction during the festive season, exposing them to irreparable harm that cannot be compensated by damages. 6.In support of the application, the 1st applicant, Oscar Sammy Imbuye, swore a supporting affidavit on 12th December 2025. He depones that on 1st July 2025, he received a WhatsApp message from auctioneers attaching a courtesy notice of sale scheduled for 8th July 2025. 7.That he immediately moved to court on 3rd July 2025, obtaining conditional injunctive orders requiring a deposit of Kshs.4 million. He explains that subsequent applications to enlarge time were ignored, and despite repeated inquiries, the bank refused to disclose whether any auction had taken place. He annexes letters dated 11th and 23rd July 2025 to the bank which went unanswered. 8.The 1st applicant further deposes that the bank only disclosed in October 2025, through a replying affidavit, that the property had already been sold, and later transferred to one Celestine Jeruto Rono in October 2025, contrary to subsisting status quo orders of 16th October 2025. He annexes the lease document evidencing the transfer and letters from the bank and the buyer’s advocates threatening eviction. 9.The 1st applicant states that he filed a contempt application on 26th November 2025, but the court misconstrued it as a review application. Meanwhile, the bank filed its own review application on 4th December 2025, which was prioritized over the contempt application. 10.On 11th December 2025, the High Court delivered the impugned ruling, holding that no injunctive orders were in place and directing the applicants to vacate the premises. 11.The applicants argue that their intended appeal is arguable with high chances of success, raising serious questions of law and fact, including whether the High Court erred in disregarding subsisting status quo orders, entertaining strangers, misconstruing the contempt application, and directing eviction based on non-compliance with conditional orders that had ceased to apply. 12.The applicants invoke Rule 5(2)(b) of the Court of Appeal Rules, submitting that unless injunctive relief and stay are granted, the appeal will be rendered nugatory. 13.The applicants further contend that the respondents acted in contempt of court by transferring the property in disregard of subsisting orders, and that equity demands preservation of the subject matter pending appeal. They urge this Court to intervene to protect their proprietary rights under Article 40 of the Constitution and to ensure justice is done under Article 159(2). 14.In sum, the applicants pray that this Court grants an injunction restraining the respondents from interfering with their occupation of the suit property, a stay of the orders of 11th December 2025, and a stay of proceedings in Milimani HCCOM No. 039 of 2021, pending the hearing and determination of the appeal. 15.The applicants submit that the respondents will suffer no prejudice if the orders sought are granted, while the applicants stand to suffer irreparable harm if relief is denied. 16.The application was opposed by the 1st respondent through the replying affidavit of its Recovery Manager, Kuria Mwangi, sworn on 18th December 2025. The case for the respondents is that the applicants repeatedly failed to comply with conditional injunctive orders issued by the trial court, and therefore never enjoyed any injunctive protection over the suit property. That the High Court only granted conditional orders requiring the applicants to deposit Kshs.4,000,000 which they persistently failed to meet, and as such no injunction ever crystallized in their favour. 17.The respondents contend that the loan facility advanced to the applicants in 2013 and 2014, amounting to Kshs.13,852,906 fell into arrears in 2021, prompting the issuance of statutory notices under Sections 90 and 96 of the Land Act. That the applicants neglected to remedy the default, and the property was lawfully sold by public auction on 8th July 2025 to a bona fide purchaser for value, Celestine Jeruto Rono, for Kshs.20,400,000. 18.The respondents posit that title has since passed to the purchaser, whose proprietary rights are protected under Section 99 of the Land Act, and that the applicants cannot now seek to revive rights that never accrued. 19.The respondents further assert that the applicants were duly served with all requisite statutory notices, including a courtesy notice on 29th May 2025 via WhatsApp, which was acknowledged. They maintain that the applicants were aware of the auction, which was advertised in the dailies on 18th June 2025, and cannot feign ignorance. They emphasize that the applicants filed multiple applications on 3rd July, 5th July, and 23rd July 2025, all seeking injunctive relief, but consistently failed to comply with the conditional requirement of depositing Kshs.4,000,000. 20.The respondents argue that the consent recorded on 16th October 2025 to maintain status quo preserved the factual position as it then existed, namely that the property had already been sold, no injunction existed, and the applicants had no possessory protection. They submit that the High Court correctly clarified on 11th December 2025 that status quo could not revive expired injunctions or confer rights that never crystallized. 21.The respondents further contend that the present application is a repetition of earlier applications, amounts to an abuse of court process, and is intended merely to delay foreclosure. They argue that the applicants have failed to demonstrate substantial loss, have offered no security, and that the real prejudice lies with the bona fide purchaser who remains deprived of possession. They urge this Court to dismiss the application as unmeritorious, with no probability of success. 22.The application was canvassed by way of written submissions.When it came up for hearing, Mr. Karimi advocate was present for the applicant, Mr. Waya Ndegwa was present for the 1st respondent while Ms. Ochieng appeared and indicated she had filed an application to be enjoined as an interested party to the proceedings. Her application dated 24th February, 2026 was allowed there being no objection from the other parties. The parties indicated that they had already filed their respective submissions, and wished the matter to proceed on that basis save for minor highlights. 23.In their written submissions dated 27th February 2026, the applicants urged the Court to grant an injunction and stay under Rule 5(2)(b) of the Court of Appeal Rules. They argued that their appeal is arguable, having raised at least eight grounds in the draft memorandum of appeal, including that the learned Judge erred in vacating the consent status quo orders of 16th October 2025, entertained strangers in the proceedings, misconstrued the contempt application, and hastily issued prejudicial orders. 24.The applicants further submitted that unless the Court grants the orders sought, the appeal will be rendered nugatory as they face imminent eviction from their matrimonial home, which they had substantially paid for. They emphasized that damages cannot adequately compensate for the loss of a matrimonial home, and relied on authorities including Trust Bank Limited v Investech Bank Limited [2000] eKLR and Permanent Secretary Ministry of Roads v Fleur Investments Limited [2014] eKLR to support their position. 25.Counsel for the applicants implored the Court to consider the peculiar circumstances of the case and allow the application dated 12th December 2025, submitting that the respondents would suffer no prejudice if the orders sought were granted, while the applicants stood to suffer irreparable harm. 26.In response, the 1st respondent, through their written submissions dated 27th February 2026, reiterated and expounded on the averments in their replying affidavit. It was their submission that the applicants had persistently failed to comply with conditional injunctive orders requiring a deposit of Kshs.4,000,000 and therefore never enjoyed any injunctive protection over the suit property. They argued that the property was lawfully sold by public auction on 8th July 2025 to a bona fide purchaser for value, whose Title is protected under the Land Act. 27.The respondents maintained that the consent recorded on 16th October 2025 to maintain status quo only preserved the factual position as it then existed, namely that the property had already been sold, and could not revive expired injunctions or confer possessory rights. They submitted that the applicants had not raised any arguable grounds of appeal, and further failed to demonstrate that the appeal would be rendered nugatory. On the contrary, they argued that the real prejudice lies with the bona fide purchaser who has been hindered from taking possession and enjoying the property. 28.It was therefore their position that the application dated 12th December 2025 lacked merit, failed to meet the two-pronged test under Rule 5(2)(b) of the Court of Appeal Rules, and should be dismissed with costs. 29.We have considered the application, the grounds in support thereof, the replying affidavit, the submissions, the authorities cited, and the law. The jurisdiction of this Court on an application under Rule 5(2)(b) of this Court’s Rules is discretionary and guided by the interests of justice. In the exercise of this discretion, the Court must be satisfied on the twin principles which are that the appeal is arguable and that if the orders sought are not granted and the appeal succeeds, the appeal will be rendered nugatory. 30.This Court in the case of Trust Bank Limited and Another v Investech Bank Limited and 3 Others [2000] eKLR delineated the jurisdiction of this Court in such an application as follows:“The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding principles but these principles must be considered against facts and circumstances of each case…” 31.In considering the twin principles set out above, we are cognizant that to benefit from the discretion of this Court, both limbs must be demonstrated to the Court’s satisfaction. 32.On the first principle, as to whether or not the appeal is arguable, we have to consider whether there is at least a single bona fide arguable ground that has been raised by the applicant in order to warrant ventilation before this Court. In Stanley eKLR, this Court described an arguable appeal in the followingterms:“vii).An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.viii).In considering an application brought under Rule 5 (2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal.” 33.We have carefully considered the application dated 12th December 2025, the grounds set out therein, the supporting affidavits, the draft memorandum of appeal, and the rival submissions of the parties. In our view, the appeal is arguable, regarding whether the learned Judge erred in vacating the consent status quo orders of 16th October 2025, entertaining strangers in the proceedings, misconstruing the contempt application, and directing eviction based on conditional orders that had ceased to apply. We say so bearing in mind that an arguable appeal is not one that must necessarily succeed, but one that is deserving of consideration by this Court. 34.On the nugatory aspect, however, we are not persuaded that the applicants have demonstrated that the appeal will be rendered nugatory if the orders sought are not granted. The record shows that the suit property was lawfully sold by public auction on 8th July 2025 to a bona fide purchaser for value, whose Title is protected under Section 99 of the Land Act. 35.The applicants remain in occupation, but the substratum of the appeal is not destroyed, as any loss can be compensated in damages should the appeal ultimately succeed. While the sentimental and emotional attachment of a family to a matrimonial home can never be minimized, we do not understand the law to be that any loss of a matrimonial home is not compensable in damages. A party making such an argument must demonstrate peculiarities of the property that makes it invaluable or priceless, an onus not discharged by the applicants here. In this instance any loss can be met through compensation in damages by the bank, whose ability to do so has not been doubted by the applicants. 36.As the applicant is required to establish both limbs under Rule 5(2)(b) of this Court’s Rules, and having failed to satisfy the second limb, the application cannot succeed. Accordingly, the Notice of Motion dated 12th December 2025 is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026.F. TUIYOTT…………...….........………JUDGE OF APPEALNDUMA NDERI…………...….........………JUDGE OF APPEALMUNYAO SILA…………………...………..JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.