Rukwaro v KCB Bank (Kenya) Ltd & 3 others (Civil Appeal E1210 of 2025) [2026] KEHC 12070 (KLR) (Civ) (30 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E1210 OF 2025** **JAMES MWANGI RUKWARO..………………………...……. APPLICANT** **VERSUS** **KCB BANK (KENYA) LTD…..…….…………………...1ST RESPONDENT** **PAUL RUSSO……………………………………………...2ND RESPONDENT** **CORNELIUS WANGILA SHIKUKU……..…………....3RD RESPONDENT** **GEORGE NJOROGE MUIRURI T/A** **PHILLIPS INTERNATIONAL AUCTIONEERS…….4TH RESPONDENT** **RULING** 1. For determination is the **motion dated 27.11.2025** filed by **James Mwangi Rukwaro** *(hereafter the Applicant)* as against **KCB Bank (Kenya) Ltd, Paul Russo, Cornelius Wangila Sikuku and George Njoroge t/a Phillips Int Auctioneers** seeking *inter alia*-; 2. ***Spent*** 3. ***Spent*** 4. ***That this honorable Court be pleased to restrain the 1st Respondent from taking any further action in furtherance of the purported sale which took place on 22.08.2025 in breach of an undertaking that the suit property will not be sold if at all, before 19.09.2025.*** 5. ***That the 1st Respondent be restrained by itself, its agents and servants from evicting the Appellant from the suit property Apartment No. A5 Riverland on LR No. 330/695 or with interfering with the quiet enjoyment of the same pending hearing and determination of the application and appeal.*** 6. ***The costs of this motion be provided for****.* 7. The motion is brought pursuant to **Orders 40 Rule 10** and **42 Rule 6** of the **Civil Procedure Rules (CPR)**, on grounds on the face of the motion amplified in the supporting affidavit of even date and further affidavit dated **17.12.2025,** both deposed by **James Mwangi Rukwaro**. 8. **KCB Bank (Kenya) Ltd** *(hereafter the 1st Respondent)* opposes the motion by way of grounds of opposition dated **12.12.2025** and **a replying affidavit dated 16.12.2025** deposed by **Jillo Amina**, who on her part cites being the 1st Respondent’s Recovery Manager – Credit Support Unit, therefore competent and duly authorized to depose. 9. Directions were issued on disposal of the Applicant’s motion by way of written submissions. Both parties complied. Having considered the rival affidavit material and submissions the Court’s postulation that the issues for **determination concern-:** 10. ***Whether the Applicant’s motion is merited?*** 11. ***Whether the reliefs sought for are tenable in the circumstance?*** 12. ***Who ought to bear the costs of the motion?*** 13. The Court proposes to contemporaneously **address issues (a) & (b)** as coined above. *Ex facie*, as can be garnered from the reliefs sought by the Applicant, he preferably seeks injunctive reliefs pending hearing and determination of his appeal. 14. In presenting the instant motion, the Applicant has relied on **Orders 40 Rule 10** alongside **Order 42 Rule 6** of the **CPR**, the former of which provides that- ***(1) The court may, on the application of any party to a suit, and on such terms as it thinks fit—*** ***(a) make an order for the detention, preservation, or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein;*** ***(b) for all or any of the purposes aforesaid authorise any person to enter upon or into any land or building in the possession of any other party to such suit; or*** ***(c) for all or any of the purposes aforesaid authorise any samples to be taken, or any observation to be made, or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.*** ***(2) The provisions as to execution of process shall apply mutatis mutandis to persons authorised to enter under this rule.*** 1. Whereas the of **Order 42 Rule 6(6)** as relied on by the Applicant, which in my view it is the better tailored provision appropriate to the reliefs as sought for before this Court provides that-; ***Notwithstanding anything contained in sub-rule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with***. 1. **Visram, J.** (as he then was), distilled the applicable principles undergirding the grant of injunction pending appeal pursuant to **Order 42 Rule 6(6)** in **Patricia Njeri & 3 Others v National Museum of Kenya [2004] eKLR**. The learned Judge stated: ***“The Appellants did, however, pray (in the alternative) for an order of injunction pending appeal. There was no dispute that the court can, in a proper case grant an injunction pending appeal. What are the principles that guide the court in dealing with such an application"*** ***In the Venture Capital case (Venture Capital and Credit Ltd –Vs- Consolidated Bank of Kenya Ltd Civil Application No. Nairobi 349 of 2003 (UR)) the Court of Appeal said that an order for injunction pending appeal is a discretionary matter. The discretion must, however, be “exercised judicially and not in a whimsical or arbitrary fashion.” This discretion is guided by certain principles some of which are as follows:*** ***a) The discretion will be exercised against an Applicant whose appeal is frivolous (See Madhupaper International Limited –Vs- Kerr [1985] KLR 840 which cited Venture Capital). The Applicant must state that a reasonable argument can be put forward in support of his appeal (J. K. Industries –Vs-KCB 1982 – 88) KLR 1088 (also cited in Venture Capital.*** ***b) The discretion should be refused where it would inflict greater hardship that it would avoid (See Madhupaper supra).*** ***c) The Applicant must show that to refuse the injunction would render his appeal nugatory (See Butt –Vs- Rent Restriction Tribunal [1982] KLR 417 (cited also in Venture Capital).*** ***d) The Court should also be guided by the principles in Giella –Vs- Cassman Brown & Company Ltd [1973] EA 358 as set out in the case of Shitukha Mwamodo & Others (1986) KLR 445 (also cited in Venture Capital).” See also Mukoma –Vs Abuoga [1988] KLR 645.”*** 1. I propose to start with the well settled principles in **Giella v Cassman Brown & Co. Limited [1973] EA 358** as reiterated in **Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR),** the latter which is particularly illuminating as to the principles applicable to the motion seeking an interlocutory injunction. 2. The Court described the role of the judge in such an application to be merely to consider whether the principles for the grant of the interlocutory injunction were met. The Court further observed that**:** ***“...Since the fundamentals about the implications of the interlocutory orders of injunctions are settled, at least over four decades since Giella’s case, they could neither be questioned nor be elaborated in detailed research. Since those principles are already ...... by authoritative pronouncements in the precedents, they may be conveniently noted in brief as follows:*** ***In an interlocutory injunction application, the Appellants has to satisfy the triple requirements to:*** ***a) establish his case only at a prima facie level*** ***b) demonstrate irreparable injury if a temporary injunction is not granted.*** ***c) allay any doubts as to (b) by showing that the balance of convenience is in his favor.”*** 1. The Court further stated that the three (3) conditions apply separately as distinct and logical hurdles to be surmounted sequentially by an applicant. Such that, it is not enough for the Appellant to establish a *prima facie* case, they must further successfully establish irreparable injury, that is, injury for which damages recoverable at law could not be an adequate remedy. 2. And where there is doubt as to the adequacy of damages, the Court will consider the balance of convenience. Conversely, where no *prima facie* case is established, the Court need not consider irreparable injury or balance of convenience. 3. Regarding the definition of a *“prima facie case”* the Court stated: ***“Recently, this court in Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] KLR 125 fashioned a definition for “prima facie case” in civil cases in the following words:*** ***“In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the appellant’s case upon trial. That is clearly a standard, which is higher than an arguable case.*** ***We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The Appellants need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the appellant’s case is more likely than not to ultimately succeed."*** 1. **By the Applicant’s affidavit material**, he deposes that the appeal concerns his residential property, **Apartment No. A5 Riverland on LR No. 330/695** *(hereafter the suit property)*, whose preservation is necessary pending the determination of the appeal. That the purported sale of22.08.2025 was undertaken in breach of an implied undertaking given by the 1st Respondent through its advocate on 13.08.2025,that the property would not be sold pending the determination of his application, for which a ruling had been reserved for 19.09.2025 but was not been delivered therefore rendering the sale itself a central issue on appeal. 2. That his amended plaint before the lower Court now raises salient issues among them being whether the 1st Respondent unlawfully enforced an unconscionable loan bargain after allegedly disregarding the Central Bank of Kenya COVID-19 restructuring directives, whether the 1st Respondent fraudulently undervalued the property and breached its undertaking not to sell, and whether the trial Court unfairly dismissed his application by ignoring binding precedent and determining substantive issues at an interlocutory stage. 3. He maintains that the impugned decision, rendered on **19.11.2025** that is the subject of his appeal which raises arguable issues, effectively sanctioned the disputed sale despite his pending application seeking to restrain the 1st Respondent from exercising its statutory power of sale and preserve the suit property. 4. He therefore contends that, unless the 1st Respondent is restrained from taking further steps in furtherance of the impugned sale or evicting him from the suit property, the subject matter of the appeal will be defeated and he will lose possession of the property before the appellate Court determines his appeal. 5. **In riposte, the 1st Respondent** assails the grant of any injunctive relief(s) pending determination of the appeal on the grounds that the application is an abuse of the court process, frivolous, devoid of merit meanwhile the Applicant has failed to establish any legal or factual basis for restraining the 1st Respondent from acting on the sale conducted on 22.08.2025 or from taking possession of the suit property. 6. That the Applicant's entitlement to injunctive relief was conclusively determined by the lower Court in its ruling of 20.09.2024 which dismissed the Appellant’s initial application for injunction, having found that the Applicant had admitted default, that all statutory notices had been duly served, and that the 1st Respondent was lawfully entitled to exercise its statutory power of sale. 7. The 1st Respondent states that the Applicant did not appeal the latter ruling but instead filed a series of repetitive applications before the lower Court and the High Court seeking substantially similar injunctions, all of which were dismissed or struck out, culminating in the impugned lower Court's ruling of 19.11.2025 holding that the issue of injunction was *res judicata,* that there was no express or implied undertaking restraining the sale, and that the contempt application founded on the alleged undertaking lacked merit. 8. The 1st Respondent further contends that, there being no subsisting Court order restraining the exercise of the statutory power of sale, the suit property was lawfully sold by public auction on 22.08.2025, upon which the Applicant's equity of redemption was extinguished, rendering the prayers to restrain further action pursuant to the sale and to restrain eviction or interference with possession overtaken by events. 9. The 1st Respondent also argues that the Applicant has not sought to set aside the completed auction sale, making the present application legally misconceived whereas the appeal is not arguable, to wit, the Applicant's repeated applications constitute an abuse of the Court process intended solely to frustrate the 1st Respondent's lawful realization of its security. 10. Finally, the that the suit property, having been voluntarily offered as security, is a commodity of ascertainable value for which damages would be an adequate remedy, the 1st Respondent is financially capable of satisfying any award should the appeal ultimately succeed therefore the Applicant is not entitled to any injunctive reliefs pending appeal. 11. **In rejoinder, the Applicant** maintains that the purported sale of the suit property was unlawful, fraudulent and incapable of conferring any rights because it was conducted after the 3rd Respondent allegedly breached an implied undertaking that the property would not be sold, and because the 1st Respondent had, since 2020, pursued a fraudulent scheme by disregarding the Central Bank of Kenya COVID-19 Circulars, deliberately undervaluing the charged property to facilitate a sale at an undervalue, and acting in violation of the Applicant's constitutional property rights. 12. The Applicant further states that the ruling appealed against was rendered without proper jurisdiction and in disregard of binding precedent, **Article 40** of the **Constitution** and settled principles governing the exercise of judicial discretion, thereby enabling the Respondents to benefit from an unlawful process. 13. He maintains that acts undertaken in breach of a Court order or undertaking are null and void, that the Respondents have failed to controvert material facts deponed in his supporting affidavit, and that unless restrained from acting on the purported sale or interfering with his possession and quiet enjoyment of the suit property pending the appeal, the Respondents will continue to benefit from an unlawful process to his irreparable prejudice. 14. With the above rival deposition in reserve, concerning the condition requiring the successful applicant to demonstrate a *prima facie* case which condition also ties in with the requirement on the applicant to demonstrate that he has an arguable appeal, firstly, it is common ground that the Applicant charged suit property to the 1st Respondent as security for a loan facility, defaulted in repayment, and that the lower Court, by its ruling of 20.09.2024, dismissed the Applicant's initial application for an injunction. 15. Secondly, it is undisputed that no appeal was lodged against the latter ruling, and that the Applicant subsequently filed a series of applications both before the lower Court and the High Court seeking, among other reliefs, injunctive orders relating to the suit property, and that the suit property was eventually sold by public auction on 22.08.2025 before the motion before this Court, was filed. 16. Thirdly, it is also common ground that the Applicant's present appeal arises from the lower Court's ruling rendered on 19.11.2025, and that no prayer has been made in the present application to set aside the completed auction sale of the suit property. 17. Therefore, it can be reasonably deducted that the dispute concerns the legal consequences in respect of the sale of the suit property, the existence and effect of the alleged undertaking, the propriety of the 1st Respondent's post-sale actions, and whether the Applicant has satisfied the threshold for the grant of injunctive relief pending appeal under **Order 42** **Rule 6(6)** of the **CPR**. 18. Given the aforestated, cursory review of the material evinced in the support of the Applicant’s motion, the suit property has since already been sold therefore in my view any relief(s) pertaining to the suit property by way of injunction would reasonably be deemed to have been overtaken by events. 19. Further, it warrants reminder that the scope of this Court interrogation is limited to Order **42** **Rule 6(6)** of the **CPR** as to whether this Court ought to grant any injunctive relief pending hearing and determination of the Applicant’s appeal. 20. That said, as earlier noted in this ruling, the Applicant has neither sought before lower Court vide his motions that were the subject of the ruling rendered on 19.11.2025 and or vide the relief(s) in his amended plaint, the setting aside or declaration of illegality in respect of the public auction conducted on 22.08.2025. 21. Equally, the ruling rendered on 20.09.2024 dismissing the Applicant's initial application for an injunction has not been appealed. Whereas, as cursory review of the Applicant’s motions dated 29.08.2025 & 09.09.2025 **(Annexure JA10 & JA11)**, attached to the 1st Respondent response, despite my preceding sentiments, I note that the Applicant had sought reliefs touching on the suit property either by way of declaring the sale a nullity or stop the completion of the sale. 22. In my view the latter reliefs appeared to be pegged on issues concerning breach of a purported undertaking, contempt, recusal of the Court and an order seeking to transfer the matter to the High Court. Glaringly, I also note that neither of the aforestated reliefs were hinged on the substance of the suit but more towards the preservation of the dignity and authority of the Court. 23. In light of the earlier facts, it is not in dispute that the suit property has an ascertainable value, to wit, as rightly argued by the 1st Respondent, damages would be an adequate remedy. Secondly, it is trite that breach of an undertaking by an advocate is a cause of action unto itself of which the Applicant can pursue a claim for professional misconduct or quantifiable damages as a consequence of the said breach of an undertaking. 24. Thirdly, contempt as a measure of preservation of the dignity and authority of the Court can be pursued autonomously without having to pivot the same on a declaration of nullity of the sale in respect of the suit property on contempt proceedings. Therefore, the totality of the above dovetails on the reconcilable conclusion that the Applicant has not demonstrated a *prima facie* case as to the existence *“of a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter”*(see **Nguruman**’s case). 25. As earlier observed, this finding would equally apply to the question whether the Applicant has an arguable appeal which may be rendered nugatory if the orders sought are denied. In **Stanley Kang’ethe Kinyanjui v Tony Keter & 5 Others [2013] eKLR**the Courts put itthat**-**: ***“The first issue for our consideration is whether the intended appeal is arguable. This court has often stated that an arguable ground of appeal is not one which must succeed but it should be one which is not frivolous, a single arguable ground of appeal would suffice to meet the threshold that an intended appeal is arguable”.*** 1. Whereas, in**Denis Mogambi Mong’are V. Attorney General & 3 Others Civil Appeal No. Nairobi 265 of 2011 (UR 175/2011)**the same Court stated that: ***“An arguable appeal is not one that must necessarily succeed, it is simply one that is deserving of the court’s consideration.”*** 1. Besides, at the risk of repetition, the value of the suit property is ascertainable, to wit, the Applicant can accordingly amend his pleadings before the lower Court to either challenge the purported sale or seek an award of damages as reasonably compensate to him. Thus, it is hard to see how the appeal would be rendered nugatory. In**George Gathura Karanja v George Gathuru Thuo & 2 Others [2019] eKLR,**the Court of Appeal stated that**:** ***“[A]n appeal/intended appeal is said to be rendered nugatory where the resulting effect is likely to be irreversible. See the case of Stanley Kang’ethe Kinyanjui versus Tony Ketter & 5 Others, Civil Appeal No. 31 of 2012 where this Court stated inter alia thus:*** ***“Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is irreversible, or if it is not reversible whether damages will reasonably compensate the aggrieved party.”*** 1. Correspondingly, it seems to me that granting the prayers sought would inflict more hardship than it would avoid. If the orders sought were granted, the same would adversely affect the rights of the bona fide purchaser for value without notice in respect of the suit property. The Court of Appeal in **Madhupaper International Limited v Kerr [1985] KLR 840**held that: ***“The Court of Appeal’s jurisdiction to grant an injunction pending an appeal is discretionary and is to be exercised judicially and not arbitrarily. It would be wrong to grant the injunction where the appeal is frivolous or where to grant it would inflict greater hardship than it would avoid. In this case, to grant an injunction pending appeal would be wrong as it would probably inflict greater hardship than it would avoid.”*** 1. In **Charter House Investments Ltd. V Simon K. Sang & 3 Others (2010) eKLR**, the Court of Appeal stated: - ***“Injunction is an equitable and discretionary remedy, given when the subject matter of the case before the Court requires protection and maintenance of the status quo. The award of a temporary injunction by Courts of equity has never been regarded as a matter of right even where irreparable injury is likely to result to the applicant. It is a matter of sound judicial discretion, in the exercise of which the Court balances the convenience of the parties and possible injuries to them and to third parties.”*** 1. The upshot and upon reviewing all the material placed before me, the Court is not persuaded by the Applicant’s motion, to wit, it is hereby dismissed with costs to the 1st Respondent. 2. **Orders Accordingly!** **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JULY, 2026** **HON. L. P. KASSAN** **JUDGE**