Gakuru v National Industrial Credit Bank Limited (Civil Appeal 84 of 2001) [2002] KECA 274 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a bank to pursue selling a borrower's land because he admitted the debt but made no effort to repay it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the sub-divided parcels L.R. Nos. 3734/1141 and 3734/1143 remained subject to the Charge over the original title L.R. 3734/750 as continuing security
- 2.Whether the respondent bank had any statutory power of sale over the suit parcels in respect of the second loan of Shs. 4.6 million for which no fresh charge was executed
- 3.Whether the learned Judge erred in refusing an interim injunction and whether the appellate court should interfere with that discretionary decision
Key legal issues
#Whether the charge over the mother title operated as continuing security over the sub-divided parcels
The court declined to make concluded findings since the suit was untried, but noted it was manifest and undenied that the mother title was charged and that partial discharges, not a full discharge, had released only two of the four sub-divided parcels.
The charge contained Recital B clauses stipulating that the security was continuing for all sums advanced from time to time. Partial discharges enabled parcels 1140 and 1142 to pass to third parties, but no similar discharge covered the two suit parcels. The court refrained from expressing concluded views on issues for trial, but observed the appellant had not repaid the second loan of Shs. 4.6 million.
Whether the High Court's refusal of an interim injunction should be disturbed on appeal
The refusal was a proper exercise of judicial discretion and the appeal against it failed.
Interim injunctions are equitable remedies; the appellant's open conduct in admitting the second loan and making no attempt to liquidate it without reasonable cause rendered him undeserving of equitable relief. The appellant did not demonstrate how the learned Judge could be faulted in his ruling, so the appellate court would not interfere with the discretionary decision.
Legal principles established
#- An appellate court will not interfere with the grant or refusal of an interim injunction, an exercise of judicial discretion, unless it is shown that the discretion was not exercised judicially.
- A party whose own conduct shows he is undeserving of equitable relief, such as a borrower who makes no attempt to repay an admitted loan, will be denied an injunction.
Court orders
#- 1.The appeal is dismissed
- 2.The appellant to pay the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal against an interlocutory ruling of the High Court (statutory appellate jurisdiction; no specific provision cited in the judgment)
Relief refused
#Interim injunction restraining the respondent bank from selling or dealing with L.R. Nos. 3734/1141 and 3734/1143 pending trial
The appellant, having taken the second loan and made no attempt to repay it, was undeserving of equitable relief; the Judge's discretion was not shown to have been exercised injudiciously
Costs
The appeal was dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is trite that the granting of an interim injunction is an exercise of judicial discretion and an appellate court will not interfere unless it be shown that that discretion has not been exercised judicially.
the injunction that was sought by the appellant, being an equitable remedy, should not issue in his favour as he demonstrated openly by his conduct that he was undeserving of the equitable relief.
In the result this appeal fails and is accordingly dismissed with costs.
Issues in the judgment
#The copy of the judgment contains garbled/corrupted text in places (e.g. the description of the property location and counsel's name are illegible), and the appeal number and neutral citation are not stated.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Standard Chartered Financial Services Limited v Manchester Outfitters (Suiting Division) Limited Now Called King Woolen Mills Limited & 2 others[2025] KESC 68 (KLR)14 Nov 2025followed
Cite this brief
#Cite this brief
Caselaw, "Gakuru v National Industrial Credit Bank Limited (Civil Appeal 84 of 2001) [2002] KECA 274 (KLR)", Case Analysis (2002). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/274/eng@2002-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.