Shimmers Plaza Limited v National Bank of Kenya Ltd [2013] KECA 359 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a bank selling Shimmers Plaza's property, ruling that only express prayers can be granted and negative orders cannot be stayed.
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 intended appeal is arguable
- 2.Whether the intended appeal would be rendered nugatory if stay or injunction is not granted
- 3.Whether the court can grant an injunction or maintenance of status quo where no such prayer is expressly sought in the notice of motion
- 4.Whether a negative order (dismissal of an application) is capable of being stayed
Key legal issues
#The twin test for relief under Rule 5(2)(b)
The applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory without the order sought; the applicant satisfied the arguability limb but not the nugatory limb.
The court accepted that issues on the verification certificate, accuracy of accounts and variation of security were arguable. However, on the nugatory limb, the charged property could be valued and the applicant compensated in damages; mere embarrassment at realization of security does not suffice. Both limbs must be established, so the application failed.
Whether an injunction can be granted where not expressly prayed for
The court cannot grant an injunction or maintenance of status quo where the notice of motion contains no such express prayer, even where a general 'liberty to apply' prayer exists.
Relying on Stanbic Bank v KRA, the court held that Rule 5(2)(b) permits only three orders and its inherent powers revolve around those. Interpreting the general 'liberty to apply' prayer to include an injunction or status quo would go beyond the rule. The Western College case confirms the court has no general inherent jurisdiction.
Whether a negative order can be stayed
A negative order — the dismissal of an application — is not capable of stay; there is nothing to stay.
The superior court had dismissed the applicant's chamber summons for injunction. Applying Republic v Kenya Wildlife Services, the court noted the superior court ordered no party to do or refrain from doing anything. A stay lies against positive, enforceable orders only, so the application for stay was incompetent in that respect.
Conduct of the debtor in exercising discretion
A party that has shown no willingness to repay the debt cannot invoke the court's discretion for injunctive relief.
Only three of thirty agreed instalments (plus Ksh.10 million under court order) had been paid since 1996, totalling Ksh.32.5 million of a Ksh.150 million loan. The court noted the applicant received monthly rent of Ksh.2.6 million from the property without making efforts to repay, and declined to exercise discretion in its favour.
Legal principles established
#- An application under Rule 5(2)(b) requires the applicant to show both that the appeal is arguable and that it would be rendered nugatory absent stay or injunction; both limbs must be satisfied.
- Under Rule 5(2)(b) the Court of Appeal can only make three orders: stay of proceedings, stay of execution, and an injunction; it cannot craft a prayer not sought in the notice of motion.
- A negative order, such as the dismissal of an application, is not capable of being stayed.
- No amount of embarrassment, however great, will operate against the exercise of a statutory power of sale by a mortgagee.
- Where a charged property is capable of valuation and the applicant can be compensated in damages, an injunction restraining sale will not issue and the appeal will not be rendered nugatory.
Court orders
#- 1.The application lodged in the Court on 8th February 2012 is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 895 of 2009
- Jurisdiction invoked
- Section 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules (application for stay pending intended appeal)
Relief refused
#Stay of execution of the superior court's ruling and/or order in HCCC No. 895 of 2009 pending the intended appeal
The superior court made a negative order (dismissal of the applicant's injunction application) which is not capable of stay, and the nugatory-prong was not satisfied
Injunctive orders restraining the respondent from advertising, disposing of or selling the suit property
No express prayer for an injunction was made in the notice of motion, and the court cannot grant a prayer not sought; further, damages would be an adequate remedy and the statutory power of sale cannot be restrained on grounds of embarrassment
Maintenance of status quo ante
The application did not seek that the status quo be maintained and the court cannot extend Rule 5(2)(b) powers to create a prayer not sought
Costs
Application 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.
In the result we dismiss the application lodged in the Court on 8th February 2012, with costs to the respondent.
An applicant is obligated to show, firstly, that his appeal or intended appeal is arguable. And secondly, that unless he is granted an injunction or stay as the case may be, his appeal or intended appeal, if successful, will be rendered nugatory
This Court finds that the superior court made a negative order that is not capable of stay.
We cannot extend those powers to the realm of creating a prayer not sought in the notice of motion and proceed to grant it
The respondent's statutory power of sale has arisen and cannot be stopped on account of embarrassment to be occasioned to the defaulter by virtue of realization of the security.
Issues in the judgment
#The judgment states the 'respondent' paid only three instalments, but the context and earlier paragraphs make clear it was the borrower/applicant side that failed to repay the loan
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.
- Singh v Kingorani Investment Ltd (Land Case E015 of 2025) [2026] KEELC 4592 (KLR)[2026] KEELC 4592 (KLR)20 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Shimmers Plaza Limited v National Bank of Kenya Ltd [2013] KECA 359 (KLR)", Case Analysis (2013). Civil Application No. NAI 38 of 2012 (UR 25/2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/359/eng@2013-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.