Moses Kibiego Yator v Eco-Bank Kenya Limited & 2 others [2019] KECA 115 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once a repossessed property is sold and registered to a new owner, the former owner's remedy is damages, not an injunction.
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 learned Judge erred in finding that the appellant had not demonstrated irreparable loss despite finding a prima facie case
- 2.Whether breaches of law in the exercise of the statutory power of sale constitute irreparable loss compensable only by injunction
- 3.Whether the Court of Appeal should interfere with the exercise of discretion by the learned Judge in refusing the injunction
Key legal issues
#Interference with exercise of discretion on appeal
The Court of Appeal is extremely slow to interfere with a first-instance discretionary decision and will do so only where an error of principle is established.
The Court adopted the classic test in United India Insurance v East African Underwriters, as refined in Mbogo v Shah: interference is warranted only where the judge misdirected himself in law, misapprehended the facts, took into account matters he should not have, failed to take account of relevant considerations, or was plainly wrong. Finding none of these defects, the Court declined to substitute its own view.
Whether breach of law constitutes irreparable loss
The Court rejected the appellant's contention that breaches of law in conducting the sale automatically amount to irreparable loss; where transfer has occurred, damages suffice.
The appellant relied on Palmy Company and Mosiomo for the proposition that breach of the law constitutes irreparable damage. The Court found instead that the sale and transfer had already occurred and the third respondent was the registered owner; the purchaser appeared protected under section 99 of the Land Act, and the chargor's remedy lay only in damages.
Sequencing of the Giella principles
Once failure to demonstrate irreparable loss was found, the balance of convenience fell away and need not be considered.
Responding to counsel's submission that the Giella v Cassman Brown conditions must be applied sequentially, the Court confirmed that where irreparable loss is not shown at the second stage, the analysis need proceed no further. The learned Judge therefore did not err in stopping at the irreparable loss stage.
Legal principles established
#- An appellate court will not interfere with a discretionary decision of the lower court unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong.
- Establishing a prima facie case alone does not entitle an applicant to an interlocutory injunction; the applicant must also demonstrate irreparable loss which damages cannot compensate, and only then consider the balance of convenience.
- Where land has already been sold, transferred and registered in the name of a purchaser following a chargee's exercise of the statutory power of sale, the chargor's remedy for any loss lies only in damages.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Eldoret
- Eldoret ELC No. 426 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over an interlocutory appeal from the Environment and Land Court (appeal from ruling and order of Ombwayo, J.)
Relief refused
#Setting aside the ruling and order of Ombwayo, J. and allowing the injunction application as prayed
The Judge committed no error of principle in finding no irreparable loss; the Court would not interfere with the exercise of discretion
Costs
Appeal dismissed with costs to the respondents.
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.
As an appellate court, we are extremely slow to interfere with a first instance court’s decision that lies in its discretion, and it matters not that had we been dealing with the matter ourselves, we might have arrived at a different decision.
Once the learned Judge found that irreparable loss had not been demonstrated, he did not have to consider balance of convenience.
In consequence, this appeal is devoid of merit and it is accordingly dismissed with costs.
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.
- Imala v Impact Investments Ltd & 5 others (Land Case E183 of 2024) [2026] KEELC 4430 (KLR)[2026] KEELC 4430 (KLR)15 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Moses Kibiego Yator v Eco-Bank Kenya Limited & 2 others [2019] KECA 115 (KLR)", Case Analysis (2019). Civil Appeal No. 90 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/115/eng@2019-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.