Commercial Bank of Africa v Hezekiah Kipkorir Maritim & 10 others [2019] KECA 796 (KLR)
The bottom line
#Kenya's Court of Appeal protected families living on charged land, ruling that people in occupation can challenge a bank's sale even without registered title.
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 respondents had locus standi to challenge the appellant's statutory power of sale
- 2.Whether the trial court misdirected itself in making findings on the balance of convenience after finding no prima facie case or irreparable harm
- 3.Whether the Court of Appeal should interfere with the trial court's discretionary order maintaining status quo over the suit property
Key legal issues
#Locus standi of persons in occupation claiming purchaser's interests to challenge a chargee's statutory power of sale
The respondents had locus standi to challenge the intended sale as they were in occupation and had a bona fide claim
The respondents asserted they individually purchased portions of the suit property from Tenai and Kurgat and lived on the land with their families. No evidence was led to contradict their assertions of occupation. Although occupational rights ordinarily do not override those of a registered owner, the respondents' claim was bona fide and capable of defeating the appellant's claim, entitling them to be heard by the trial court.
Whether a court may consider the balance of convenience after finding no prima facie case
The Court upheld the trial court's discretion; it found the respondents had a prima facie case, mooting the concern about sequencing
The appellant argued that having found no prima facie case or irreparable harm, the trial court should not have proceeded to the balance of convenience. The Court of Appeal found the respondents had a prima facie case and were in occupation, that irreparable harm would follow if the property were sold and the respondents proved their claim, and that the balance of convenience favoured the respondents. It therefore declined to disturb the discretionary order.
Interference with discretionary decisions on appeal
An appellate court will not interfere with the exercise of discretion by the trial court merely because it would have reached a different conclusion
Relying on established authority, the Court reiterated that a discretionary decision may be disturbed only on the established grounds: misdirection in law, misapprehension of facts, consideration of irrelevant or omission of relevant matters, or a plainly wrong decision. Finding none of these defects in the trial court's ruling, the Court declined to interfere and dismissed the appeal.
Legal principles established
#- The Court of Appeal will not interfere with a trial court's exercise of discretion unless it misdirected itself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or its decision is plainly wrong
- An applicant for an interlocutory injunction must establish a prima facie case, demonstrate irreparable injury, and show that the balance of convenience lies in his favour, sequentially
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The costs of the appeal shall be costs of the trial of the suit
- 3.The suit in the ELC shall be heard on priority basis
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Eldoret
- E&L Case No 361 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statutory framework (judgment does not cite a specific provision)
Relief refused
#The appellant's prayer to set aside the interlocutory injunction/order maintaining status quo
The Court found the trial court properly exercised its discretion and declined to interfere
Costs
The costs of the appeal shall be costs of the trial of the suit.
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.
We are minded to find that the respondents did indeed have locus standi to challenge the intended sale, and that they had a bona fide claim that should be entertained by the trial court.
We find that the respondents have a prima facie case and have therefore satisfied the first limb for the grant of an order of injunction.
The balance of convenience tilts in favour of the respondents.
In our view, the trial court properly exercised its discretion and we therefore decline the appellant’s invitation to interfere with it.
In the result, this appeal fails in its entirety. It is hereby dismissed. The costs of the appeal shall be costs of the trial of the suit. The suit in the ELC shall be heard on priority basis.
Issues in the judgment
#The trial court found the respondents had neither a prima facie case nor irreparable harm, yet allowed the application on the balance of convenience/status quo; the appellate court nonetheless found a prima facie case was established, departing from the trial court's stated finding while affirming its order
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.
- Ondimu v Lake Turkana Windpower (Cause E001 of 2024) [2025] KEELRC 1745 (KLR)[2025] KEELRC 1745 (KLR)13 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Commercial Bank of Africa v Hezekiah Kipkorir Maritim & 10 others [2019] KECA 796 (KLR)", Case Analysis (2019). Civil Appeal No 82 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/796/eng@2019-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.