Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCourt of Appeal Application No. E- (not stated in judgment; arises from Nairobi HCCOMM No. 034 of 2022)

Gituma v Housing Finance Company Limited & 3 others (Civil Application E301 of 2024) [2025] KECA 1765 (KLR)

Court of Appeal
24 October 2025
1,776 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to block the sale or transfer of a Mombasa property because the owner couldn't show money couldn't fix things if she won on appeal.

What this practically means

#

Executive summary

#
The applicant, Rosemary Kinanu Gituma, sued the Housing Finance Corporation and others in the High Court at Milimani (H. Com. No. 034 of 2022) seeking injunctions over property known as Shanzu Villas No. 8 on LR No. 1870/III/450, which had been sold by public auction in exercise of the 1st respondent's power of sale. Her interlocutory injunction application was dismissed by Frida Mugambi, J on 22nd September 2023 on the ground of res judicata, and her application for stay of that ruling was likewise dismissed. She then lodged a notice of appeal and filed the present notice of motion under Rule 5(2)(b) of the Court of Appeal Rules seeking injunction, inhibition against the Chief Land Registrar, and stay of proceedings pending appeal. The respondents opposed, contending the appeal was not arguable and that in any event the 1st respondent, a reputable financial institution, could refund the purchase price if the appeal succeeded. A bench of Karanja, M'Inoti and Nyamweya, JJA, in a single unanimous ruling, declined to pronounce on the propriety of the auction or the res judicata finding, since doing so would determine the substantive appeal. Applying the twin Rule 5(2)(b) threshold, the Court held that even if the appeal were arguable, the nugatory aspect had not been demonstrated, as the applicant failed to controvert the respondents' evidence of capacity to refund. The Court dismissed the application with costs to the 1st, 2nd and 3rd respondents. The decision affirms that both arguability and nugatory effect must be shown for relief under Rule 5(2)(b).

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable (not frivolous)
  2. 2.Whether the appeal, if successful, would be rendered nugatory unless the injunction/stay sought is granted

Key legal issues

#
01

Whether the applicant met the Rule 5(2)(b) threshold of arguability and nugatory effect

Holding

The application fails because, even assuming arguability, the nugatory aspect was not demonstrated; the 1st respondent was not controverted as being able to refund the purchase price.

Reasoning

The Court reiterated the twin requirements under Rule 5(2)(b): an arguable appeal and nugatory effect. Arguability means the appeal is not frivolous and raises a bona fide issue; even one bona fide issue suffices. The applicant did not identify the errors in the High Court's res judicata finding, addressing instead substantive issues still pending before the trial court. On the nugatory limb, the applicant did not rebut the respondents' evidence that the 1st respondent, a reputable bank, could refund her money if the appeal succeeded, so refusal of the relief would not render the appeal nugatory.

p. 4
02

Whether the Court could determine the propriety of the public auction at the interlocutory stage

Holding

No; the Court declined to expound on the res judicata finding or the legality of the auction, as doing so would determine the substantive appeal.

Reasoning

The intended appeal targets only the High Court's finding that the applicant's injunction application was res judicata; the main suit remains pending. Counsel for the applicant argued the merits of the auction (undervaluation, no statements of account), which are matters for the trial court. The Court held it could not make findings on whether the auction was properly conducted without deciding the substantive appeal, so it eschewed expounding on that question at the interlocutory stage.

p. 4

Legal principles established

#
  • To obtain relief under Rule 5(2)(b), an applicant must satisfy the Court that the intended appeal is arguable and that, if the relief is not granted and the appeal succeeds, the appeal will be rendered nugatory; both limbs must be demonstrated.
  • An appeal is arguable if it is not frivolous and raises a bona fide issue deserving full consideration; a single bona fide issue suffices.

Court orders

#
  1. 1.Dismissal of the notice of motion dated 14th June 2024 seeking injunction, inhibition and stay pending appeal
  2. 2.Costs of the application awarded to the 1st, 2nd and 3rd respondents

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya, Milimani Commercial Court
H. Com. No. 034 of 2022
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution, injunction and inhibition pending appeal)

Relief refused

#

Order of injunction restraining the 1st–3rd respondents from dealing with, disposing of, selling or interfering with the title of property Shanzu Villas No. 8 on LR No. 1870/III/450

Applicant failed to demonstrate both arguability and the nugatory aspect required under Rule 5(2)(b)

p. 4

Order of inhibition restraining the Chief Land Registrar from registering any caveat, caution, transfer, subdivision, charge, mortgage or other transaction on the suit property

Same failure to meet the Rule 5(2)(b) threshold

p. 4

Order of stay of further proceedings and consequential orders/decree in Nairobi HCCOMM No. 034 of 2022

Same failure; the nugatory aspect was not demonstrated as the 1st respondent was not controverted as being able to refund the purchase money

p. 4

Costs

Costs of the application awarded to the 1st, 2nd and 3rd 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.

To entitle the applicant to the order of stay of execution or injunction as sought here, the applicant is obliged to satisfy us that her intended appeal is arguable and that if we do not grant the injunction and the appeal succeeds, it will be rendered nugatory.
p. 4Rule 5(2)(b) twin threshold
To say that an appeal is arguable is another way of saying that it is not frivolous and that it raises a bona fide issue deserving full consideration by the Court.
p. 4Meaning of arguability
Even one bona fide issue will satisfy the requirement, for the law does not look for a multiplicity of arguable issues.
p. 4Single bona fide issue suffices
Accordingly, we dismiss it with costs to the 1st, 2nd and 3rd respondents.
p. 4Final orders - dismissal with costs

Issues in the judgment

#
minor

The case number of the application before the Court of Appeal is not stated anywhere in the judgment, and the quoted prayer list contains duplicated lettering ('c.' twice and no 'd'), suggesting transcription irregularities.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gituma v Housing Finance Company Limited & 3 others (Civil Application E301 of 2024) [2025] KECA 1765 (KLR)", Case Analysis (2025). Court of Appeal Application No. E- (not stated in judgment; arises from Nairobi HCCOMM No. 034 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1765/eng@2025-10-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.