Bare v Img Media/Image-1.Jpg}}Aima Enterprises Limited & 3 others (Civil Application E079 of 2025) [2025] KECA 1930 (KLR)
The bottom line
#Kenya's Court of Appeal refused to block a bank from selling charged property, holding damages against a regulated financial institution are an adequate remedy.
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 appeal would be rendered nugatory if the orders sought (injunction restraining sale of LR No. 209/11095/95) are not granted
- 3.Whether the prayer for stay of taxation proceedings before the High Court meets the threshold for grant under Rule 5(2)(b)
Key legal issues
#Arguability of the intended appeal
The intended appeal, raising among other grounds that the suit was struck out on a preliminary objection without a formal application or hearing, is not frivolous and is therefore arguable
The draft memorandum of appeal contained 12 grounds, including that the Judge struck out the suit on a preliminary objection without a formal application, without according the applicant an opportunity to respond, and pre-empted the Court of Appeal on jurisdiction. Applying the Kinyanjui v Ketter principles, the Court accepted that an arguable appeal need not necessarily succeed and found the appeal not frivolous.
Nugatory aspect and adequacy of damages
The applicant failed to demonstrate that the appeal would be rendered nugatory because damages are an adequate remedy against a regulated financial institution capable of paying them
Although the applicant asserted the property was worth Kshs. 100 million and he would be dispossessed, the 3rd respondent's uncontroverted position that it is a regulated financial institution capable of defraying an award of damages, and the remedy of damages under Section 99(4) of the Land Act for wrongful auction, meant the nugatory test was not satisfied.
Stay of taxation proceedings
The application did not meet the high threshold for a stay of proceedings under Rule 5(2)(b)
Relying on Katangi Developers Limited v Prafula Enterprises Limited and Lalita Devi Lalchand Galot v Mohan Galot, the Court held that the applicant had not met the high threshold required to justify a stay of taxation proceedings before the High Court.
Legal principles established
#- An arguable appeal under Rule 5(2)(b) is not one that must necessarily succeed; it need only not be frivolous
Court orders
#- 1.The application dated 12th February 2025 is dismissed
- 2.Costs of the application to the 3rd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay and injunction pending intended appeal); delivery under Rule 34(4) following the death of a member of the bench
Relief refused
#Temporary injunction restraining the 3rd respondent from selling, disposing of or otherwise dealing with LR No. 209/11095/95 (IR 79735) pending the intended appeal
The applicant did not demonstrate that the appeal would be rendered nugatory; damages are an adequate remedy since the 3rd respondent is a regulated financial institution capable of defraying an award of damages
Stay of taxation proceedings before the High Court
The application did not meet the high threshold for stay of proceedings set out in the cited authorities
Costs
The application is dismissed with costs to the 3rd 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 end, the application dated 12th February 2025 fails. Accordingly, it is dismissed with costs to the 3rd respondent.
Appreciating, as we do, that an arguable appeal is not one that will necessarily succeed, we are prepared to say that the intended appeal is not frivolous.
we are not persuaded that the applicant has demonstrated that the appeal will be rendered nugatory if we decline to grant the orders sought.
Issues in the judgment
#The judgment does not state the appeal or application number, the names of the parties, or the title of the case; the coram names appear only as signatures
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bare v Img Media/Image-1.Jpg}}Aima Enterprises Limited & 3 others (Civil Application E079 of 2025) [2025] KECA 1930 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1930/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.