Waweru v Matumaini Ventures Limited & 21 others (Civil Application E273 of 2025) [2025] KECA 1948 (KLR)
The bottom line
#The Court of Appeal refused to block the sale of land worth KShs. 265 million because money damages from a bank could adequately compensate the buyer if the appeal later succeeds.
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 appeals or intended appeals are arguable
- 2.Whether the appeals would be rendered nugatory if the temporary injunction is not granted
- 3.Whether the doctrine of privity defeats the appeals as against the 2nd, 4th, 5th and 7th respondents
Key legal issues
#Arguability of the appeals
The appeals are doubtful as against the 2nd, 4th and 5th respondents on the doctrine of privity, and as against the 7th respondent who holds a lawful charge over the suit property
The trial court found the 2nd respondent was not party to the sale contract and had no proprietary interest; the property was lawfully transferred to the 5th respondent and lawfully charged to the 7th respondent for USD 1,100,000. The court saw no basis for an arguable appeal against parties who are strangers to the contract or lawful chargees.
Nugatory-ness and adequacy of damages
Even if arguable, the appeals would not be rendered nugatory because the suit property's value is known and the 7th respondent, a reputable commercial bank, can compensate the appellants in damages
The suit property is valued at Kshs. 265 million and can be re-valued before sale. The 7th respondent is a reputable financial institution able to pay damages if the appeals succeed. The nugatory limb therefore fails independently of the arguability limb.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin tests that the appeal is arguable and that it will be rendered nugatory unless the orders sought are granted
Court orders
#- 1.The notice of motion dated 30th April 2025 seeking a temporary injunction is dismissed
- 2.Costs of the application awarded to the 2nd, 5th and 7th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Machakos
- ELC No. 58 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (interlocutory relief pending appeal)
- Consolidated with
- Civil Appeal No. E648 of 2024, Civil Appeal No. E753 of 2024
Relief refused
#Temporary injunction restraining the 5th and 7th respondents from advertising for sale, selling, transferring, charging or interfering with title to LR. 15324 pending appeal
The applicant failed to establish both limbs of the rule 5(2)(b) test: the appeals are doubtful as against the 2nd, 4th, 5th and 7th respondents on privity grounds, and the applicant can be compensated in damages by a reputable commercial bank
Costs
Application dismissed with costs to the 2nd, 5th and 7th 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.
In an application made under rule 5(2)(b) of this Court’s Rules, an applicant has to demonstrate that the appeal or intended appeal is arguable, and that unless the Court grants the orders sought, the appeal, if successful, shall be rendered nugatory.
But even if we were to hold that the appeals are arguable, we are not satisfied that they would be rendered nugatory if the orders sought are not granted.
Consequently, we find this application unmeritorious and dismiss it with costs to the 2nd, 5th and 7th respondents.
Issues in the judgment
#The judgment states conflicting dates for the dismissal of the trial suit: paragraph 2 says 28th September 2023 while the 2nd respondent's affidavit in paragraph 6 says 23rd September 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waweru v Matumaini Ventures Limited & 21 others (Civil Application E273 of 2025) [2025] KECA 1948 (KLR)", Case Analysis (2025). Not stated in the judgment (arising from Civil Appeal No. E648 of 2024 and E753 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1948/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.