Shah & another v Diamond Trust Bank of Kenya Ltd & another (Civil Application E466 of 2025) [2026] KECA 704 (KLR)
The bottom line
#The Court of Appeal refused to stop Absa Bank from acting on its sale notice because the family home can be valued and compensated with money 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 intended appeal is arguable
- 2.Whether the intended appeal, if successful, would be rendered nugatory if stay is not granted
- 3.Whether the existence of interim orders in the fresh ELC suit renders the orders sought unnecessary
Key legal issues
#Arguability of the intended appeal on the tacking and consolidation of charges
The ground that the charge could not operate as a continuing security for facilities extended to the interested party without the applicants' authority is not frivolous and is arguable.
Applying the low threshold from Stanley Kangethe Kinyanjui v Tony Ketter, the Court found the intended ground on tacking/consolidation and the continuing-security character of the 2018 charge worthy of full argument, even though it may not succeed. Arguability alone, however, is insufficient where the second limb fails.
Whether the appeal would be rendered nugatory without stay
It would not: the charged property's value is determinable and damages and restitution are available against a bank able to pay.
The dispute concerns exercise of the statutory power of sale over charged land whose value is ascertainable. The matrimonial-home characterisation does not by itself preclude compensation. The nugatory test asks whether what is to be stayed is reversible or compensable in damages; here both restitution and damages are available and the respondent's ability to pay is not contested.
Effect of parallel conservatory orders obtained in the ELC suit
Because the applicants already enjoy conservatory orders in the fresh Environment and Land Court proceedings, there is no present danger of sale and the orders sought are unnecessary.
The Court found the applicants were enjoying conservatory orders from ELC Case No. E318 of 2025, so the property was not in present danger of sale. It invoked the principle that discretionary orders are for applicants who intend to benefit instantly, not contingently on future happenings such as the lapse, variation or discharge of the ELC orders.
Legal principles established
#- For an applicant to benefit from rule 5(2)(b) relief both conditions - an arguable appeal and nugatory-ness - must be satisfied; failure of one disentitles the applicant
- An arguable appeal is one that is not frivolous and need not necessarily succeed
- The mere allegation that charged property is matrimonial property does not automatically entitle an applicant to an injunction pending appeal; adequacy of damages is assessed on the facts
- Discretionary orders will not be granted where the benefit is contingent on future happenings rather than instant
Court orders
#- 1.The application dated 20th June 2025 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (Milimani)
- HCCC No. E387 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules - stay of execution pending (intended) appeal
Relief refused
#Injunction/stay restraining the respondent from disposing of or transferring the suit property on the basis of the 45 days redemptive notice pending the hearing and determination of the appeal
Although one limb (arguability) was satisfied, the appeal would not be rendered nugatory since damages and restitution are available and the property's value is determinable; further, the applicants already enjoy conservatory orders in a fresh ELC suit, making the orders sought unnecessary
Costs
Application dismissed with costs to the 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.
The failure to satisfy one condition disentitles an applicant to the relief sought.
The mere allegation that a property tendered as security is matrimonial property does not automatically entitle an applicant to an injunction pending an appeal.
In applications such as the one before us, discretion ought to be exercised in favour of a party intending to benefit instantly and not where its benefit is contingent upon future happenings.
In the foregoing premises, we find no merit in this application which we hereby dismiss with costs to the respondent.
Issues in the judgment
#The judgment contains conflicting dates for the filing of the Notice of Appeal: the applicants' account says 2nd May 2025, while the respondent's account and submissions say 22nd April 2025.
The respondent's replying affidavit states judgment was entered on 22nd April 2025 in the ELC matter, while the applicants state the trial court (High Court) dismissed the suit on 2nd April 2025; the judgment does not clearly reconcile these dates.
The names of the parties are not fully stated in the judgment text provided; the respondent and 2nd applicant are referred to only by role and deponent names.
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.
- Gilgil Treatment Industries Ltd v Bank of India & another (Civil Application E052 of 2026) [2026] KECA 1556 (KLR)[2026] KECA 1556 (KLR)31 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Shah & another v Diamond Trust Bank of Kenya Ltd & another (Civil Application E466 of 2025) [2026] KECA 704 (KLR)", Case Analysis (2026). Application dated 20th June 2025 (rule 5(2)(b) application in intended appeal from Milimani HCCC No. E387 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/704/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.