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Case Brief · caselaw.co.ke
Court of AppealDismissedNotice of motion dated 2nd April, 2026 (Court of Appeal application under rule 5(2)(b))· [2026] KECA 1030 (KLR)

Home Afrika Limited v I&m Bank Limited & 1 other

Court of Appeal of Kenya
29 May 2026
2,598 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to stop I&M Bank from selling a guarantor's property, holding that merely disputing the debt amount is not enough.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kimaru, Njuguna and Okello, JJA) dated 29th May, 2026 on a notice of motion dated 2nd April, 2026 brought under rule 5(2)(b) of the Court of Appeal Rules, 2022. The applicant, a guarantor of loan facilities advanced by I & M Bank Ltd to Mitini Scapes Development Limited and a chargor over Unit No. 2 on the 5th floor of Morning Side Office Park on L.R. No. 2/704, sought a temporary injunction restraining the bank from exercising its statutory power of sale pending an intended appeal against a High Court ruling of 19th March, 2026 dismissing its injunction application on the basis that the principal borrower's indebtedness had been admitted. Applying the settled two-limb rule 5(2)(b) test, the court found the intended appeal arguable because the indebtedness of the principal borrower was genuinely disputed. However, the second limb failed: the court was not convinced by the claimed job losses and shareholder-value destruction, noted that the property had already been sold on 16th April, 2026 rendering the relief moot, observed that the bank could compensate the applicant in damages, and held that a chargor who offers property as security assumes the risk of sale on default. The court held that a mere dispute over the amount outstanding cannot restrain a chargee's statutory power of sale where there is default, and that both limbs must be satisfied. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The appeal is arguable because the record discloses a genuine dispute whether the principal borrower's debt to the 1st respondent had been settled, which raises matters for closer scrutiny at the hearing of the appeal.

Reasoning

The court observed that both the applicant and the 2nd respondent dispute the indebtedness said to have been admitted in the High Court. Where indebtedness is disputed, the sale of the guarantor's property is a matter calling for scrutiny. These are not frivolous issues; hence the first limb of the rule 5(2)(b) test was satisfied.

p. 4
02

Whether the intended appeal would be rendered nugatory if the injunction is not granted

Holding

The refusal of the injunction would not render the appeal nugatory: the suit property had already been sold on 16th April, 2026, the applicant can be compensated by the 1st respondent in damages, and the applicant voluntarily offered its property as security with knowledge of the risk.

Reasoning

The court noted the property had been sold and the injunctive relief was overtaken by events and moot; the 1st respondent is a reputable bank able to compensate the applicant; and the applicant, having charged its property as a guarantor, understood the risk of sale. Job-loss and shareholder-value arguments were found unconvincing. The second limb therefore failed.

p. 5
03

Effect of a dispute over the amount outstanding on an application to restrain statutory power of sale

Holding

A dispute as to the amount outstanding cannot, by itself, justify an injunction preventing a mortgagee or chargee from exercising its statutory power of sale where there is default.

Reasoning

The court, citing Mrao Ltd vs First American Bank of Kenya, held that the applicant's sole thrust - disputing the amount owed - was insufficient legal basis for the court to exercise its discretion in the applicant's favour, absent any other reason.

p. 5

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both limbs - arguability of the appeal and the nugatory aspect - before the court can grant a stay or injunction pending appeal.
  • A mere dispute as to the amount outstanding is not a sufficient legal basis to restrain a chargee from exercising its statutory power of sale where there is default.
  • An arguable appeal is not one that will necessarily succeed, but one which raises issues for consideration by the court.
  • Once property is offered as security for a loan, it assumes a merchantable quality shorn of sentimental value and is liable to be sold upon default in repayment.

Court orders

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  1. 1.The application dated 2nd April, 2026 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent
On appeal from
High Court of Kenya
Nairobi High Court Civil Case No. E603 of 2025 - Mitini Scapes Development Limited vs I & M Bank Ltd (injunction application therein)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022 (original and discretionary jurisdiction to grant stay or injunction pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Home Afrika Limited v I&m Bank Limited & 1 other", Case Analysis (2026). Notice of motion dated 2nd April, 2026 (Court of Appeal application under rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1030/eng@2026-05-29

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