Imbuye & another v Kenya Commercial Bank Ltd & another (Civil Application E745 of 2025) [2026] KECA 1104 (KLR)
The bottom line
#Kenya's Court of Appeal refused to protect borrowers' home from the buyer, because money can compensate losing a house.
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 under the first limb of the Rule 5(2)(b) test
- 2.Whether the appeal would be rendered nugatory if stay and injunction are not granted, under the second limb of the Rule 5(2)(b) test
Key legal issues
#Whether the intended appeal is arguable
The Court found one bona fide arguable ground concerning the vacating of the consent status quo orders, entertaining strangers, misconstruing the contempt application, and eviction based on lapsed conditional orders
The Court restated that an arguable appeal need not succeed but must not be frivolous, and that a Rule 5(2)(b) court must not make definitive findings of fact or law that would embarrass the full appeal. It found at least a single bona fide arguable ground raised by the applicants in the draft memorandum of appeal, satisfying the first limb of the test.
Whether the appeal would be rendered nugatory absent the orders sought
The second limb failed: the property had been lawfully sold to a bona fide purchaser whose title is protected under Section 99 of the Land Act, and any loss is compensable in damages
Although the applicants remained in occupation, the substratum of the appeal was not destroyed. The Court held that sentimental attachment to a matrimonial home does not render loss non-compensable unless peculiarities making the property priceless are demonstrated, an onus the applicants failed to discharge. The bank's ability to pay damages was not doubted.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs - arguability of the appeal and nugatory-ness - to the court's satisfaction; failure of either limb is fatal
- Loss of a matrimonial home is not automatically non-compensable in damages; the party asserting non-compensability must prove the property's peculiarities
Court orders
#- 1.The Notice of Motion dated 12th December 2025 is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (Commercial and Tax Division), Milimani
- Milimani HCCOM No. 039 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010; Articles 40 and 159(2) of the Constitution; Sections 3, 3A and 3B of the Appellate Jurisdiction Act (Cap 9)
Relief refused
#Injunction restraining the respondents from interfering with the applicants' occupation of the suit property
Applicants failed to satisfy the second (nugatory) limb of the Rule 5(2)(b) test
Stay of the orders of 11th December 2025 and stay of proceedings in Milimani HCCOM No. 039 of 2021
The property was lawfully sold to a bona fide purchaser protected under Section 99 of the Land Act, and any loss is compensable in damages
Costs
The Notice of Motion dated 12th December 2025 is dismissed with costs to the 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 the exercise of this discretion, the Court must be satisfied on the twin principles which are that the appeal is arguable and that if the orders sought are not granted and the appeal succeeds, the appeal will be rendered nugatory.
we do not understand the law to be that any loss of a matrimonial home is not compensable in damages. A party making such an argument must demonstrate peculiarities of the property that makes it invaluable or priceless, an onus not discharged by the applicants here.
The record shows that the suit property was lawfully sold by public auction on 8th July 2025 to a bona fide purchaser for value, whose Title is protected under Section 99 of the Land Act.
Accordingly, the Notice of Motion dated 12th December 2025 is hereby dismissed with costs to the respondents.
Issues in the judgment
#Internal date inconsistency: the application to be enjoined as interested party is described as dated 24th February 2026 while submissions are dated 27th February 2026, yet the notice of motion is dated 12th December 2025 and was filed against a ruling of 11th December 2025 - the chronology is internally coherent but the case number year (2021) with events spanning 2025-2026 should be verified against the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Imbuye & another v Kenya Commercial Bank Ltd & another (Civil Application E745 of 2025) [2026] KECA 1104 (KLR)", Case Analysis (2026). Notice of Motion dated 12th December 2025, arising from Milimani HCCOM No. 039 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1104/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.