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Court of AppealDismissedNotice of Motion dated 12th December 2025, arising from Milimani HCCOM No. 039 of 2021

Imbuye & another v Kenya Commercial Bank Ltd & another (Civil Application E745 of 2025) [2026] KECA 1104 (KLR)

Court of Appeal of Kenya
12 June 2026
2,389 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to protect borrowers' home from the buyer, because money can compensate losing a house.

What this practically means

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Executive summary

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This was a single-judge-panel application (coram of Tuiyott, Nduma Nderi and Munyao Sila, JJA) under Rule 5(2)(b) of the Court of Appeal Rules, 2010, seeking an injunction and stay pending appeal against a High Court (Commercial and Tax Division) ruling of 11th December 2025 in Milimani HCCOM No. 039 of 2021. The applicants, borrowers whose matrimonial property (LR No. 209/18570, Trident Park, Nairobi) had been sold at public auction on 8th July 2025 to Celestine Jeruto Rono for Kshs. 20,400,000, complained that the High Court vacated consent status quo orders of 16th October 2025, entertained strangers, misconstrued their contempt application, and ordered their eviction based on conditional injunction orders (a Kshs. 4 million deposit) they had never complied with. The Court applied the twin-test from Trust Bank v Investech: it found the intended appeal arguable on a single bona fide ground, but held the nugatory limb failed because the property had been lawfully sold to a bona fide purchaser for value protected under Section 99 of the Land Act, the applicants remained in occupation, and any loss was compensable in damages - the Court holding that loss of a matrimonial home is not automatically non-compensable absent proof of peculiarities. The application was dismissed with costs to the respondents. The decision below was not disturbed; the ruling's binding significance lies in its restatement of the Rule 5(2)(b) twin test and the compensability of matrimonial-home loss.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable under the first limb of the Rule 5(2)(b) test
  2. 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

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01

Whether the intended appeal is arguable

Holding

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

Reasoning

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.

p. 5
02

Whether the appeal would be rendered nugatory absent the orders sought

Holding

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

Reasoning

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.

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 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

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  1. 1.The Notice of Motion dated 12th December 2025 is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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

p. 5

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

p. 5

Costs

The Notice of Motion dated 12th December 2025 is dismissed with costs to the respondents.

Quotable passages

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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.
p. 4Rule 5(2)(b) twin principles
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.
p. 5Matrimonial home and damages
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.
p. 5Bona fide purchaser protection
Accordingly, the Notice of Motion dated 12th December 2025 is hereby dismissed with costs to the respondents.
p. 5Final orders - dismissal with costs

Issues in the judgment

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minor

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

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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, "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.