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Court of AppealDismissedNot stated in the judgment (application by notice of motion dated 1st March 2025)

Kariuki v Family Bank Ltd & another (Civil Appeal (Application) E008 of 2025) [2026] KECA 1629 (KLR)

Court of Appeal
31 July 2026
1,310 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to stop a bank from selling a borrower's Eldoret land, ruling that money can compensate any wrongful sale.

What this practically means

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Executive summary

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This is a single-judgment decision of the Court of Appeal at Eldoret (Gachoka, Korir and Ndolo, JJ.A) dismissing a notice of motion dated 1st March 2025 in which a borrower sought an interlocutory injunction restraining the 1st respondent bank and the 2nd respondent auctioneer from selling, transferring or alienating ELDORET MUNICIPALITY/BLOCK 14/1130 pending an intended appeal against the High Court's decision of 31st January 2025 in Eldoret High Court Civil Case No E020 of 2024, which had declined an injunction against exercise of the chargee's statutory power of sale. The applicant argued that the bank failed to issue statutory notices under section 90 of the Land Act, that no notification of sale or redemption notice under rule 15 of the Auctioneers Rules was served, that there was no proper valuation under section 97(2) of the Land Act, and that he would suffer irreparable harm. The bank countered that it complied with the law and that the property was voluntarily offered as security. Applying rule 5(2)(b) of the Court of Appeal Rules, the court found the arguability limb satisfied on the low threshold that a single meritorious ground suffices, but held the nugatory limb failed: the debt was undisputed, the property was voluntarily charged, and the chargee is a licensed and regulated commercial bank able to compensate in damages. The application was dismissed with costs to the respondents. The decision below was not disturbed; the intended appeal remains pending.

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
  2. 2.Whether the appeal would be rendered nugatory if the injunction pending appeal is not granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The grounds alleging non-compliance with statutory notice requirements under section 90 of the Land Act, absence of notification of sale and redemption notice under rule 15 of the Auctioneers Rules, and lack of proper valuation under section 97(2) of the Land Act constitute an arguable appeal.

Reasoning

The threshold for arguability is low; a single point meriting inquiry suffices. The applicant's complaints about statutory notices under the Land Act and the Auctioneers Rules, and about the absence of a proper valuation of the forced sale value, were held to be grounds warranting the court's interrogation, satisfying the first limb of rule 5(2)(b).

p. 3
02

Nugatory aspect of the intended appeal

Holding

The appeal would not be rendered nugatory because the applicant is admittedly indebted, the property was voluntarily offered as security, and the 1st respondent is a licensed and regulated commercial bank able to pay damages.

Reasoning

Guided by Stanley Kang'ethe Kinyanjui v Tonny Ketter, the court held that nugatory turns on irreversibility or incapability of recompense by damages. Since the debt was not contested, the property was voluntarily charged, and the chargee is a regulated bank, any misstep in exercising the statutory power of sale would be compensable in damages. The applicant therefore failed the second, conjunctive limb.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both the arguability and nugatory tests conjunctively; satisfying only one limb is insufficient.
  • An appeal is rendered nugatory where what is sought to be stayed is irreversible or incapable of being recompensed by an award of damages; where the respondent is a licensed and regulated commercial bank, loss arising from exercise of the statutory power of sale is compensable in damages.

Court orders

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  1. 1.The application dated 1st March 2025 is dismissed
  2. 2.Costs of the application 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
Eldoret High Court Civil Case No E020 of 2024
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Interlocutory injunction restraining sale, transfer or alienation of ELDORET MUNICIPALITY/BLOCK 14/1130 pending the hearing and determination of the intended appeal

The applicant failed the nugatory limb of rule 5(2)(b); any loss would be recompensed by damages against a licensed and regulated commercial bank

p. 3

Costs

The application dated 1st March 2025 therefore fails and 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.

for an applicant to successfully move the Court under rule 5(2)(b) they must satisfy the two conjunctive conditions being, that they have an arguable appeal (the arguability test) and that the appeal would be rendered nugatory (the nugatory test) if the orders sought are not granted.
p. 3Conjunctive rule 5(2)(b) tests
We are therefore satisfied that should the applicant succeed on appeal, any misstep by the 1st respondent in exercising its statutory power of sale would be recompensed by an award of damages.
p. 3Nugatory test - damages against a regulated bank
The application dated 1st March 2025 therefore fails and is dismissed, with costs to the respondents.
p. 3Final orders

Issues in the judgment

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minor

The judgment records that the application was heard virtually on 8th June 2026, which post-dates the applicant's submissions dated 5th May 2026 but the hearing date appears inconsistent with the chronology of a motion filed 1st March 2025; also the 2nd respondent filed no replying affidavit and did not appear to be represented at the hearing.

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, "Kariuki v Family Bank Ltd & another (Civil Appeal (Application) E008 of 2025) [2026] KECA 1629 (KLR)", Case Analysis (2026). Not stated in the judgment (application by notice of motion dated 1st March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1629/eng@2026-07-31

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