Kariuki v Family Bank Ltd & another (Civil Appeal (Application) E008 of 2025) [2026] KECA 1629 (KLR)
The bottom line
#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
#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 appeal would be rendered nugatory if the injunction pending appeal is not granted
Key legal issues
#Arguability of the intended appeal
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.
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).
Nugatory aspect of the intended appeal
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.
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.
Legal principles established
#- 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
#- 1.The application dated 1st March 2025 is dismissed
- 2.Costs of the application to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
The application dated 1st March 2025 therefore fails and 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.
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.
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.
The application dated 1st March 2025 therefore fails and is dismissed, with costs to the respondents.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.