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Court of AppealPartially AllowedCivil Application No. NAI. of 2026 (Rule 5(2)(b))· [2026] KECA 1651 (KLR)

NW Realite Ltd Valuers & Property Consultants Ltd v NCBA Bank Kenya PLC (Civil Application E127 of 2026) [2026] KECA 1651 (KLR)

Court of Appeal
31 July 2026
SKS. Gatembu KairuGOG. V. OdungaGOG. I. Ong'udi
2,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal halted collection of a Kshs. 534.5 million judgment against NW Realite, conditional on a Kshs. 200 million bank guarantee.

What this practically means

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Executive summary

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By a Notice of Motion under Rule 5(2)(b) of the Court of Appeal Rules, NW Realite Ltd Valuers & Property Consultants Limited sought stay of execution of a High Court judgment (P. Mulwa J., 26th February 2026, HCCOMM No. E398 of 2019) awarding the respondent bank Kshs. 534,500,000/= plus interest and costs. The applicant, having lodged a Notice of Appeal, argued the intended appeal was arguable - challenging the finding of a duty of care absent contractual relationship, liability for borrower default without proximate causation, damages awarded without strict proof, failure to exhaust alternative recovery mechanisms, and reliance on contested unsigned valuation reports - and that immediate payment of over half a billion shillings would collapse its business, rendering the appeal nugatory. The respondent opposed, contending the appeal was frivolous given a prior professional negligence finding against the applicant, that it was a Tier One bank capable of refunding, but offered a conditional stay on deposit of Kshs. 200,000,000/= or a bank guarantee. Applying the two-limb test from Trust Bank Limited v Investech Bank Limited, the Court found the intended appeal raised substantial arguable points of law and that the applicant had demonstrated substantial loss, noting the unrebutted assertion that the respondent's business was being or had been sold. The Court allowed the stay on condition that the applicant furnishes a bank guarantee of Kshs. 200,000,000/= within ten days, with costs of the application to abide the appeal. The judgment is a single judgment of the full bench of three Judges of Appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable: the existence of a duty of care absent a contractual relationship, liability for borrower default without proximate causation, damages without strict proof, exhaustion of alternative recovery mechanisms, and reliance on contested valuation evidence all raised substantial arguable points.

Reasoning

The court examined the draft memorandum of appeal and submissions. It found the question whether a legal duty can be implied in the context of professional valuation to be a substantial point of law; the strict proof of special damages principle is settled and whether the trial court adhered to it is a proper matter for review; and the mitigation/exhaustion and unsigned valuation report issues were also arguable.

p. 4
02

Nugatory value of the appeal

Holding

Immediate payment of the decretal sum exceeding half a billion shillings would cause severe financial strain and possibly irreparable damage to the applicant, and the respondent's ability to refund (its business reportedly sold or being sold) was unrebutted; stay was warranted.

Reasoning

The court found substantial loss demonstrated from the magnitude of the decretal sum. It noted the credible, unrebutted assertion that the respondent's business was in the process of being sold or already sold. Balancing interests, the respondent could be adequately safeguarded by conditions including security, while denial of stay exposed the applicant to real risk of substantial loss.

p. 5

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy two principles: that the appeal or intended appeal is arguable (not frivolous), and that unless stay is granted the appeal, if successful, will be rendered nugatory.
  • The purpose of a stay is to preserve the subject matter of litigation so that the rights of the parties are not prejudiced pending the hearing and determination of the appeal.

Court orders

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  1. 1.Prayer 3 of the application dated 11th March 2026 allowed, staying execution of the judgment and decree in Nairobi HCCOMM No. E398 of 2019
  2. 2.Stay granted on condition that the applicant furnishes the respondent with a bank guarantee of Kshs. 200,000,000/= within ten (10) days
  3. 3.Costs of the application to abide the outcome of the appeal
On appeal from
High Court at Nairobi
HCCOMM No. E398 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "NW Realite Ltd Valuers & Property Consultants Ltd v NCBA Bank Kenya PLC (Civil Application E127 of 2026) [2026] KECA 1651 (KLR)", Case Analysis (2026). Civil Application No. NAI. of 2026 (Rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1651/eng@2026-07-31

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