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Court of AppealDismissedCivil Application No. NAI. E469 of 2024

Mathew Musau Kithilu v Co-operative Bank of Kenya Limited, Loneview Developers Limited & Suraya Property Group Limited

Court of Appeal
25 September 2026
1,104 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to stop Co-operative Bank from acting on charged property because the buyer's claim was purely monetary and the Bank can pay damages.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Musinga, Tuiyott and Odunga, JJ.A.) on a notice of motion dated 11th September 2024 brought under Rule 5(2)(b) of the Court of Appeal Rules by Mathew Musau Kithilu, seeking an injunction pending an intended appeal against the ruling of Christine Ochieng, J of the Environment and Land Court at Machakos (ELC Case No. E028 of 2023, dated 29th July 2024), which had dismissed his application for injunctive relief against Co-operative Bank of Kenya Limited. The dispute concerns ten units on land registered to Loneview Developers Limited and charged to the Bank for over Ksh. 1 billion; the applicant claimed an interest arising from a sale/settlement arrangement with Suraya Property Group Limited, which the Bank disavowed. Applying the settled twin conjunctive tests from Stanley Kinyanjui Kangethe v Tony Keter, the court assumed arguability without deciding it but held the application failed the nugatory limb: the applicant's claim was essentially monetary (compensation for unpaid purchase consideration), and the Bank's unrefuted affidavit evidence showed it was a first-tier bank able to satisfy any award. The motion was accordingly dismissed with costs to the 1st respondent. 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 intended appeal will be rendered nugatory if the injunction pending appeal is not granted

Key legal issues

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01

Whether the intended appeal would be rendered nugatory absent an injunction

Holding

No. The applicant's claim against Suraya, and by extension the Bank, was monetary in nature, and the Bank's unrefuted affidavit evidence showed it could meet any award.

Reasoning

The court examined the 12th September 2015 agreement and found the applicant's core claim was compensation for unpaid purchase consideration - a monetary claim. Florence Njuguna's affidavit asserted the Bank is a first-tier bank able to satisfy any award; the applicant did not refute this. Damages would therefore be an adequate remedy, defeating the second limb of the Rule 5(2)(b) test.

p. 9
02

Whether the intended appeal is arguable

Holding

The court assumed without deciding that the intended appeal was arguable, but dismissed the application on the nugatory limb alone.

Reasoning

The court expressly declined to resolve arguability, holding that even if the appeal were arguable, failure of the second conjunctive test was fatal. This makes the ruling a pure nugatory-limb decision and leaves the arguability question open for the full appeal.

p. 7

Legal principles established

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  • A Rule 5(2)(b) applicant must satisfy both the arguability and nugatory tests conjunctively; failure on either limb defeats the application.
  • Where the underlying claim is monetary and the respondent is shown to be financially able to satisfy any award, the nugatory-prong fails even if the statutory power of sale is irreversible.

Court orders

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  1. 1.The notice of motion dated 11th September 2024 is dismissed with costs to the 1st respondent

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court of Kenya at Machakos
ELC Case No. E028 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Interlocutory injunction restraining the 1st respondent from entering or interfering with the claimed units pending the intended appeal

The applicant's claim is monetary in character and the Bank is financially able to compensate him, so the appeal would not be rendered nugatory

p. 9

Costs

Dismissed with costs to the 1st respondent

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.

It is common ground that for a Rule 5(2)(b) application to succeed then it must meet the twin tests that the appeal or intended appeal is arguable and will be rendered nugatory if stay or an injunction is not granted, both tests conjunctively
p. 7Twin conjunctive tests under Rule 5(2)(b)
Even if we were to find that the intended appeal is arguable still the motion is for refusal as it does not surmount the second limb.
p. 7Failure of nugatory limb is fatal
The notice of motion dated 11th September 2024 is without merit. It is hereby dismissed with Costs to the 1 st respondent.
p. 10Final orders and disposition

Issues in the judgment

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minor

Delivery date appears erroneous: ruling on a 2024 application dated 25th September 2026.

minor

Prayer in the motion contains typographical errors ('retrained' for 'restrained'; '1st Defendants' though the applicant was plaintiff below).

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, "Mathew Musau Kithilu v Co-operative Bank of Kenya Limited, Loneview Developers Limited & Suraya Property Group Limited", Case Analysis (2026). Civil Application No. NAI. E469 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1805/eng@2026-09-25

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