Jasvinder Mahal v Arrow Hi-Fi Limited & 6 others

the 1st respondent, Arrow Hi-Fi Limited. In exercise of its statutory power of sale, the Bank advertised the property for sale by public auction through the 4th respondent, Dalali Traders. At the auction, it is asserted that the property was knocked down and sold to the 6th respondent Ram Equity Limited. Arrow Hi-Fi Limited and Aakif Nizarali Virani instituted suit against the Bank, the Auctioneer and against Ram Equity Limited at the High Court at Nairobi challenging the sale, being, HCCOMM No. E598 of 2021. The applicant then moved the High Court by his application dated 31st March 2022 seeking to be joined in that suit on grounds that he was the highest bidder of the property at the auction and that the sale at the auction to the 6th respondent, Ram Equity Limited, was fraudulent, illegal and unprocedural and should be nullied. 3. As already stated, the High Court was not persuaded that the applicant had demonstrated that he had legal standing to be joined in the suit and dismissed his application. Aggrieved, the applicant led a notice of appeal on which the present application is hinged. 4. We heard the application on 3rd November 2025 and apologize to the parties for the delay in delivering this ruling. At the hearing learned counsel Mr. Francis Musana held brief for Mr. Maina for the applicant. Mr. Omino and Miss. Njoroge appeared for Arrow Hi-Fi Limited and Aakif Nizarali Virani. Ms. Ngonde appeared for the Bank and for the auctioneer. Ms. Wanjau held brief for Mr. Hassan for Peter Kage and Ram Equity. There was no appearance for Cars Direct Limited which had also sought joinder before the High Court. 5. We have considered the application, the applicant’s supporting adavit, the replying adavit sworn by Brian Peter Otieno, the Legal Manager of the Bank, the replying adavit of Kaushik Ramji Gudka, a director of Ram Equity Limited, the applicant’s written submissions dated 20th May 2025, the Bank’s and Auctioneers submissions dated 9th October 2025; the submissions of the 3rd and 4th respondent dated 24th October 2025 and the oral arguments made before us. 6. The applicants seek, under Rule 5(2)(b) of the Court of Appeal Rules, to stay proceedings before the High Court. In that regard, to succeed in the application, the applicant must rst demonstrate that he has an arguable appeal, and secondly, that if the application is denied, the appeal if successful will be rendered nugatory. See Stanley Kang’ethe Kinyanjui vs. Tony Keter & 5 Others, Civil Application 31 of 2013 [2013] KECA 378 (KLR). 7. With those principles in mind, the applicant, who is supported in the application by Arrow Hi-Fi Limited and Aakif Nizarali Virani have urged that the nding by the Judge that the applicant tendered to the auctioneer a personal, as opposed to a bankers’ cheque, is erroneous and that the learned Judge also erred in concluding that the applicant had not demonstrated a stake interest in the case. Whereas the Bank maintains that the intended appeal is frivolous, the questions articulated by the applicant in his memorandum of appeal, including whether the applicant established a legal and identiable interest in the suit, and in the suit property, are in our view arguable. 8. As to whether, if we decline the prayers sought and the appeal ultimately succeeds, it will be rendered nugatory, the claim the applicant makes is in eect that the sale of the property at the auction in exercise of the Bank’s statutory power of sale under a charge was irregular. The Land Act in Section 99(4) provides that a person prejudiced by an unauthorised, improper or irregular exercise of the power of sale shall have a remedy in damages against the person exercising that power. The value of the property is indicated and there is no suggestion that the Bank would be unable to meet an award of damages. 9. Moreover, considering the applicant is seeking to halt proceedings before the High Court, he has not demonstrated exceptional circumstances to warrant that. In that regard, we echo the pronouncement by this Court in the case of Waithaka vs. Tribunal appointed to investigate the conduct of the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1801/eng@2026-09-25 2

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Honourable Lady Justice Lucy Njoki Waithaka & Another; Kenya Magistrates & Judges Association (Interested Party) (Civil Application 8 of 2020) [2020] KECA 571 (KLR) thus: “We note that stay of proceedings is a serious, grave and fundamental judicial action which interferes with the right of any party to conduct litigation. (See: Francis N. Githiari v Njama Limited [2006] eKLR). It impinges on the right of access to justice, right to be heard without delay and the right to a fair trial. While addressing the issue of stay of proceedings in the persuasive case of Global Tours & Travels Limited (supra), Ringera, J. as he then was stated thus: “As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice… the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal in the sense of whether or not the intended appeal will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” 10. We respectfully agree. The applicant has not demonstrated exceptional circumstances that would warrant the stoppage of the proceedings before the High Court. 11. The application fails and is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. S. GATEMBU KAIRU, FCIArb, CArb. ........................................... JUDGE OF APPEAL P.NYAMWEYA ........................................ JUDGE OF APPEAL W. KORIR ....................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1801/eng@2026-09-25 3

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