Surekha Hasmukhlal V Irchand Shah & 2 others v Investment & Mortgages Bank Limited

Applying the principles in Malcolm Bell v Daniel Toroitich Arap Moi, the court held that the applicants had to show the issue transcends the particular dispute and bears significantly on the public interest. The matters in dispute concerned clauses in security documents signed by the parties themselves, and the question of whether the bank can sell before crystallization of the power of sale requires evidence yet to be canvassed before the High Court. Certification was therefore refused.

The applicants argued the Court of Appeal determined matters not pleaded and misapplied the irreparable loss test. The court held that whether a decision is correct or erroneous on matters of fact or law is irrelevant to certification; the certification process is a genuine filter designed to ensure only appeals with elements of general public importance reach the Supreme Court, following Hermunus Philipus Styne v Giovanni Gnecchi-Ruscone.

In addressing the applicants' contention that the sale of charged property amounts to irreparable loss, the court reiterated the well-established parameter: the applicant must provide real tangible evidence that the loss cannot be quantified in monetary terms. Where value can be quantified and the respondent is financially able to pay, an injunction should generally not be granted, citing Nguruman and Kenya Commercial Finance Co. Ltd v Afraha Education Society.