Roimen & another v Equity Bank of Kenya Limited & another (Civil Application E290 of 2024) [2025] KECA 90 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop the auction of charged land, ruling borrowers cannot dictate how a bank exercises its power of 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 (not frivolous)
- 2.Whether, if the injunction is not granted and the appeal succeeds, the appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
The Court found nothing arguable in the draft grounds: the applicants did not dispute their default or the bank's statutory power of sale, and it is not for a borrower to dictate the mode of exercise of that power.
The Court examined the draft memorandum of appeal and found the complaints - about mode of sale, valuation and duty of care - to be unarguable. A chargor cannot dictate whether the chargee sells by public auction or private treaty. The applicants had also earlier been granted a conditional injunction on a similar application and failed to fulfil its terms, undermining their position. Having failed the first limb, the nugatory limb did not need consideration.
Whether the appeal would be rendered nugatory without the injunction
Not decided, because the twin limbs are co-joined and the first limb having failed, the second need not be considered.
The Court reiterated that the two limbs of the rule 5(2)(b) test must both be satisfied. Having found no arguable ground, it declined to consider whether the appeal would be rendered nugatory, holding that none of the limbs can move without the other. This confirms that an applicant who fails the arguability limb need not be heard on nugatory-ness.
Legal principles established
#- To succeed on an application under rule 5(2)(b), an applicant must satisfy the twin tests that the intended appeal is arguable and that it will be rendered nugatory if stay or injunction is not granted; the limbs are co-joined and neither can stand alone.
- An arguable appeal need not necessarily succeed; it is one that is not frivolous and ought to be argued fully before the court.
Court orders
#- 1.The notice of motion dated 5th June 2024 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Temporary injunction restraining the respondents from advertising for sale, selling by public auction or dealing with LR No. Ngong/Ngong/37097 pending the hearing and determination of the intended appeal
The twin principles under rule 5(2)(b) were not satisfied; the draft grounds of appeal were not arguable
Costs
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.
The upshot is that the notice of motion dated 5th June 2024 is dismissed with costs to the respondents.
The jurisdiction of the Court under rule 5 (2) (b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory.
We do not think that it’s within the applicants’ reach to make a determination as to how the respondents will exercise their statutory power of sale.
Issues in the judgment
#The judgment inconsistently describes the dismissal of the 15th November 2022 application: paragraph 3 says it provoked the appeal without stating the basis, while paragraph 7 records the respondents as submitting it was dismissed for being res judicata; the judgment does not confirm the reason for dismissal.
The judgment refers to notices issued under 'the Land and Auctioneers Acts' without naming the statutes precisely; they are taken to be the Land Act and the Auctioneers Act.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Roimen & another v Equity Bank of Kenya Limited & another (Civil Application E290 of 2024) [2025] KECA 90 (KLR)", Case Analysis (2025). Not stated in the judgment (notice of motion dated 5th June 2024 in an intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/90/eng@2025-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.