Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. E641 of 2024 (Notice of Motion dated 27th November 2024)

East African Cables PLC v Equity Bank (Kenya) Limited (Civil Application E650 of 2024) [2025] KECA 901 (KLR)

Court of Appeal
23 May 2025
1,304 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal allowed Equity Bank to proceed toward selling East African Cables' charged properties, holding that damages under section 99(4) of the Land Act would adequately compensate any improper sale.

What this practically means

#

Executive summary

#
This was a Rule 5(2)(b) application before the Court of Appeal in which East African Cables PLC sought an injunction restraining Equity Bank (Kenya) Ltd from advertising for sale, selling or dealing with four charged properties pending an intended appeal against a High Court ruling of 11th November 2024 (Mong'are, J.) that had declined a similar injunction in Milimani Commercial & Tax Civil Suit No. E505 of 2023. The applicant argued that the intended appeal was arguable and would be rendered nugatory if the properties were sold, and relied on interim injunction orders in a parallel suit, Milimani HCOMM No. E277 of 2023, said to bind the Bank over the same debt. The Bank countered that the debt of over Kshs. 2.2 billion was admitted, the appeal was not arguable, and damages under section 99(4) of the Land Act were an adequate remedy given its standing as a tier 1 bank. The Court found the appeal arguable on one issue only - the interplay between the parallel suit's orders and the Bank's statutory power of sale - but held that the nugatory limb failed: any improper sale would be compensable in damages under section 99(4) of the Land Act, and the Bank's ability to pay was not doubted. The application was dismissed with costs and the interim orders previously granted were discharged. The decision reiterates the twin Rule 5(2)(b) test and the primacy of damages as a remedy for improper exercise of the statutory power of sale.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal against the High Court ruling declining to injunct the exercise of the statutory power of sale is arguable
  2. 2.Whether the intended appeal would be rendered nugatory if the injunction pending appeal is not granted

Key legal issues

#
01

Whether the intended appeal is arguable

Holding

The appeal is arguable on a single issue: the interplay between interim injunction orders in Milimani HCOMM No. E277 of 2023 over the same debt and the Bank's exercise of its statutory power of sale deserves further interrogation.

Reasoning

The threshold at the interlocutory stage is low; the applicant need only show one bona fide issue that is not frivolous. Whether orders in a parallel suit (HCOMM No. E277 of 2023) bind the Bank in respect of the statutory power of sale was held by the judge below not to protect the suit properties, but the Court found the issue deserves consideration at the hearing of the main appeal, without deciding it definitively.

p. 3
02

Whether the appeal would be rendered nugatory without an injunction

Holding

No. Any sale of the charged properties would be reversible by damages under section 99(4) of the Land Act, and the Bank's ability to pay damages as a tier 1 bank is not doubted.

Reasoning

Although legal charges over the suit properties remain undischarged and the parties dispute whether the debt was paid, the worst case for the applicant is a sale later found improper. Section 99(4) of the Land Act provides a remedy in damages for unauthorised, improper or irregular exercise of the power of sale, and a tier 1 bank can reasonably compensate. Damages are therefore an adequate remedy, defeating the nugatory limb.

p. 3

Legal principles established

#
  • To obtain an injunction under Rule 5(2)(b), an applicant must demonstrate both an arguable appeal and that the appeal will be rendered nugatory if the injunction is not granted; both conditions must be met.
  • Where a chargee exercises its statutory power of sale in an unauthorised, improper or irregular manner, the chargor's only remedy is damages under section 99(4) of the Land Act, and such a sale does not render an intended appeal nugatory, even where the debt is contested.

Court orders

#
  1. 1.The notice of motion dated 27th November 2024 is dismissed with costs
  2. 2.The interim orders granted earlier are discharged

The bench

#

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya
Milimani Commercial & Tax Division Civil Suit No. E505 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (inherent injunction jurisdiction pending intended appeal)

Relief refused

#

Order of injunction restraining the Bank from advertising for sale, selling or dealing with the suit properties pending the intended appeal

The appeal is arguable but the second nugatory limb fails because damages under section 99(4) of the Land Act are an adequate remedy and the Bank is a tier 1 bank able to pay them

p. 3

Costs

The notice of motion dated 27th November 2024 is dismissed with costs to the respondent (Equity Bank (Kenya) Ltd).

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.

Ultimately, we find that the notice of motion dated 27th November 2024 is without merit and hereby dismiss it with costs. The interim orders granted earlier are hereby discharged.
p. 3Final orders - dismissal of the Rule 5(2)(b) application
So as to deserve grant of the order, the applicant must demonstrate that it has an arguable appeal and that the appeal will be rendered nugatory if the injunction is not granted. Both conditions must be met.
p. 2Rule 5(2)(b) twin test
The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifiing.
p. 2Meaning of nugatory (as stated in Stanley Kangethe Kinyanjui v Tony Ketter)
It must be in the contemplation of a chargor that the chargee could exercise the power of sale in an unauthorised, improper or irregular manner but the only remedy available for such infraction is a relief in damages.
p. 3Adequacy of damages under section 99(4) of the Land 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, "East African Cables PLC v Equity Bank (Kenya) Limited (Civil Application E650 of 2024) [2025] KECA 901 (KLR)", Case Analysis (2025). Civil Application No. E641 of 2024 (Notice of Motion dated 27th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/901/eng@2025-05-23

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