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Court of AppealDismissedCivil Application (Injunction Pending Appeal)· [2025] KECA 1099 (KLR)

Samuel Onyango Okello & 2 others v Fin Tea Limited & 1 other

Court of Appeal of Kenya
20 June 2025
3,201 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to stop Citi Bank from enforcing its charge over a Mombasa property because the borrowers could not prove the bank couldn't repay them if they later won.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Malindi (A. K. Murgor, Dr. K. I. Laibuta and G. W. Ngenye-Macharia, JJ.A) delivered on 20th June 2025 on a Notice of Motion dated 13th December 2024. The applicants sought a temporary injunction pending appeal restraining Citi Bank N.A from enforcing a legal charge dated 20th November 1998 over Plot No. 1191, Section I, Mainland North Mombasa, pursuant to rule 5(2)(b) of the Court of Appeal Rules, 2022 and sections 3A and 3B of the Appellate Jurisdiction Act. The underlying suit, in which the High Court (P. J. Otieno, J.) dismissed the applicants' case and entered judgment on the bank's counterclaim for USD1,421,939.10 and Kshs.22,084,274.80 and declared the charge valid and enforceable, is on appeal. The court applied the settled twin-prong test for rule 5(2)(b) relief: the appeal must be arguable and, if relief is withheld, the appeal would be rendered nugatory. It found the grounds on whether money was actually advanced and the validity of the charge arguable. On the nugatory limb, however, it held that the decree is monetary, the bank is a reputable institution capable of paying damages, and any improper exercise of the statutory power of sale is compensable in damages under section 99(4) of the Land Act. The applicants' unrebutted failure to show the bank could not satisfy the decree was fatal. The application was dismissed with costs to the 1st respondent. This is a first-instance interlocutory ruling of the Court of Appeal; it binds subordinate courts on the rule 5(2)(b) principles it restates but does not disturb the High Court decision, which awaits the substantive appeal.

Key legal issues

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01

Whether the applicants' appeal is arguable under rule 5(2)(b)

Holding

The appeal was arguable: the question whether the charge related to the original amount and whether money was actually advanced are worthy grounds of consideration.

Reasoning

The court reviewed the intended grounds of appeal, including alleged misapplication of sections 35 of the Limitation of Actions Act and 44A of the Banking Act, and the contention that the USD300,000 facility was never advanced. It found these grounds not frivolous and therefore arguable, while noting that their ultimate success was for the bench hearing the appeal.

p. 5
02

Whether the appeal would be rendered nugatory if the injunction is not granted

Holding

No. The decree is monetary; the 1st respondent is a reputable bank capable of paying damages, and any improper sale is compensable in damages under section 99(4) of the Land Act.

Reasoning

Applying the money-decree jurisprudence, the court noted the applicants bore the burden of showing the respondent could not repay the decreed sums. That averment was unrebutted. Further, a chargor's remedy for an improper exercise of the power of sale lies in damages, so a sale of the suit property would not render the appeal nugatory; an injunction would instead disadvantage the bank, whose loan has been non-performing since 2018.

p. 6

Legal principles established

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  • An applicant for an injunction or stay pending appeal under rule 5(2)(b) must satisfy both the arguability and nugatory limbs; demonstrating only one is insufficient.
  • An arguable appeal is one that is not frivolous and is worthy of consideration; the applicant need not show an overwhelming probability of success.
  • A money decree generally will not render an appeal nugatory where the respondent is able to repay the decretal amount on success of the appeal, subject to hardship considerations.
  • Where property is offered as security for a bank facility, the remedy for an unauthorised, improper or irregular exercise of the chargee's statutory power of sale lies in damages, and a bank able to pay damages should not be restrained from exercising that power even where the debt is contested.

Court orders

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  1. 1.The Notice of Motion dated 13th December 2024 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent
On appeal from
High Court of Kenya at Mombasa
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022 and sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9

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, "Samuel Onyango Okello & 2 others v Fin Tea Limited & 1 other", Case Analysis (2025). Civil Application (Injunction Pending Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1099/eng@2025-06-20

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