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Court of AppealPartially AllowedCivil Application No. E021 of 2025 (arising from Civil Appeal No. E900 of 2024)

Executive Super Rides Limited & another v NCBA Bank of Kenya PLC; Regent Auctioneers (Interested Party) (Civil Appeal (Application) E900 of 2024) [2025] KECA 1171 (KLR)

Court of Appeal
20 June 2025
2,145 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal can freeze property transfers pending appeal, even when Rule 5(2)(b) doesn't explicitly allow it, using its inherent powers.

What this practically means

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Executive summary

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This is a single-judgment-of-the-court ruling of the Court of Appeal at Nairobi (Karanja, M'inoti and Nyamweya, JJA) delivered on 20th June 2025 on a Rule 5(2)(b) application dated 19th December 2024 by Executive Super Rides Limited and Erick Kimathi Kirima, applicants in a pending appeal (Civil Appeal No. E900 of 2024) against a High Court ruling of 17th October 2024 in HC COMM/E434 of 2024. The High Court had dismissed their application for an interlocutory injunction restraining transfer of LR Number 1/445 (Original No.1/432/1) along Ngong Road, Nairobi, which had been sold at a contested public auction following default on a loan. The applicants sought maintenance of status quo, an interim injunction and, unusually, a permanent injunction pending appeal. The respondent and interested party opposed, contending that the power of sale had already been exercised, title documents released to an unidentified successful bidder, and that damages would be an adequate remedy. The Court first resolved a jurisdictional doubt, holding that although Rule 5(2)(b) nominally permits only injunction and stay orders, the Court possesses inherent jurisdiction under Rule 1(2) to issue conservatory orders maintaining the status quo. On the merits, the Court found one bona fide arguable point in the challenge to the interlocutory findings and the validity of the auction, and found the nugatory limb satisfied given the risk of irreversible transfer and the applicants' demonstrated prejudice. It ordered that pending the appeal there be no interference with the applicants' possession of, or transfer of, the suit property, with costs of the application to abide the appeal. The decision binds subordinate courts and the High Court on the principles stated.

Questions the Court framed

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

  1. 1.Whether the Court has jurisdiction under Rule 5(2)(b) to grant 'status quo' orders
  2. 2.Whether the intended appeal is arguable
  3. 3.Whether the intended appeal would be rendered nugatory if stay/status quo orders are not granted

Key legal issues

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01

Jurisdiction to grant status quo orders under Rule 5(2)(b)

Holding

The Court may grant status quo orders in exercise of its inherent jurisdiction under Rule 1(2), notwithstanding that Rule 5(2)(b) nominally covers injunction, stay of execution and stay of proceedings.

Reasoning

The Court noted that although Rule 5(2)(b) confines relief to injunctions and stays, prior decisions (Total Kenya Ltd v KRA; Samiyan Kaur Devinder Singh v Speedway Investments Ltd) held that this does not preclude other conservatory orders under the Court's inherent power to make orders necessary for the ends of justice or to prevent abuse of process. The Court expressly adopted that position.

p. 4
02

Arguability of the intended appeal

Holding

The appeal was arguable because it raised bona fide issues on the propriety of the High Court's interlocutory findings and the validity of the alleged auction.

Reasoning

Applying Kenya Tea Growers Association v Kenya Planters Agricultural Workers Union and Kenya Railways Corporation v Ederman Properties Ltd, the Court held that an appeal need not be certain to succeed nor raise multiple points; one bona fide issue suffices. The applicants' challenge to the interlocutory findings and the legality of the auction was neither frivolous nor idle.

p. 4
03

Nugatory-ness of the intended appeal

Holding

The nugatory limb was satisfied: the suit property could be transferred to an unidentified third party and possession lost, rendering any success on appeal irreversible and inadequately compensable in damages.

Reasoning

The Court noted the sale allegedly occurred during the pendency of court orders prohibiting it, that the applicants demonstrated concrete prejudice to their business and possession, and that the respondent relied only on prejudice to an unidentified third-party purchaser who had not been heard. Preservation of the suit property balanced the parties' interests pending appeal.

p. 4

Legal principles established

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  • A Rule 5(2)(b) applicant must satisfy both limbs: an arguable appeal and that the appeal will be rendered nugatory absent the order sought.
  • The Court of Appeal has inherent jurisdiction under Rule 1(2), notwithstanding the confines of Rule 5(2)(b), to grant conservatory orders maintaining the status quo pending appeal.
  • An appeal is 'arguable' if it raises a bona fide issue worthy of consideration; a single arguable point suffices.
  • An intended appeal is rendered nugatory where the effect of not granting a stay is irreversible, or where damages will not reasonably compensate the aggrieved party; the purpose of a stay is to preserve the subject matter of the appeal.

Court orders

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  1. 1.Pending the hearing and determination of Civil Appeal No. E900 of 2024, no interference with the applicants' possession of, or transfer of, the suit property LR Number 1/445 (Original No.1/432/1) situated along Ngong Road, Nairobi
  2. 2.Costs of the application dated 19th December 2024 to abide the outcome of the appeal

The bench

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

majority
majority
majority
On appeal from
High Court
HC COMM/E434 of 2024
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022, together with Rule 1(2) (inherent power)

Relief refused

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Interim temporary injunction in the terms of prayer 6

The Court instead granted a status quo/no-interference order preserving possession and prohibiting transfer

p. 4

Permanent injunction (prayer 7)

A permanent injunction cannot be granted on an interlocutory Rule 5(2)(b) application; it is a final relief for the appeal itself

Costs

The costs of the application dated 19th December 2024 shall abide the outcome of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An applicant has to satisfy two requirements. Firstly, that he or she has an arguable appeal. Secondly, that unless an order of stay is granted, the appeal or intended appeal would be rendered nugatory.
p. 1Rule 5(2)(b) principles
Various holdings by this Court have in this regard confirmed that this Court is possessed of inherent jurisdiction to grant status quo orders. We also adopt this position.
Inherent jurisdiction to grant status quo orders
In the circumstances, we order that pending the hearing and determination of Civil Appeal No. E900 of 2024, there shall be no interference with the applicants' possession of, or transfer of the suit property, being the parcel of land known as LR Number 1/445 (Original No.1/432/1) situated along Ngong Road Nairobi.
p. 4Final orders - preservation of suit property
The costs of the application dated 19th December 2024 shall abide the outcome of the appeal.
p. 4Costs order

Issues in the judgment

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minor

The application number of the present Rule 5(2)(b) motion is not stated in the ruling; only the appeal number (Civil Appeal No. E900 of 2024) and the application date (19th December 2024) are given.

minor

The names of the respondent and the interested party are not disclosed anywhere in the ruling; they are referred to only by role. The identities of the parties in the case title above could not be confirmed from the judgment text.

minor

The prayer numbering in the extracted motion is inconsistent (two prayers both numbered '6'), suggesting a typographical error in the ruling or the extracted application.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Executive Super Rides Limited & another v NCBA Bank of Kenya PLC; Regent Auctioneers (Interested Party) (Civil Appeal (Application) E900 of 2024) [2025] KECA 1171 (KLR)", Case Analysis (2025). Civil Application No. E021 of 2025 (arising from Civil Appeal No. E900 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1171/eng@2025-06-20

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