Vundi v Standard Chartered Bank Kenya Limited & another (Civil Application E545 of 2024) [2025] KECA 1830 (KLR)
The bottom line
#The Court of Appeal refused to block the bank's sale of charged matrimonial property, ruling that damages from a reputable bank would adequately compensate the applicant.
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 under the first limb of Rule 5(2)(b)
- 2.Whether the intended appeal would be rendered nugatory if the orders sought are not granted
- 3.Whether an interlocutory injunction and stay of proceedings should issue pending the hearing and determination of the intended appeal
Key legal issues
#Whether the intended appeal was arguable
The appeal was arguable on the question of whether the ninety-day statutory notice was duly served on the applicant, but arguability alone is insufficient as both limbs must be satisfied.
The court applied the Kang'ethe Kinyanjui test that an arguable appeal is one that is not frivolous and deserves full argument, and that the court must not make definitive findings of fact or law at that stage. It found it arguable whether the ninety-day statutory notice was served on the applicant, but stressed that to benefit from the Court's discretion both limbs must be demonstrated to the Court's satisfaction.
Whether the appeal would be rendered nugatory if the orders were not granted
The appeal would not be rendered nugatory because the suit property, though matrimonial, was validly offered as commercial security and damages would adequately compensate the applicant.
The court noted the uncontroverted submission that the property, although matrimonial, was validly offered as security for a commercial facility. Following Integrated Wood Complex Ltd, it held that a reputable financial institution would have no difficulty compensating the applicant in damages, so what was sought to be stayed was reversible by damages. Both limbs therefore failed and the application was dismissed with costs.
Legal principles established
#- Jurisdiction under Rule 5(2)(b) is discretionary and requires satisfaction of two conjunctive principles: that the intended appeal is arguable and that, unless the orders sought are granted, the appeal would be rendered nugatory.
- An arguable appeal need not necessarily succeed; it is enough that a single bona fide arguable ground is raised that is not frivolous.
- In assessing nugatory-ness, where the respondent is an established financial institution capable of paying damages, damages will constitute an adequate remedy.
Court orders
#- 1.The application dated 22nd October 2024 is dismissed
- 2.Costs of the application to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Commercial & Tax Division, Nairobi
- E590 of 2023
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (interlocutory injunctive relief and stay pending intended appeal)
Relief refused
#Interlocutory injunction restraining the 1st respondent from selling, transferring or otherwise dealing with Land Reference No. 7413/23 pending the intended appeal
The applicant failed to satisfy both conjunctive limbs of Rule 5(2)(b); damages would be an adequate remedy and the appeal would not be rendered nugatory
Stay of proceedings in Nairobi High Court Commercial Case No. E590 of 2023 pending the intended appeal
Both limbs of Rule 5(2)(b) were not demonstrated
Costs
The application dated 22nd October 2024 is dismissed with costs to the 1st respondent.
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 jurisdiction under Rule 5(2)(b) is discretionary and is exercised upon satisfaction of two conjunctive principles
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
we find that the intended appeal will not be rendered nugatory if stay is not granted and the appeal succeeds.
The application dated 22nd October 2024 is accordingly dismissed with costs to the 1st respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vundi v Standard Chartered Bank Kenya Limited & another (Civil Application E545 of 2024) [2025] KECA 1830 (KLR)", Case Analysis (2025). Rule 5(2)(b) application dated 22nd October 2024 in intended appeal from Nairobi High Court Commercial Case No. E590 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1830/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.