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Court of AppealDismissedNot stated in the judgment· [2025] KECA 1930 (KLR)

Mohamed Adan Bare v Aima Enterprises Limited & 3 others

Court of Appeal
21 November 2025
820 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to block a bank from selling charged property, holding damages against a regulated financial institution are an adequate remedy.

What this practically means

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Executive summary

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This was a Rule 5(2)(b) application in the Court of Appeal for a temporary injunction restraining the 3rd respondent, a financial institution, from selling charged property LR No. 209/11095/95 (IR 79735), and for a stay of taxation proceedings before the High Court, pending an intended appeal. The intended appeal challenges a High Court ruling by V. A. Alnashir, J. delivered on 27th January 2025, striking out the applicant's suit (originally filed in the Environment and Land Court and transferred to the High Court) on the basis that the ELC, having found it lacked jurisdiction, had no competent suit to transfer. The applicant complained that the ruling was delivered without the parties having been heard. The Court applied the Kinyanjui v Ketter principles, accepting that the intended appeal was arguable and not frivolous, since the draft memorandum raised grounds including striking out on a preliminary objection without a formal application and without a hearing. However, on the nugatory aspect, the Court found damages adequate: Section 99(4) of the Land Act prescribes damages for wrongful auction, and it was uncontroverted that the 3rd respondent is a regulated financial institution capable of defraying an award of damages. The prayer for stay of taxation proceedings also failed, not meeting the high threshold in Katangi Developers v Prafula Enterprises and Lalita Devi Lalchand Galot v Mohan Galot. The application dated 12th February 2025 was dismissed with costs to the 3rd respondent. Following the death of Fred Ochieng, JA, before delivery, the judgment was delivered by the two remaining, unanimous judges under Rule 34(4) of the Court of Appeal Rules.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal, raising among other grounds that the suit was struck out on a preliminary objection without a formal application or hearing, is not frivolous and is therefore arguable

Reasoning

The draft memorandum of appeal contained 12 grounds, including that the Judge struck out the suit on a preliminary objection without a formal application, without according the applicant an opportunity to respond, and pre-empted the Court of Appeal on jurisdiction. Applying the Kinyanjui v Ketter principles, the Court accepted that an arguable appeal need not necessarily succeed and found the appeal not frivolous.

p. 2
02

Nugatory aspect and adequacy of damages

Holding

The applicant failed to demonstrate that the appeal would be rendered nugatory because damages are an adequate remedy against a regulated financial institution capable of paying them

Reasoning

Although the applicant asserted the property was worth Kshs. 100 million and he would be dispossessed, the 3rd respondent's uncontroverted position that it is a regulated financial institution capable of defraying an award of damages, and the remedy of damages under Section 99(4) of the Land Act for wrongful auction, meant the nugatory test was not satisfied.

p. 2
03

Stay of taxation proceedings

Holding

The application did not meet the high threshold for a stay of proceedings under Rule 5(2)(b)

Reasoning

Relying on Katangi Developers Limited v Prafula Enterprises Limited and Lalita Devi Lalchand Galot v Mohan Galot, the Court held that the applicant had not met the high threshold required to justify a stay of taxation proceedings before the High Court.

p. 2

Legal principles established

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  • An arguable appeal under Rule 5(2)(b) is not one that must necessarily succeed; it need only not be frivolous

Court orders

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  1. 1.The application dated 12th February 2025 is dismissed
  2. 2.Costs of the application to the 3rd respondent
On appeal from
High Court
Not stated in the judgment
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay and injunction pending intended appeal); delivery under Rule 34(4) following the death of a member of the bench

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, "Mohamed Adan Bare v Aima Enterprises Limited & 3 others", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1930/eng@2025-11-21

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