Mohamed Adan Bare v Aima Enterprises Limited & 3 others
The bottom line
#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
#Executive summary
#Key legal issues
#Arguability of the intended appeal
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
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.
Nugatory aspect and adequacy of damages
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
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.
Stay of taxation proceedings
The application did not meet the high threshold for a stay of proceedings under Rule 5(2)(b)
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.
Legal principles established
#- An arguable appeal under Rule 5(2)(b) is not one that must necessarily succeed; it need only not be frivolous
Court orders
#- 1.The application dated 12th February 2025 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.