Executive Super Rides Limited & 1 other v Guardian Bank Limited & 1 other
The bottom line
#The Court of Appeal allowed a bank to proceed against charged properties because money damages can adequately compensate borrowers after a wrongful sale.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The appeal was arguable: the applicants raised bona fide complaints including denial of fair hearing, contested arrears, exorbitant interest, wrongful merging of loan accounts and clogging of the right of redemption.
The Court examined the memorandum of appeal and counsel's submissions, noting that an arguable appeal need not succeed. On that standard, the complaints about the High Court's failure to consider further affidavits and submissions and about the Bank's conduct were not frivolous, so the first limb of the Rule 5(2)(b) test was satisfied.
Whether the appeal would be rendered nugatory absent stay or injunction
The applicants failed on this limb. Damages under Section 99 of the Land Act are an adequate remedy for wrongful exercise of the statutory power of sale, and it was not claimed the Bank could not satisfy an award of damages; moreover the Ngong Road property had already been sold, extinguishing the equity of redemption.
The Court applied the principle that nugatory-ness turns on reversibility or the adequacy of damages. Charged properties, once offered as security, are commodities liable to disposal unless redeemed (Muotia v National Bank of Kenya Limited). Since Section 99 gives a specific damages remedy and the Bank's solvency was not impugned, preserving the subject matter was not justified; hence the application failed.
Legal principles established
#- An applicant for a stay of execution or injunction pending appeal must demonstrate that the appeal or intended appeal is arguable and that, absent the order, the appeal if successful will be rendered nugatory.
- An arguable appeal is not one that must necessarily succeed; it suffices that it is not frivolous.
- The nugatory test asks whether what is to be stayed or injuncted is reversible, or whether damages will reasonably compensate the aggrieved party.
- Section 99 of the Land Act provides a specific remedy in damages for wrongful exercise of the statutory power of sale, which generally defeats a claim that an appeal will be rendered nugatory where the chargor does not impugn the chargee's ability to pay.
Court orders
#- 1.The applicants' Notice of Motion dated 13th March 2025 is dismissed
- 2.Costs of the application to the 1st respondent
- On appeal from
- High Court
- Civil Case No E550 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (appellate stay/injunction pending appeal); jurisdiction as Court of Appeal on appeal from the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Executive Super Rides Limited & 1 other v Guardian Bank Limited & 1 other", Case Analysis (2026). Civil Application No E550 of 2024 (Notice of Motion dated 13th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/414/eng@2026-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.