Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedRule 5(2)(b) application arising from intended appeal against HCCOM No. E515 of 2025

Chase Bank Kenya Limited (in Liquidation) v Equity Bank Kenya Limited & another (Civil Appeal (Application) E1075 of 2025) [2026] KECA 494 (KLR)

Court of Appeal
13 March 2026
3,208 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal allowed Equity Bank to proceed toward selling the Riverside Office Block because Chase Bank can be compensated in money if its appeal later succeeds.

What this practically means

#

Executive summary

#
This was a rule 5(2)(b) application before the Court of Appeal at Nairobi in which Chase Bank Kenya Limited (In Liquidation), acting through KDIC as liquidator, sought an injunction restraining Equity Bank Kenya Limited from advertising for sale, disposing of or otherwise interfering with L.R. No. 4275/13 (I.R. 74510), the Riverside Office Block, pending an intended appeal against a High Court ruling of 28th November 2025 (Dr. F. Mugambi, J.) dismissing its application for a permanent injunction. The dispute arose after KDIC's forensic audit allegedly revealed that approximately KES 7.5 billion of depositors' funds had been diverted through SPVs, including Riverside Mews Limited, the registered owner of the suit property, and after Equity Bank issued a redemption notice following conversion of a USD 9.5 million facility to Kenya Shillings and repricing of interest. The Court of Appeal (Musinga, Ngugi and Odunga, JJ.A) applied the twin test in Stanley Kangethe Kinyanjui v Tony Ketter: arguability and nugatory-ness. It found the intended appeal arguable, since issues such as service of statutory notices, the lawfulness of the facility conversion, and the effect of the Mareva injunction merited interrogation. However, it held the appeal would not be rendered nugatory if the property were sold, because the respondent, a tier-1 bank, could compensate the applicant in damages, and further delay would allow the debt of over KES 1.3 billion to outstrip the property's value. Failing the second limb, the Court dismissed the application with costs to the respondent. The High Court ruling was not disturbed at this interlocutory stage.

Questions the Court framed

#

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless the injunction sought is granted, the intended appeal, if successful, will be rendered nugatory

Key legal issues

#
01

Arguability of the intended appeal

Holding

The intended appeal was arguable: at least one bona fide arguable issue was disclosed, satisfying the first limb of rule 5(2)(b).

Reasoning

The Court reviewed the Memorandum of Appeal, which raised issues including whether proper statutory notices under the Land Act were served on KDIC, the lawfulness of the conversion of the facility from USD to KES and the increase in interest, the effect of the Mareva injunction, and the applicant's claimed beneficial interest under the Declaration of Trust. Without pronouncing on the merits, the Court found these issues bona fide and deserving of consideration, satisfying the first limb.

p. 5
02

Whether the appeal would be rendered nugatory absent the injunction

Holding

The appeal would not be rendered nugatory if the suit property were sold, because the respondent, a tier-1 bank, is capable of compensating the applicant in damages; the second limb of rule 5(2)(b) therefore failed.

Reasoning

The Court weighed competing contentions: the applicant argued the property would be irretrievably lost from the liquidation estate if sold, likely at undervalue, prejudicing depositors and creditors; the respondent argued the dispute was essentially monetary and compensable. The Court noted the respondent is an established financial institution capable of meeting any decree, and that the outstanding loan exceeding KES 1.3 billion continues to accrue interest, so further delay could see the debt outstrip the property's value. Any loss following a successful appeal is determinable and compensable.

p. 6
03

Consequence of failing one limb of the rule 5(2)(b) test

Holding

Because the applicant satisfied only the arguability limb and not the nugatory limb, the application had to be dismissed.

Reasoning

The rule 5(2)(b) jurisdiction is granted only upon satisfaction of both limbs. The Court had already found the appeal arguable but found no nugatory risk given the respondent's capacity to compensate in damages. Since both limbs must be satisfied, the failure of the second limb was determinative and the application fell to be dismissed with costs to the respondent.

p. 6

Legal principles established

#
  • On a rule 5(2)(b) application, an applicant must satisfy the Court both that the appeal or intended appeal is arguable and that, unless the orders sought are granted, the appeal if successful will be rendered nugatory; failure on either limb is fatal.
  • An arguable appeal is not one that must ultimately succeed, but one that merits judicial interrogation on appeal; a single bona fide arguable ground suffices.
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen, is reversible; or if not reversible, whether damages will reasonably compensate the aggrieved party.

Court orders

#
  1. 1.Dismissal of the applicant's rule 5(2)(b) application
  2. 2.Costs of the application to the respondent

The bench

#

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

majority
majority
majority
On appeal from
High Court at Nairobi
HCCOM No. E515 of 2025
Jurisdiction invoked
Sections 1A, 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules

Relief refused

#

Injunction restraining the respondent from advertising for sale, disposing of, alienating or otherwise interfering with L.R. No. 4275/13 (I.R. 74510) - the Riverside Office Block, pending the intended appeal

The applicant failed to satisfy both limbs of the rule 5(2)(b) test: although an arguable issue was disclosed, the appeal would not be rendered nugatory because the respondent is capable of compensating the applicant in damages if it ultimately succeeds

p. 6

Costs

The application was dismissed with costs to the 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.

As the applicant has not satisfied both limbs under rule 5(2)(b) of this Court's Rules, we hereby dismiss this application with costs to the respondent.
p. 6Final orders - dismissal of the application
It is trite law that in an application of this nature, an applicant must satisfy this Court that the appeal or the intended appeal is arguable, and that unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory.
p. 5The rule 5(2)(b) test
It is well settled that an arguable appeal is not one that must ultimately succeed, but one that merits judicial interrogation on appeal.
p. 5Meaning of an arguable appeal
whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed, if allowed to happen, is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved.
p. 6The nugatory limb
If, after hearing the appeal, it turns out that the respondent ought not, in the circumstances, to have exercised its statutory power of sale, the value of the suit property is capable of being determined and the respondent will no doubt make good that loss.
p. 6Damages as an adequate remedy against a tier-1 bank

Issues in the judgment

#
minor

The judgment gives inconsistent dates for the letter of variation: it first refers to a letter of variation dated 7th October 2021, and later, in the respondent's affidavit, to a letter of variation dated 30th September 2021.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Chase Bank Kenya Limited (in Liquidation) v Equity Bank Kenya Limited & another (Civil Appeal (Application) E1075 of 2025) [2026] KECA 494 (KLR)", Case Analysis (2026). Rule 5(2)(b) application arising from intended appeal against HCCOM No. E515 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/494/eng@2026-03-13

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