Tough & another v National Bank of Kenya & another (Civil Application E076 of 2025) [2026] KECA 587 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed borrowers' attempt to repeatedly seek injunctions stopping a bank from selling charged land, calling repeated filings an abuse of process.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants were entitled to yet another interlocutory injunction restraining the statutory power of sale
No; the applicants had already been heard and the same issues determined, and the general rule is that a chargor will not be restrained where the debt and default are incontestable.
The Court traced the litigation history: an injunction application dismissed in the High Court on 31st July 2023; an application to this Court dismissed on 25th October 2023; and a further application dismissed by the High Court on 7th February 2025. Once this Court had pronounced itself on the issues, the applicants could not return to the High Court to seek reliefs already considered and determined. Between chargee and chargor, damages are an adequate remedy absent challenges to the validity or integrity of the charge instrument.
Whether the application was an abuse of the due process of the court
Yes. By filing successive applications on issues already determined, the applicants abused the judicial process.
The Court adopted its own definition of abuse of process in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd, namely the use of the judicial process to the irritation and annoyance of an opponent and to the detriment of the efficient administration of justice, being a proceeding wanting in bona fides, frivolous, vexatious and oppressive. The applicants' grievances had been addressed and decisions rendered; the issues were no longer live.
Legal principles established
#- A party may not split claims into instalments and re-litigate before a subordinate court issues already determined by this Court; doing so is an abuse of the due process of the court.
- Where a chargor accepts to charge property as security for a loan, the property is commoditized and damages are an adequate remedy; courts are slow to restrain a chargee from exercising its statutory power of sale.
Court orders
#- 1.The notice of motion dated (application for injunction pending appeal) is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- High Court of Kenya at Kisumu
- Kisumu High Court Commercial Case No. E003 of 2023
- Jurisdiction invoked
- Order 42 Rule 6(1) and Order 40 Rule 1 of the Civil Procedure Rules 2010 and sections 1A, 1B and 63(e) of the Civil Procedure Act, as invoked by the applicants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tough & another v National Bank of Kenya & another (Civil Application E076 of 2025) [2026] KECA 587 (KLR)", Case Analysis (2026). Not stated in the judgment (interlocutory civil application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/587/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.