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Court of AppealDismissedCivil Application (not stated)· [2026] KECA 821 (KLR)

Jayesh Umedlal Shanghavi & 1 other v M Oriental Bank Limited

Court of Appeal
30 April 2026
859 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 let a bank sell a borrower's Kshs.120 million secured property, ruling that money damages can compensate, so no injunction was needed.

What this practically means

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Executive summary

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Good Earth Group Limited borrowed Kshs.70 million from M. Oriental Bank Limited, secured inter alia by Unit No. 2 on the 5th Floor of Fortis Tower, and the applicants, its directors, guaranteed the facility. The unpaid debt rose to Kshs.120,883,498.68, and when the bank moved to realize the security by advertising the property for sale, the applicants obtained no relief in the High Court, which dismissed their conservatory application with costs. They lodged a notice of appeal and applied to the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules, 2022, section 3B of the Appellate Jurisdiction Act and Articles 10(2)(b) and 159 of the Constitution for an injunction restraining Spotlight Intercepts Auctioneers from selling the property pending appeal, contending unfair hearing, lis pendens and constitutional violations, and that the appeal would be rendered nugatory. The respondent's Chief Manager, Credit, swore that the debt was unchallenged and the application merely sought to frustrate a lawful process. Applying the settled twin principles from the Kang'ethe Kinyanjui decision, the court held that no bona fide arguable ground had been demonstrated: the debt was uncontested, the guarantee unhonoured, and no breach of the realization process alleged. It further held that, having pledged the property in a private commercial transaction, the applicants knew of the power of sale on default, and any loss is ameliorable by damages under section 99(4) of the Land Act, following Muthembwa and Kenafric. The application was accordingly dismissed with costs to the respondent.

Key legal issues

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01

Arguability of the intended appeal

Holding

The applicants demonstrated no bona fide arguable ground; the debt was unchallenged, they had guaranteed it, and no breach of the realization process was alleged.

Reasoning

The facility was not serviced and grew to Kshs.120,883,498.68. The applicants, as directors and guarantors, did not honour the guarantee. Neither in the High Court nor before the Court of Appeal did they claim any breach of law in the realization process, so no arguable ground exists to occupy the minds of the eventual appellate bench.

p. 2
02

Nugatory-ness of the intended appeal

Holding

The appeal would not be rendered nugatory if the sale proceeds, because the pledged security became a contractual financial asset and damages are an adequate remedy under section 99(4) of the Land Act.

Reasoning

By agreeing that the property secure the facility, the applicants accepted it would be sold on default. In this private commercial transaction the security shifted from a physical asset to a contractual financial asset, and statutory damages under section 99(4) of the Land Act ameliorate any loss, following the Muthembwa and Kenafric authorities.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate an arguable intended appeal and that, unless the order is granted, the appeal if successful would be rendered nugatory.
  • A chargee's statutory right of sale crystalizes upon default provided the law governing realization is followed.
  • Where pledged security in a private commercial transaction is sold, any loss is ameliorable by an award of damages under section 99(4) of the Land Act, so the appeal is not rendered nugatory.

Court orders

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  1. 1.Dismissal of the application under Rule 5(2)(b) for an injunction restraining the sale of the suit property pending appeal
  2. 2.Costs of the application to the respondent
On appeal from
High Court at Nairobi
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022; section 3B of the Appellate Jurisdiction Act; Articles 10(2)(b) and 159 of the Constitution

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, "Jayesh Umedlal Shanghavi & 1 other v M Oriental Bank Limited", Case Analysis (2026). Civil Application (not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/821/eng@2026-04-30

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