Oscar Sammy Imbuye and Aginela Kezia Waleghwa v Kenya Commercial Bank Limited & 1 other
The bottom line
#Kenya's Court of Appeal refused to protect borrowers' home from the buyer, because money can compensate losing a house.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The Court found one bona fide arguable ground concerning the vacating of the consent status quo orders, entertaining strangers, misconstruing the contempt application, and eviction based on lapsed conditional orders
The Court restated that an arguable appeal need not succeed but must not be frivolous, and that a Rule 5(2)(b) court must not make definitive findings of fact or law that would embarrass the full appeal. It found at least a single bona fide arguable ground raised by the applicants in the draft memorandum of appeal, satisfying the first limb of the test.
Whether the appeal would be rendered nugatory absent the orders sought
The second limb failed: the property had been lawfully sold to a bona fide purchaser whose title is protected under Section 99 of the Land Act, and any loss is compensable in damages
Although the applicants remained in occupation, the substratum of the appeal was not destroyed. The Court held that sentimental attachment to a matrimonial home does not render loss non-compensable unless peculiarities making the property priceless are demonstrated, an onus the applicants failed to discharge. The bank's ability to pay damages was not doubted.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs - arguability of the appeal and nugatory-ness - to the court's satisfaction; failure of either limb is fatal
- Loss of a matrimonial home is not automatically non-compensable in damages; the party asserting non-compensability must prove the property's peculiarities
Court orders
#- 1.The Notice of Motion dated 12th December 2025 is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- High Court of Kenya (Commercial and Tax Division), Milimani
- Milimani HCCOM No. 039 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010; Articles 40 and 159(2) of the Constitution; Sections 3, 3A and 3B of the Appellate Jurisdiction Act (Cap 9)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oscar Sammy Imbuye and Aginela Kezia Waleghwa v Kenya Commercial Bank Limited & 1 other", Case Analysis (2026). Notice of Motion dated 12th December 2025, arising from Milimani HCCOM No. 039 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1104/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.