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Court of AppealDismissedNotice of Motion dated 12th December 2025, arising from Milimani HCCOM No. 039 of 2021· [2026] KECA 1104 (KLR)

Oscar Sammy Imbuye and Aginela Kezia Waleghwa v Kenya Commercial Bank Limited & 1 other

Court of Appeal of Kenya
12 June 2026
2,389 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to protect borrowers' home from the buyer, because money can compensate losing a house.

What this practically means

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Executive summary

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This was a single-judge-panel application (coram of Tuiyott, Nduma Nderi and Munyao Sila, JJA) under Rule 5(2)(b) of the Court of Appeal Rules, 2010, seeking an injunction and stay pending appeal against a High Court (Commercial and Tax Division) ruling of 11th December 2025 in Milimani HCCOM No. 039 of 2021. The applicants, borrowers whose matrimonial property (LR No. 209/18570, Trident Park, Nairobi) had been sold at public auction on 8th July 2025 to Celestine Jeruto Rono for Kshs. 20,400,000, complained that the High Court vacated consent status quo orders of 16th October 2025, entertained strangers, misconstrued their contempt application, and ordered their eviction based on conditional injunction orders (a Kshs. 4 million deposit) they had never complied with. The Court applied the twin-test from Trust Bank v Investech: it found the intended appeal arguable on a single bona fide ground, but held the nugatory limb failed because the property had been lawfully sold to a bona fide purchaser for value protected under Section 99 of the Land Act, the applicants remained in occupation, and any loss was compensable in damages - the Court holding that loss of a matrimonial home is not automatically non-compensable absent proof of peculiarities. The application was dismissed with costs to the respondents. The decision below was not disturbed; the ruling's binding significance lies in its restatement of the Rule 5(2)(b) twin test and the compensability of matrimonial-home loss.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

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

Reasoning

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.

p. 5
02

Whether the appeal would be rendered nugatory absent the orders sought

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 12th December 2025 is dismissed
  2. 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

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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, "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.