Kariuki v Family Bank Ltd & another (Civil Appeal (Application) E008 of 2025) [2026] KECA 1629 (KLR)
The bottom line
#The Court of Appeal refused to stop a bank from selling a borrower's Eldoret land, ruling that money can compensate any wrongful sale.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The grounds alleging non-compliance with statutory notice requirements under section 90 of the Land Act, absence of notification of sale and redemption notice under rule 15 of the Auctioneers Rules, and lack of proper valuation under section 97(2) of the Land Act constitute an arguable appeal.
The threshold for arguability is low; a single point meriting inquiry suffices. The applicant's complaints about statutory notices under the Land Act and the Auctioneers Rules, and about the absence of a proper valuation of the forced sale value, were held to be grounds warranting the court's interrogation, satisfying the first limb of rule 5(2)(b).
Nugatory aspect of the intended appeal
The appeal would not be rendered nugatory because the applicant is admittedly indebted, the property was voluntarily offered as security, and the 1st respondent is a licensed and regulated commercial bank able to pay damages.
Guided by Stanley Kang'ethe Kinyanjui v Tonny Ketter, the court held that nugatory turns on irreversibility or incapability of recompense by damages. Since the debt was not contested, the property was voluntarily charged, and the chargee is a regulated bank, any misstep in exercising the statutory power of sale would be compensable in damages. The applicant therefore failed the second, conjunctive limb.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability and nugatory tests conjunctively; satisfying only one limb is insufficient.
- An appeal is rendered nugatory where what is sought to be stayed is irreversible or incapable of being recompensed by an award of damages; where the respondent is a licensed and regulated commercial bank, loss arising from exercise of the statutory power of sale is compensable in damages.
Court orders
#- 1.The application dated 1st March 2025 is dismissed
- 2.Costs of the application to the respondents
- On appeal from
- High Court
- Eldoret High Court Civil Case No E020 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Family Bank Ltd & another (Civil Appeal (Application) E008 of 2025) [2026] KECA 1629 (KLR)", Case Analysis (2026). Not stated in the judgment (application by notice of motion dated 1st March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1629/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.