Mathew Musau Kithilu v Co-operative Bank of Kenya Limited, Loneview Developers Limited & Suraya Property Group Limited
The bottom line
#The Court of Appeal refused to stop Co-operative Bank from acting on charged property because the buyer's claim was purely monetary and the Bank can pay damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal would be rendered nugatory absent an injunction
No. The applicant's claim against Suraya, and by extension the Bank, was monetary in nature, and the Bank's unrefuted affidavit evidence showed it could meet any award.
The court examined the 12th September 2015 agreement and found the applicant's core claim was compensation for unpaid purchase consideration - a monetary claim. Florence Njuguna's affidavit asserted the Bank is a first-tier bank able to satisfy any award; the applicant did not refute this. Damages would therefore be an adequate remedy, defeating the second limb of the Rule 5(2)(b) test.
Whether the intended appeal is arguable
The court assumed without deciding that the intended appeal was arguable, but dismissed the application on the nugatory limb alone.
The court expressly declined to resolve arguability, holding that even if the appeal were arguable, failure of the second conjunctive test was fatal. This makes the ruling a pure nugatory-limb decision and leaves the arguability question open for the full appeal.
Legal principles established
#- A Rule 5(2)(b) applicant must satisfy both the arguability and nugatory tests conjunctively; failure on either limb defeats the application.
- Where the underlying claim is monetary and the respondent is shown to be financially able to satisfy any award, the nugatory-prong fails even if the statutory power of sale is irreversible.
Court orders
#- 1.The notice of motion dated 11th September 2024 is dismissed with costs to the 1st respondent
- On appeal from
- Environment and Land Court of Kenya at Machakos
- ELC Case No. E028 of 2023
- 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, "Mathew Musau Kithilu v Co-operative Bank of Kenya Limited, Loneview Developers Limited & Suraya Property Group Limited", Case Analysis (2026). Civil Application No. NAI. E469 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1805/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.