1. The matter before the Court is an interlocutory appeal arising from the subordinate Court. It pits a borrower fighting to save his properties against a financial institution seeking to realize its security. The Appellant seeks the equitable intervention of the Court to halt an impending auction. The Appellant failed to secure an injunction before the Trial Court.
Background Facts
2. The genesis of this dispute lies in a commercial credit facility. The Appellant charged the properties known as Title Numbers NGONG/NGONG/58425 and NGONG/NGONG/58426 to the 1st Respondent. The charge was meant to secure a loan facility of Kshs. 7,850,000. The Appellant subsequently defaulted on the repayment terms. This default triggered the 1st Respondent to issue statutory notices.
3. Following the issuance of the statutory notices, the Appellant instituted a suit in the Trial Court. The suit was registered as MCCOMMSU/E1408/2025. The Appellant filed an application for a temporary injunction to stop the sale. The Trial Court heard the application and dismissed it through a ruling delivered on 13th February, 2026. The Trial Court found that the Appellant failed to meet the legal threshold for the grant of interlocutory relief. Aggrieved by that dismissal, the Appellant lodged the present appeal.
4. The Court is now asked to determine the Appellant's Notice of Motion dated 28th February, 2026. The Application sets out the prayers sought as follows:
1. THAT this Application be certified urgent and heard ex parte in the first instance.
2. THAT pending the hearing and determination of this Application, this Honourable Court be pleased to issue a temporary injunction ordering the Respondents by themselves, their servants and/or their agents from advertising, selling, transferring, alienating, or otherwise dealing with the properties known as NGONG/ NGONG/ 58425 and NGONG/NGONG/58426.
3. THAT pending the hearing and determination of this Appeal, this Honourable Court be pleased to issue a temporary injunction Ordering the Respondents by themselves, their servants and/or their agents from advertising, selling, transferring, alienating, or otherwise dealing with the properties known as NGONG/NGONG/58425 and NGONG/NGONG/58426.
4. THAT pending the hearing and determination of this Appeal, this Honourable Court be pleased to issue a stay of proceedings in MCCOMMSU/E1408/2025.
5. THAT the Applicant be granted the temporary injunction on such reasonable terms as to security as this Honourable Court may deem fit.
6. THAT costs of this Application be in the Appeal.
5. The Application is supported by the Affidavit of Joseph Macheru Ngunjiri. The Appellant grounds the application on the assertion that the intended appeal raises arguable questions of law. The Appellant contends that the Trial Court misapplied the principles governing interlocutory injunctions. The Appellant faults the Trial Court for failing to preserve the equity of redemption.
6. The Appellant further argues that the Trial Court prematurely determined disputed facts at an interlocutory stage. The dispute involves the loan account balance, the computation of interest, and arbitrary penalties. The Appellant strongly alleges a breach of the in duplum rule. The financial conflict between the parties is substantial and forms the core of the dispute.
7. The Appellant maintains that the suit properties constitute a matrimonial home. The Appellant avers that a statutory sale would cause irreparable loss. The Appellant adds that the application was filed promptly. The Appellant asserts that the balance of convenience favours preservation of the subject matter.
8. The Respondents vehemently oppose the Application via a Replying Affidavit sworn on 11th March, 2026. The 1st Respondent asserts that the Trial Court correctly dismissed the initial injunction application. The 1st Respondent describes the current Application as frivolous, vexatious, and a blatant abuse of the court process.
9. On the accounts, the 1st Respondent disputes the inflated figures presented by the Appellant. The 1st Respondent states that the outstanding debt is Kshs. 8,412,118.30. The 1st Respondent maintains that the statutory power of sale has validly crystallized following persistent default.
10. The 1st Respondent relies on extensive case law to anchor its objections. The Court acknowledges the authorities cited by the 1st Respondent, which set a high threshold for interfering with a chargee's exercise of statutory power of sale.
Issues for Determination
11. The Court has carefully considered the pleadings, the competing narratives, the written submissions, and the cited authorities. The Court identifies the following four issues for determination:
(a) Whether the Court has the jurisdiction to grant an injunction pending appeal to a party who failed to secure one before the Trial Court.
(b) Whether the Appellant has met the threshold for the grant of an injunction pending appeal.
(c) Whether an order for a stay of proceedings pending appeal is merited.
(d) Who should bear the costs of this application?
Analysis
12. As previously indicated, the application before the Court is filed in an interlocutory appeal. The suit before the Trial Court is yet to be heard and concluded.
13. It is also an application that calls for the exercise of the Court’s discretion. The orders sought do not lie as of right. The Court reminds itself of the onerous duty it has to bear in exercising such discretion. The Court cannot be deemed to be exercising such discretion whimsically. The discretion must be exercised judiciously and not capriciously. The Court must be able to demonstrate the reasons for the exercise of such discretion and that they follow reasons and the application of the law. The Court is bound by the decision of the Court of Appeal in Shah v. Mbogo [1967] EA 116.
(a) Whether the Court has the jurisdiction to grant an injunction pending appeal to a party who failed to secure one before the Trial Court.
14. On the first issue, the Court must address the jurisdictional principle governing interlocutory appeals of this nature. The Respondents suggest that because the Trial Court found no merit in the injunction, this Court should decline to intervene. This argument misapprehends the appellate jurisdiction of the High Court.
15. The jurisdiction to grant an injunction pending an appeal, even after the dismissal of an injunction by a lower court, is a well-established tenet. The Court draws definitive guidance from the English case of Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 448.
16. In Erinford, the Court held that a Judge possesses ample jurisdiction to grant an interim injunction pending an appeal, even after entirely dismissing the applicant's initial motion for an interlocutory injunction. The rationale is rooted in the preservation of the judicial process. The objective is to prevent the appellate Court's ultimate decision from being rendered ineffective, hollow, or nugatory should the appeal ultimately succeed.
17. The Erinford principle has been seamlessly integrated into Kenyan jurisprudence. The dismissal of an injunction at the first instance does not render a Court, including the Appellate Court functus officio regarding the preservation of the suit property pending appellate scrutiny.
18. Furthermore, Order 42 Rule 6(6) of the Civil Procedure Rules grants the High Court explicit power in its appellate jurisdiction to grant a temporary injunction on terms it thinks just. The Rule provides as follows:
“(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
19. Therefore, the Court holds the absolute jurisdiction to entertain this Application. This position finds credence in the decision of Visram J. (as he then was) in Patricia Njeri & 3 Others V National Museum of Kenya [2004] KEHC 1614 (KLR).
(b) Whether the Appellant has met the threshold for the grant of an injunction pending appeal.
20. On the second issue, the grant of an injunction pending appeal is an exercise of judicial discretion. The guiding principles were comprehensively laid down in Patricia Njeri & 3 Others v National Museums of Kenya [2004] eKLR. The Court in summary held that:
(a) An order of injunction pending appeal is discretionary and will be refused if the appeal is frivolous.
(b) The Applicant must show that refusing the injunction would render the appeal nugatory, bearing in mind the purpose is to preserve the subject matter.
(c) The Court must also evaluate the balance of convenience to ensure the order does not inflict greater hardship than it avoids.
(d) The foundational principles of Giella v. Cassman Brown [1973] EA 358 remain highly relevant.
21. The Court set out the 4-way test as follows:
“In the Venture Capital case, the Court of Appeal said that an order for injunction pending appeal is a discretionary matter. The discretion must, however, be “exercised judicially and not in whimsical or arbitrary fashion.” This discretion is guided by certain principles some of which are as follows:
(a) The discretion will be exercised against an Applicant whose appeal is frivolous (See Madhupaper International Limited vs Kerr (1985) KLR 840 (cited in Venture Capital). The Applicant must state that a reasonable argument can be put forward in support of his appeal (J. K. Industries vs KCB (1982 – 88) KLR 1088 (also cited in Venture Capital)
(b) The discretion should be refused where it would inflict greater hardship than it would avoid (See Madhupaper supra).
(c) The Applicant must show that to refuse the injunction would render his appeal nugatory (See Butt vs Rent Restriction Tribunal (1982) KLR 417 (cited also in Venture Capital).
(d) The Court should also be guided by the principles in Giella vs Cassman Brown & Company Ltd (1973) EA 358 as set out in the case of Shitukha Mwamodo & Others (1986) KLR 445 (also cited in Venture Capital).”
22. The Court must first determine if the Appellant has established a prima facie arguable appeal. The Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd [2003] eKLR defined a prima facie case. The Court stated it is a case where, on the material presented, a tribunal properly directing itself will conclude that a right has apparently been infringed. This infringement calls for an explanation or rebuttal. It is a standard higher than a mere arguable case, but it does not mean a case that must inevitably succeed at trial.
23. The Appellant has raised the issue of the in duplum rule. The Appellant alleges a recovery demand of Kshs. 20,533,500.70 against a principal advance of Kshs. 7,850,000. If these figures are proven accurate, the demand constitutes 261.57% of the principal. Section 44A of the Banking Act strictly limits the recovery of interest to the principal amount owed when a loan becomes non-performing. The mathematical disparity between the 1st Respondent's claim and the Appellant's computation creates a serious triable issue.
24. An allegation of an in duplum violation directly challenges the legality and exactitude of the sum demanded. A statutory power of sale cannot be validly exercised on the foundation of an illegal or statutorily barred demand. The Appellant has established a prima facie arguable appeal. The Court is persuaded that the Appeal is neither frivolous nor can it be said to inflict greater hardship than it seeks to avoid.
25. The Court must next ask whether the appeal will be rendered nugatory if the injunction is denied. The properties in question face imminent statutory sale. The Court notes the precedent in Matex Commercial Supplies Limited & Another v Euro Bank Limited (In Liquidation) [2007] KEHC 2428 (KLR). In the Matex case the Court observed that where a property is charged to secure a loan, it becomes a commercial commodity. The loss of such property can ordinarily be compensated by damages.
26. However, the Matex principle must be harmonized with the Erinford principle in the context of an appeal. If the properties are sold to an innocent third party, the substratum of the appeal is completely destroyed. The appeal, which specifically questions the exact amount owed and the legality of the statutory notices, would become a hollow, academic exercise. The Court must preserve the property to protect the appeal's integrity. The balance of convenience hence tilts in favour of the Applicant.
(c) Whether an order for a stay of proceedings pending appeal is merited.
27. On the third issue, the Appellant seeks a stay of proceedings in the Trial Court pending the appeal. The relevant principles for a stay of proceedings were articulated in Christopher Ndolo Mutuku & another v Cfc Stanbic Bank Limited [2015] KEHC 6751 (KLR).
28. The Court in Christopher Ndolo Mutuku stated that a stay of proceedings relies on the overall impression of the total circumstances. The circumstances must arouse a compulsion that a stay should issue in the interest of justice. The Applicant must establish a prima facie arguable case, demonstrate expeditious filing, and show sufficient cause.
29. The Trial Court delivered its ruling on 13th February, 2026. The Appellant filed the present Application barely two weeks later, on 28th February, 2026. The Court finds this to be highly expeditious.
30. Allowing the Magistrate Court to proceed to full trial while this Court determines the validity of the interlocutory findings on the in duplum rule would make good use of judicial time and resources.
31. Ultimately, the nature of an injunction sought before the Trial Court was on an interim basis. This was to enable the Applicant pursue the hearing and determination of his dispute, even as the suit properties are preserved. Evidence is yet to be presented before the Trial Court so that it can make a final determination. Nothing would stop the parties from approaching this Court on an appeal from the final determination. The Court should be seen to lean towards having disputes determined with finality, unless serious prejudice to a party is demonstrated. An example would be failure by the Trial Court to adhere to the rules of natural justice. That has not been alluded to in this case.
32. To this Court, there is no prejudice if the parties pursue the hearing of the real dispute before the Trial Court. Once again, this Court reminds itself that this is an interlocutory Appeal. The real dispute is yet to be canvassed before the Trial Court. To stay proceedings at this juncture would be to hamstring the Trial Court, which has its own docket, timelines and schedules for disposal of cases before it. This Court is not persuaded that it should grant a stay of proceedings.
(d)Who should bear the costs of this application?
33. On the fourth issue, the award of costs is at the absolute discretion of the Court. Since this is an interlocutory application that preserves the status quo, the most prudent approach is to direct that the costs of this Application abide the final outcome of the Appeal.
34. The 1st Respondent has a contractual right to recover its debt. However, a successful auction at this juncture would irreversibly destroy the subject matter of the appeal before the Appellant's grievances on the in duplum rule are heard. The law requires the Court to prevent the appeal from becoming an academic exercise. The 1st Respondent's commercial interests remain fully protected because the Court will impose strict financial conditions on the Appellant to secure the injunction.
35. The Court must balance the scales of equity. The Appellant deserves the right to exercise his appellate mandate. Simultaneously, the 1st Respondent cannot be unfairly restrained while the debt accrues. Equity demands that the Appellant demonstrates commitment by providing reasonable security, as mandated by Order 42 Rule 6(6) of the Civil Procedure Rules. The 1st Respondent submitted that the outstanding debt as of 5th December, 2025, is Kshs. 8,412,118.30.
36. The Court will allow the application subject to the Applicant furnishing security in form of a deposit of Kshs. 4,000,000.00
Determination
37. The Court allows the application by way of a Notice of Motion dated 28th February, 2026 subject to the conditions set out hereunder:
(a) THAT pending the hearing and determination of this Appeal, this Honourable Court HEREBY issues a temporary injunction restraining the Respondents by themselves, their servants and/or their agents from advertising, selling, transferring, alienating, or otherwise dealing with the properties known as NGONG/NGONG/58425 and NGONG/NGONG/58426.
(b) THAT order (a) above is strictly subject to the Appellant depositing the sum of Kshs. 4,000,000 (Four Million Kenya Shillings) into a joint interest-earning account in the names of the Advocates for the Appellant and the Advocates for the 1st Respondent within sixty (60) days from the date of this Ruling. In the event that parties cannot agree on the choice of the bank, the said sum is to be deposited with the Court in any event within five (5) days from the date of expiry of the sixty days.
(c) THAT in default of compliance within the timelines stipulated, the order of temporary injunction shall automatically lapse, and the 1st Respondent shall be at liberty to exercise its statutory power of sale.
(d) THAT the prayer for a stay of proceedings in MCCOMMSU/E1408/2025 is HEREBY declined.
(e) THAT the costs of this Application be in the Appeal.
38. It is so ordered.
DATED, SIGNED and DELIVERED at MILIMANI this 21st Day of September, 2026.
JUSTICE NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Wahome for the Applicant/Appellant.
Miss Wameyo for the Respondent.
Mr. John Paul – Court Assistant.
Background Facts
2. The genesis of this dispute lies in a commercial credit facility. The Appellant charged the properties known as Title Numbers NGONG/NGONG/58425 and NGONG/NGONG/58426 to the 1st Respondent. The charge was meant to secure a loan facility of Kshs. 7,850,000. The Appellant subsequently defaulted on the repayment terms. This default triggered the 1st Respondent to issue statutory notices.
3. Following the issuance of the statutory notices, the Appellant instituted a suit in the Trial Court. The suit was registered as MCCOMMSU/E1408/2025. The Appellant filed an application for a temporary injunction to stop the sale. The Trial Court heard the application and dismissed it through a ruling delivered on 13th February, 2026. The Trial Court found that the Appellant failed to meet the legal threshold for the grant of interlocutory relief. Aggrieved by that dismissal, the Appellant lodged the present appeal.
4. The Court is now asked to determine the Appellant's Notice of Motion dated 28th February, 2026. The Application sets out the prayers sought as follows:
1. THAT this Application be certified urgent and heard ex parte in the first instance.
2. THAT pending the hearing and determination of this Application, this Honourable Court be pleased to issue a temporary injunction ordering the Respondents by themselves, their servants and/or their agents from advertising, selling, transferring, alienating, or otherwise dealing with the properties known as NGONG/ NGONG/ 58425 and NGONG/NGONG/58426.
3. THAT pending the hearing and determination of this Appeal, this Honourable Court be pleased to issue a temporary injunction Ordering the Respondents by themselves, their servants and/or their agents from advertising, selling, transferring, alienating, or otherwise dealing with the properties known as NGONG/NGONG/58425 and NGONG/NGONG/58426.
4. THAT pending the hearing and determination of this Appeal, this Honourable Court be pleased to issue a stay of proceedings in MCCOMMSU/E1408/2025.
5. THAT the Applicant be granted the temporary injunction on such reasonable terms as to security as this Honourable Court may deem fit.
6. THAT costs of this Application be in the Appeal.
5. The Application is supported by the Affidavit of Joseph Macheru Ngunjiri. The Appellant grounds the application on the assertion that the intended appeal raises arguable questions of law. The Appellant contends that the Trial Court misapplied the principles governing interlocutory injunctions. The Appellant faults the Trial Court for failing to preserve the equity of redemption.
6. The Appellant further argues that the Trial Court prematurely determined disputed facts at an interlocutory stage. The dispute involves the loan account balance, the computation of interest, and arbitrary penalties. The Appellant strongly alleges a breach of the in duplum rule. The financial conflict between the parties is substantial and forms the core of the dispute.
7. The Appellant maintains that the suit properties constitute a matrimonial home. The Appellant avers that a statutory sale would cause irreparable loss. The Appellant adds that the application was filed promptly. The Appellant asserts that the balance of convenience favours preservation of the subject matter.
8. The Respondents vehemently oppose the Application via a Replying Affidavit sworn on 11th March, 2026. The 1st Respondent asserts that the Trial Court correctly dismissed the initial injunction application. The 1st Respondent describes the current Application as frivolous, vexatious, and a blatant abuse of the court process.
9. On the accounts, the 1st Respondent disputes the inflated figures presented by the Appellant. The 1st Respondent states that the outstanding debt is Kshs. 8,412,118.30. The 1st Respondent maintains that the statutory power of sale has validly crystallized following persistent default.
10. The 1st Respondent relies on extensive case law to anchor its objections. The Court acknowledges the authorities cited by the 1st Respondent, which set a high threshold for interfering with a chargee's exercise of statutory power of sale.
Issues for Determination
11. The Court has carefully considered the pleadings, the competing narratives, the written submissions, and the cited authorities. The Court identifies the following four issues for determination:
(a) Whether the Court has the jurisdiction to grant an injunction pending appeal to a party who failed to secure one before the Trial Court.
(b) Whether the Appellant has met the threshold for the grant of an injunction pending appeal.
(c) Whether an order for a stay of proceedings pending appeal is merited.
(d) Who should bear the costs of this application?
Analysis
12. As previously indicated, the application before the Court is filed in an interlocutory appeal. The suit before the Trial Court is yet to be heard and concluded.
13. It is also an application that calls for the exercise of the Court’s discretion. The orders sought do not lie as of right. The Court reminds itself of the onerous duty it has to bear in exercising such discretion. The Court cannot be deemed to be exercising such discretion whimsically. The discretion must be exercised judiciously and not capriciously. The Court must be able to demonstrate the reasons for the exercise of such discretion and that they follow reasons and the application of the law. The Court is bound by the decision of the Court of Appeal in Shah v. Mbogo [1967] EA 116.
(a) Whether the Court has the jurisdiction to grant an injunction pending appeal to a party who failed to secure one before the Trial Court.
14. On the first issue, the Court must address the jurisdictional principle governing interlocutory appeals of this nature. The Respondents suggest that because the Trial Court found no merit in the injunction, this Court should decline to intervene. This argument misapprehends the appellate jurisdiction of the High Court.
15. The jurisdiction to grant an injunction pending an appeal, even after the dismissal of an injunction by a lower court, is a well-established tenet. The Court draws definitive guidance from the English case of Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 448.
16. In Erinford, the Court held that a Judge possesses ample jurisdiction to grant an interim injunction pending an appeal, even after entirely dismissing the applicant's initial motion for an interlocutory injunction. The rationale is rooted in the preservation of the judicial process. The objective is to prevent the appellate Court's ultimate decision from being rendered ineffective, hollow, or nugatory should the appeal ultimately succeed.
17. The Erinford principle has been seamlessly integrated into Kenyan jurisprudence. The dismissal of an injunction at the first instance does not render a Court, including the Appellate Court functus officio regarding the preservation of the suit property pending appellate scrutiny.
18. Furthermore, Order 42 Rule 6(6) of the Civil Procedure Rules grants the High Court explicit power in its appellate jurisdiction to grant a temporary injunction on terms it thinks just. The Rule provides as follows:
“(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
19. Therefore, the Court holds the absolute jurisdiction to entertain this Application. This position finds credence in the decision of Visram J. (as he then was) in Patricia Njeri & 3 Others V National Museum of Kenya [2004] KEHC 1614 (KLR).
(b) Whether the Appellant has met the threshold for the grant of an injunction pending appeal.
20. On the second issue, the grant of an injunction pending appeal is an exercise of judicial discretion. The guiding principles were comprehensively laid down in Patricia Njeri & 3 Others v National Museums of Kenya [2004] eKLR. The Court in summary held that:
(a) An order of injunction pending appeal is discretionary and will be refused if the appeal is frivolous.
(b) The Applicant must show that refusing the injunction would render the appeal nugatory, bearing in mind the purpose is to preserve the subject matter.
(c) The Court must also evaluate the balance of convenience to ensure the order does not inflict greater hardship than it avoids.
(d) The foundational principles of Giella v. Cassman Brown [1973] EA 358 remain highly relevant.
21. The Court set out the 4-way test as follows:
“In the Venture Capital case, the Court of Appeal said that an order for injunction pending appeal is a discretionary matter. The discretion must, however, be “exercised judicially and not in whimsical or arbitrary fashion.” This discretion is guided by certain principles some of which are as follows:
(a) The discretion will be exercised against an Applicant whose appeal is frivolous (See Madhupaper International Limited vs Kerr (1985) KLR 840 (cited in Venture Capital). The Applicant must state that a reasonable argument can be put forward in support of his appeal (J. K. Industries vs KCB (1982 – 88) KLR 1088 (also cited in Venture Capital)
(b) The discretion should be refused where it would inflict greater hardship than it would avoid (See Madhupaper supra).
(c) The Applicant must show that to refuse the injunction would render his appeal nugatory (See Butt vs Rent Restriction Tribunal (1982) KLR 417 (cited also in Venture Capital).
(d) The Court should also be guided by the principles in Giella vs Cassman Brown & Company Ltd (1973) EA 358 as set out in the case of Shitukha Mwamodo & Others (1986) KLR 445 (also cited in Venture Capital).”
22. The Court must first determine if the Appellant has established a prima facie arguable appeal. The Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd [2003] eKLR defined a prima facie case. The Court stated it is a case where, on the material presented, a tribunal properly directing itself will conclude that a right has apparently been infringed. This infringement calls for an explanation or rebuttal. It is a standard higher than a mere arguable case, but it does not mean a case that must inevitably succeed at trial.
23. The Appellant has raised the issue of the in duplum rule. The Appellant alleges a recovery demand of Kshs. 20,533,500.70 against a principal advance of Kshs. 7,850,000. If these figures are proven accurate, the demand constitutes 261.57% of the principal. Section 44A of the Banking Act strictly limits the recovery of interest to the principal amount owed when a loan becomes non-performing. The mathematical disparity between the 1st Respondent's claim and the Appellant's computation creates a serious triable issue.
24. An allegation of an in duplum violation directly challenges the legality and exactitude of the sum demanded. A statutory power of sale cannot be validly exercised on the foundation of an illegal or statutorily barred demand. The Appellant has established a prima facie arguable appeal. The Court is persuaded that the Appeal is neither frivolous nor can it be said to inflict greater hardship than it seeks to avoid.
25. The Court must next ask whether the appeal will be rendered nugatory if the injunction is denied. The properties in question face imminent statutory sale. The Court notes the precedent in Matex Commercial Supplies Limited & Another v Euro Bank Limited (In Liquidation) [2007] KEHC 2428 (KLR). In the Matex case the Court observed that where a property is charged to secure a loan, it becomes a commercial commodity. The loss of such property can ordinarily be compensated by damages.
26. However, the Matex principle must be harmonized with the Erinford principle in the context of an appeal. If the properties are sold to an innocent third party, the substratum of the appeal is completely destroyed. The appeal, which specifically questions the exact amount owed and the legality of the statutory notices, would become a hollow, academic exercise. The Court must preserve the property to protect the appeal's integrity. The balance of convenience hence tilts in favour of the Applicant.
(c) Whether an order for a stay of proceedings pending appeal is merited.
27. On the third issue, the Appellant seeks a stay of proceedings in the Trial Court pending the appeal. The relevant principles for a stay of proceedings were articulated in Christopher Ndolo Mutuku & another v Cfc Stanbic Bank Limited [2015] KEHC 6751 (KLR).
28. The Court in Christopher Ndolo Mutuku stated that a stay of proceedings relies on the overall impression of the total circumstances. The circumstances must arouse a compulsion that a stay should issue in the interest of justice. The Applicant must establish a prima facie arguable case, demonstrate expeditious filing, and show sufficient cause.
29. The Trial Court delivered its ruling on 13th February, 2026. The Appellant filed the present Application barely two weeks later, on 28th February, 2026. The Court finds this to be highly expeditious.
30. Allowing the Magistrate Court to proceed to full trial while this Court determines the validity of the interlocutory findings on the in duplum rule would make good use of judicial time and resources.
31. Ultimately, the nature of an injunction sought before the Trial Court was on an interim basis. This was to enable the Applicant pursue the hearing and determination of his dispute, even as the suit properties are preserved. Evidence is yet to be presented before the Trial Court so that it can make a final determination. Nothing would stop the parties from approaching this Court on an appeal from the final determination. The Court should be seen to lean towards having disputes determined with finality, unless serious prejudice to a party is demonstrated. An example would be failure by the Trial Court to adhere to the rules of natural justice. That has not been alluded to in this case.
32. To this Court, there is no prejudice if the parties pursue the hearing of the real dispute before the Trial Court. Once again, this Court reminds itself that this is an interlocutory Appeal. The real dispute is yet to be canvassed before the Trial Court. To stay proceedings at this juncture would be to hamstring the Trial Court, which has its own docket, timelines and schedules for disposal of cases before it. This Court is not persuaded that it should grant a stay of proceedings.
(d)Who should bear the costs of this application?
33. On the fourth issue, the award of costs is at the absolute discretion of the Court. Since this is an interlocutory application that preserves the status quo, the most prudent approach is to direct that the costs of this Application abide the final outcome of the Appeal.
34. The 1st Respondent has a contractual right to recover its debt. However, a successful auction at this juncture would irreversibly destroy the subject matter of the appeal before the Appellant's grievances on the in duplum rule are heard. The law requires the Court to prevent the appeal from becoming an academic exercise. The 1st Respondent's commercial interests remain fully protected because the Court will impose strict financial conditions on the Appellant to secure the injunction.
35. The Court must balance the scales of equity. The Appellant deserves the right to exercise his appellate mandate. Simultaneously, the 1st Respondent cannot be unfairly restrained while the debt accrues. Equity demands that the Appellant demonstrates commitment by providing reasonable security, as mandated by Order 42 Rule 6(6) of the Civil Procedure Rules. The 1st Respondent submitted that the outstanding debt as of 5th December, 2025, is Kshs. 8,412,118.30.
36. The Court will allow the application subject to the Applicant furnishing security in form of a deposit of Kshs. 4,000,000.00
Determination
37. The Court allows the application by way of a Notice of Motion dated 28th February, 2026 subject to the conditions set out hereunder:
(a) THAT pending the hearing and determination of this Appeal, this Honourable Court HEREBY issues a temporary injunction restraining the Respondents by themselves, their servants and/or their agents from advertising, selling, transferring, alienating, or otherwise dealing with the properties known as NGONG/NGONG/58425 and NGONG/NGONG/58426.
(b) THAT order (a) above is strictly subject to the Appellant depositing the sum of Kshs. 4,000,000 (Four Million Kenya Shillings) into a joint interest-earning account in the names of the Advocates for the Appellant and the Advocates for the 1st Respondent within sixty (60) days from the date of this Ruling. In the event that parties cannot agree on the choice of the bank, the said sum is to be deposited with the Court in any event within five (5) days from the date of expiry of the sixty days.
(c) THAT in default of compliance within the timelines stipulated, the order of temporary injunction shall automatically lapse, and the 1st Respondent shall be at liberty to exercise its statutory power of sale.
(d) THAT the prayer for a stay of proceedings in MCCOMMSU/E1408/2025 is HEREBY declined.
(e) THAT the costs of this Application be in the Appeal.
38. It is so ordered.
DATED, SIGNED and DELIVERED at MILIMANI this 21st Day of September, 2026.
JUSTICE NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Wahome for the Applicant/Appellant.
Miss Wameyo for the Respondent.
Mr. John Paul – Court Assistant.