(Being an appeal from the ruling of Hon. W. K. Chepseba, Chief Magistrate, delivered on the 30 th September 2025 in CMCC No. E003 of 2024).
RULING.
Introduction.
1. This appeal emanates from the ruling of the Hon. M. C. Chepseba delivered on the 30 th September 2025 . In the said ruling, the court did determine the application for review that had been filed by the Appellant herein seeking for a stay of execution of the ruling of the court made on the 28 th November 2024 .
2. The Appellant had filed an application dated 6 th January 2024, seeking primarily for the court to grant a restraining order against the Respondent by itself, servants, employees, agents or anyone acting on its behalf from attaching and selling the Appellants motor vehicle registration number KCW 473H, Toyota Pick Up .
3. The Appellant further sought for the court to order the unfreezing of the Appellants account number 2043512644 and the accounts at Equity Bank being numbers 0330166620943 and 0330279102803 and allow the Appellant access to the said accounts.
4. The court did consider the application, the affidavits and documents of the parties and submissions and proceeded to dismiss the same as lacking merit. Triggered by the said outcome, the Appellant filed another application dated 16 th December 2024. In a ruling delivered on the 30 th September 2025, the court equally dismissed the said application. It is this dismissal that has triggered the present appeal.
5. In the application by way of Notice of motion dated 30 th October 2025, the Appellant sought the following orders:
“ 1. That the application be certified as urgent and be heard ex parte in the first instance.
2. There be a stay of execution of the ruling and/or orders of the Honorable Chief Magistrates Hon. W.K Chepseba, delivered on 30th September 2025 in Civil Case No. 03 of 2024, pending the hearing and determination of the Applicant's intended appeal to this Honorable court.
3. Costs of this Application be in the cause.
4. Any other or further orders be made as this Honourable court may deem fit and just in the circumstances.
5. Costs of this application be provided .
6. The application was not certified urgent and the Appellant was directed to serve the application. At the mention on the 4 th march 2026, the parties were directed to file their submissions to enable the court make a determination on the application. Unfortunately, the Appellants Advocate filed a Notice of Cessation to Act dated 14 th May 2026 and though he was personally served with the directions and notice of the ruling, he did not file any submissions, as at the time of the ruling.
Analysis and determination .
7. In the ruling dated 28 th November 2024, the court did consider at length the application by the Appellant and the affidavits and submissions of the respective parties and determined that the Appellant had not met the principles laid out in the Giella vs Cassman Brown & Another (1973) EA 358 and proceeded to dismiss the application. The court also considered the following authorities relied upon by the Appellant being ABSA Bank vs De Villiers & Another (2009) (5) S.A 40C, Jason Okemwa & Co. Advocates vs Daniel Mudanyi Ochienja (2021) eKLR, Paul Gitonga Wanjau vs Gathuthi Tea Factory Ltd & 2 Others (2016) eKLR .
8. The Respondent relied on Mrao Ltd vs First American Bank Kenya & 2 Others (2003) KLR 125, Yusuf Abdi Ali Co. Ltd vs Family Bank Ltd (2014) eKLR and Nguruman Limited vs Jan Bond Neilsen & 2 Others (2014) eKLR , among others.
9. The facts before the lower court are that the Appellant did obtain loan facilities from the Respondent of Kshs. 9,284,000.00 in three tranches of Kshs. 4,500,000.00, Kshs. 2,784,000.00 and Kshs. 2,000,000.00 respectively. The Appellant defaulted in the repayment of the loan and at the time of the application was in arrears of a total Kshs. 5,554,338.85.
10. In securing the facilities, the Appellant had pledged his motor vehicle registration number KCW 473H as security and on default, the Respondent proceeded to attach the said motor vehicle as per the Asset Finance Credit Agreement dated 26 th January 2022. The attached was the reason that precipitated the filing of the application dated 6 th January 2024.
11. Is there reason for the court to disturb the determination of the lower court? This being a first appeal, the court is under a duty to independently consider the facts and evidence relied upon by the trial court and arrive at its own conclusion, to either uphold or upset the ruling of the lower court. I am guided by the citation in Selle and Another vs Associated Motor Boat Co. Ltd (1968) EA 123 . The court stated thus in that case:
“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally”.
12. Reverting back to the present case, I have carefully considered the reasoned ruling of the trial court. The court relied on the principles laid out in the Giella case wherein the Applicant needs to demonstrate that:
a. The application needs to establish that they have a prima facie case with a high probability of success.
b. That unless the orders are granted, the Applicant will suffer irreparable harm that cannot be compensated by the award of damages.
c. If the court is in doubt, it will determine on a balance of convenience .
13. Upon considering the averments, documents and submissions of the parties, the court determined that the Appellant had not met the requirements and proceeded to dismiss the application. In summary, the Appellant having defaulted in the repayments of the facilities advanced by the Respondent, they did not meet the 1 st target of the required limbs. In addition, the Appellant had pledged the subject suit motor vehicle as security with the understanding that in case of default, the Respondent was under a duty to attach and dispose for the purpose of recovery of any outstanding sums. The default is what had triggered the attachment of the suit motor vehicle by the Respondent. The same thus removed the punch for the Appellants plea seeking to restrain the Respondent from selling the same to recover the outstanding sums.
14. I see no effort by the Appellant to demonstrate therefore that the attachment would occasion irreparable harm that the Respondent could not make good. The second limb of the principles thus also falls. Without the two limbs, the Appellants application is thus ungrounded.
15. It also arose that the Appellant have not been granted a stay of execution, the subject motor vehicle had already been sold and thus the orders sought would be in vain, if granted. The respondent urged the court to dismiss the application. As already stated, the Appellant did not file any submissions in this matter.
16. I see no reason to disturb the rulings of the trial court dated 28 th November 2024 and 30 th September 2025. The Appellant did not convince the trial court and neither has he demonstrated to this court that there are grounds to warrant the review of the orders of the trial court.
17. I proceed to therefore dismiss the Appellants application dated 30 th October 2025 with costs to the Respondent .
Dated, signed and delivered virtually via Microsoft Teams this 3 rd Day of September 2026.
HCCA NO. E039 OF 2025 PETER LIANI WANJALA VS ABSA BANK KENYA PLC RULING Pg. 5
RULING.
Introduction.
1. This appeal emanates from the ruling of the Hon. M. C. Chepseba delivered on the 30 th September 2025 . In the said ruling, the court did determine the application for review that had been filed by the Appellant herein seeking for a stay of execution of the ruling of the court made on the 28 th November 2024 .
2. The Appellant had filed an application dated 6 th January 2024, seeking primarily for the court to grant a restraining order against the Respondent by itself, servants, employees, agents or anyone acting on its behalf from attaching and selling the Appellants motor vehicle registration number KCW 473H, Toyota Pick Up .
3. The Appellant further sought for the court to order the unfreezing of the Appellants account number 2043512644 and the accounts at Equity Bank being numbers 0330166620943 and 0330279102803 and allow the Appellant access to the said accounts.
4. The court did consider the application, the affidavits and documents of the parties and submissions and proceeded to dismiss the same as lacking merit. Triggered by the said outcome, the Appellant filed another application dated 16 th December 2024. In a ruling delivered on the 30 th September 2025, the court equally dismissed the said application. It is this dismissal that has triggered the present appeal.
5. In the application by way of Notice of motion dated 30 th October 2025, the Appellant sought the following orders:
“ 1. That the application be certified as urgent and be heard ex parte in the first instance.
2. There be a stay of execution of the ruling and/or orders of the Honorable Chief Magistrates Hon. W.K Chepseba, delivered on 30th September 2025 in Civil Case No. 03 of 2024, pending the hearing and determination of the Applicant's intended appeal to this Honorable court.
3. Costs of this Application be in the cause.
4. Any other or further orders be made as this Honourable court may deem fit and just in the circumstances.
5. Costs of this application be provided .
6. The application was not certified urgent and the Appellant was directed to serve the application. At the mention on the 4 th march 2026, the parties were directed to file their submissions to enable the court make a determination on the application. Unfortunately, the Appellants Advocate filed a Notice of Cessation to Act dated 14 th May 2026 and though he was personally served with the directions and notice of the ruling, he did not file any submissions, as at the time of the ruling.
Analysis and determination .
7. In the ruling dated 28 th November 2024, the court did consider at length the application by the Appellant and the affidavits and submissions of the respective parties and determined that the Appellant had not met the principles laid out in the Giella vs Cassman Brown & Another (1973) EA 358 and proceeded to dismiss the application. The court also considered the following authorities relied upon by the Appellant being ABSA Bank vs De Villiers & Another (2009) (5) S.A 40C, Jason Okemwa & Co. Advocates vs Daniel Mudanyi Ochienja (2021) eKLR, Paul Gitonga Wanjau vs Gathuthi Tea Factory Ltd & 2 Others (2016) eKLR .
8. The Respondent relied on Mrao Ltd vs First American Bank Kenya & 2 Others (2003) KLR 125, Yusuf Abdi Ali Co. Ltd vs Family Bank Ltd (2014) eKLR and Nguruman Limited vs Jan Bond Neilsen & 2 Others (2014) eKLR , among others.
9. The facts before the lower court are that the Appellant did obtain loan facilities from the Respondent of Kshs. 9,284,000.00 in three tranches of Kshs. 4,500,000.00, Kshs. 2,784,000.00 and Kshs. 2,000,000.00 respectively. The Appellant defaulted in the repayment of the loan and at the time of the application was in arrears of a total Kshs. 5,554,338.85.
10. In securing the facilities, the Appellant had pledged his motor vehicle registration number KCW 473H as security and on default, the Respondent proceeded to attach the said motor vehicle as per the Asset Finance Credit Agreement dated 26 th January 2022. The attached was the reason that precipitated the filing of the application dated 6 th January 2024.
11. Is there reason for the court to disturb the determination of the lower court? This being a first appeal, the court is under a duty to independently consider the facts and evidence relied upon by the trial court and arrive at its own conclusion, to either uphold or upset the ruling of the lower court. I am guided by the citation in Selle and Another vs Associated Motor Boat Co. Ltd (1968) EA 123 . The court stated thus in that case:
“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally”.
12. Reverting back to the present case, I have carefully considered the reasoned ruling of the trial court. The court relied on the principles laid out in the Giella case wherein the Applicant needs to demonstrate that:
a. The application needs to establish that they have a prima facie case with a high probability of success.
b. That unless the orders are granted, the Applicant will suffer irreparable harm that cannot be compensated by the award of damages.
c. If the court is in doubt, it will determine on a balance of convenience .
13. Upon considering the averments, documents and submissions of the parties, the court determined that the Appellant had not met the requirements and proceeded to dismiss the application. In summary, the Appellant having defaulted in the repayments of the facilities advanced by the Respondent, they did not meet the 1 st target of the required limbs. In addition, the Appellant had pledged the subject suit motor vehicle as security with the understanding that in case of default, the Respondent was under a duty to attach and dispose for the purpose of recovery of any outstanding sums. The default is what had triggered the attachment of the suit motor vehicle by the Respondent. The same thus removed the punch for the Appellants plea seeking to restrain the Respondent from selling the same to recover the outstanding sums.
14. I see no effort by the Appellant to demonstrate therefore that the attachment would occasion irreparable harm that the Respondent could not make good. The second limb of the principles thus also falls. Without the two limbs, the Appellants application is thus ungrounded.
15. It also arose that the Appellant have not been granted a stay of execution, the subject motor vehicle had already been sold and thus the orders sought would be in vain, if granted. The respondent urged the court to dismiss the application. As already stated, the Appellant did not file any submissions in this matter.
16. I see no reason to disturb the rulings of the trial court dated 28 th November 2024 and 30 th September 2025. The Appellant did not convince the trial court and neither has he demonstrated to this court that there are grounds to warrant the review of the orders of the trial court.
17. I proceed to therefore dismiss the Appellants application dated 30 th October 2025 with costs to the Respondent .
Dated, signed and delivered virtually via Microsoft Teams this 3 rd Day of September 2026.
HCCA NO. E039 OF 2025 PETER LIANI WANJALA VS ABSA BANK KENYA PLC RULING Pg. 5