Facing a proposed property sale and having an appeal to pursue are not the same as obtaining an order stopping that sale. In this case, the Court of Appeal found a mismatch between an application's heading and its actual requests. The borrower sought a stay of a judgment that had simply dismissed her earlier appeal.
The dispute beneath the application
In Kihoi v Faulu Microfinance Bank Limited, Civil Application No. NAI E269 of 2025, the Court of Appeal at Nairobi delivered its ruling on 3 October 2025. The matter concerned an application pending an intended appeal, not the hearing and determination of that appeal. (Page 1, paragraph 1; pages 9-10, paragraphs 18-19 and dated closing.)
The ruling describes a dispute over whether an earlier registered property charge could secure later advances. The borrower argued that the original facility had been repaid and that a letter of offer could not lawfully extend the earlier security to another loan. The bank opposed the application, maintaining that the disputed repayment and security questions had already been decided against her. These were competing positions, not fresh appellate findings resolving the charge dispute. (Pages 2-3, paragraphs 2-6; pages 5-7, paragraphs 11-14.)
The borrower's claim had been dismissed in the Ruiru Magistrate's Court. The High Court at Thika then dismissed her appeal on 3 April 2025. She filed a notice of appeal and sought temporary protection in the Court of Appeal. (Pages 1-3, paragraphs 1-5.)
The heading did not supply the missing remedy
The motion dated 28 April 2025 invoked rule 5(2)(b). Although its heading described an application for an injunction, the court examined the relief actually requested in the motion. Those requests sought a stay of execution of the High Court judgment; none sought an injunction. (Page 1, paragraph 1; page 9, paragraph 18.)
That difference was decisive. The High Court had dismissed an appeal. Apart from costs, it had not directed the borrower to do anything or refrain from doing anything. The Court of Appeal treated this as a negative order that could not be stayed in the manner requested. The proposed sale concerned the bank's claimed security rights; it was not a new command to sell made by that dismissal. (Page 2, paragraph 2; pages 8-10, paragraphs 16-18.)
The practical distinction is between suspending the execution of an operative order and asking for a restraint against a threatened act. Describing an application as an injunction did not turn its actual stay requests into one.
Why the usual two-part test was not enough
The court recited the usual requirements for this type of application: an arguable intended appeal and a risk that the appeal would be rendered nugatory without protection. But before engaging those two questions, it required an order capable of being stayed. (Page 8, paragraphs 15-16.)
The borrower had argued that a sale would cause loss that money could not adequately remedy. The bank disputed both arguability and the claimed loss. The ruling did not resolve those competing positions through a fresh assessment of the loan evidence. It disposed of the motion on the nature of the order and the relief sought. (Pages 4-10, paragraphs 7-19.)
The exact result and its limit
The Court of Appeal dismissed the motion with costs to the bank. It expressly noted that the borrower could still pursue her intended appeal, while holding that the requested rule 5(2)(b) relief did not lie. This was not a dismissal of the intended appeal itself. (Pages 9-10, paragraphs 18-19.)
Nor does the ruling establish that a differently framed application would succeed. The useful lesson is to compare the threatened act, the judgment's operative words and the motion's actual prayers before assuming that interim protection exists.
Questions for a charged-property file
- What registered charge and later lending documents does the lender rely on for the proposed sale?
- What records address repayment and discharge, and which points remain disputed?
- Does the judgment require a positive act, or does it dismiss a claim or appeal apart from costs?
- What relief does the application actually request, and what dated order, if any, restrains the sale?
These are questions for the actual documents and a qualified Kenyan advocate, not instructions to select a remedy or deadline without advice.
Source and present-day limits
The source is the official Judiciary October 2025 archive, specifically the ten-page E269 ruling, paragraphs 1-19, read on 30 September 2026. Later appeal outcomes, sale and enforcement history have not been independently verified for this article. No completed sale, present debt position or current enforceability is asserted.
If considering ArdhiScore, review its screening scope and limitations. Screening does not establish ownership, suspend enforcement or guarantee that every relevant record will be found.