A pending appeal and an order stopping enforcement are different things. That distinction can matter acutely where a family remains in a mortgaged home after an auction. Even an appeal deserving a hearing does not automatically preserve occupation while the challenge proceeds.
In Imbuye and another v Kenya Commercial Bank Limited and Watts Auctioneers, Court of Appeal at Nairobi, Civil Application No. NAI E745 of 2025, ruling dated 12 June 2026, the court found the intended appeal arguable. It nevertheless dismissed the application for interim relief, with costs to the respondents, because the applicants had not established the second requirement under rule 5(2)(b). (Paragraphs 33-36.)
What the applicants wanted protected
The application followed High Court orders of 11 December 2025 in a commercial mortgage dispute. According to the applicants, the High Court had vacated consent status quo orders and directed them to leave their matrimonial property in Nairobi. They sought an injunction protecting occupation, a stay of those orders and a stay of the High Court proceedings pending appeal. (Paragraphs 2-3 and 14.)
Their account raised several contested issues. They said substantial mortgage payments had been made, challenged the statutory notices and valuation, and disputed how the court had handled their contempt application. They also maintained that a transfer had occurred despite existing status quo orders. These were their allegations and grounds of challenge, not findings that the bank had acted unlawfully. (Paragraphs 4-13.)
The bank opposed relief. Its position was that the applicants had repeatedly failed to meet a KSh4 million deposit condition, so injunctive protection had not crystallised. It said the property had been sold at public auction on 8 July 2025 and that the later status quo consent could not revive an expired injunction. (Paragraphs 16-20.)
For an owner or adviser, this disagreement illustrates why the wording and timing of each order matter. A reference to "status quo" does not, without its surrounding record, explain what position was being preserved or whether an earlier condition had been satisfied.
Two requirements, not one
The appellate court explained that an applicant had to establish both an arguable appeal and the risk that refusing relief would render a successful appeal nugatory. An arguable appeal need not be certain to succeed; it must raise a genuine issue deserving consideration. At this interim stage, the court also cautioned against definitive findings that would pre-empt the main appeal. (Paragraphs 29-32.)
The applicants satisfied the first requirement. The court identified arguable questions about vacating the consent orders, participation in the proceedings, treatment of the contempt application and the basis for directing eviction. That opened issues for argument; it did not decide them in the applicants' favour. (Paragraph 33.)
They did not satisfy the second requirement. In its interim assessment, the court stated that the record showed a lawful auction to a bona fide purchaser protected under section 99 of the Land Act. It also considered that damages could compensate loss if the appeal succeeded. (Paragraphs 34-35.)
The court acknowledged attachment to a family home but required evidence of particular features making compensation inadequate. It found that burden unmet, and noted that the bank's ability to pay damages had not been doubted by the applicants. The motion therefore failed, with costs to the respondents. (Paragraphs 35-36.)
Read the protection, not just the dispute
This ruling refused interim relief; it was not the final determination of the intended appeal. No later proceedings or present occupation have been checked for this account. Transaction-specific advice should distinguish the appeal's existence, operative orders, conditions and subsequent developments.
See how ArdhiScore works with parcel intelligence from available court, gazette and field evidence. Coverage varies. That evidence can inform questions for professional review, but does not guarantee prevention of loss, complete coverage or clean title, and does not replace official checks.