(Being an appeal from the ruling of Hon. Samuel K. Mutai, Senior Principal Magistrate, delivered on the 26 th August 2024 in CMCC No. E152 of 2022.)
RULING.
1. This matter has a chequered history. For context, I will set out a brief on the background.
2. There are two related suits, arising from the same cause of action and the cases filed were Kitale CMCC No. E149 of 2022 and Kitale CMCC No. E152 of 2022. The present appeal arises from CMCC No. E152 of 2022. Judgments were entered in both files and owing to the delay and/or failure to make good the decretal sums in the two suits, the decree holders did seek to attach the judgment debtor’s goods in execution of the decrees herein.
3. To stop the attachment, the judgment debtors filed an application dated 12 th April, 2024. In the application, the Defendant therein, now the Appellant herein sought that the two files be consolidated and further that the motor vehicle registration number KCK 688U be released back to the Applicant and there be further stay of execution in the matter herein. The Applicant also made a proposal on liquidating the decretal sum and was willing to make a payment of Kshs. 200,000.00 as part payment of the decretal sum and a similar sum to be paid monthly until the matter was concluded.
4. The application was filed under a Certificate of Urgency and the court gave orders the same day, allowing the stay of execution. The order was issued at 4.38 pm. The order was served upon the Respondent herein, Eshikoni Auctioneers at 8.19pm. the matter was then scheduled for mention on the 22 nd April, 2024 before court 2.
5. On that date, the court, upon hearing counsel for the respective parties made the order allowing the release of the motor vehicle registration number KCK 688U on a running attachment pending a further mention on the 13 th May 2024 to confirm the payment proposal. The judgment debtor confirmed having made a payment of Kshs. 200,000.00 on that date.
6. An application dated 29 th April 2024, was then filed by the Appellant herein. It sought for the committal to civil jail of the Respondent, Eshikoni Auctioneers for deliberately disobeying the court orders of 23 rd April 2024and further sought for the assistance of the OCS Kitale Police Station to facilitate compliance with the court orders of 23 rd April 2024. The Respondent had deliberately failed to release the subject motor vehicle as directed by the court and the orders duly served on them. Most interestingly, the Respondent, by their own admission proceeded to sell the subject motor vehicle on the 13 th April, 2024, on the pretext that the orders issued were in CMCC No. E152 of 2022 and not in CMCC No. E149 .
7. The matter of contempt by the Respondent was the subject of the ruling dated 26 th August 2024. It is this ruling that has triggered the present appeal. In the Memorandum of Appeal dated 27 th of August 2024, the Appellant submitted:
“ 1. The Learned Trial Magistrate acted in total disregard of the law when he proceeded to deliver ruling on applications dated 12th April,2024 and application dated 19th April, 2024 in total disregard of law applicable in the circumstances.
2 The Learned Trial Magistrate erred in law and fact when in his ruling he disregarded and/or failed to consider and/or refer to the prayers on the applications, supporting affidavit and further affidavit by the appellant.
3 The Learned Trial Magistrate erred in law and fact when he held that the stay orders in which the auctioneers were in contempt, related to KTL CMCC NO.152 OF 2022 and not KTL CMCC NO.149 of 2022.
4 The Learned Magistrate erred in law and fact for holding that the release orders of 23rd April, 2024 in respect of M/V KCK 688U were in relation to KTL CMCC NO. 152 OF 2022 only and not in KTL CMCC NO.149 OF 2022.
5 The Learned Magistrate erred in law and fact for holding that the release orders of 23rd April, 2024 in respect of M/V KCK 688U were issued when the said vehicle had been sold in KTL CMCC NO.149 OF 2022.
6 The Learned Magistrate erred in law and fact for holding that the Respondent did not disobey the order issued on 23/4/2024 hence not liable to be committed to civil jail.
7 The learned Trial Magistrate erred in law and in fact for failing to appreciate the fact that the total decretal sum in the KTL CMCC 152 OF 2022 and KTL CMCC 149 OF 2022 was Kshs 819,000/= and in which the appellant had paid Kshs 619,000/= and payment which prompted issuance of release orders of M/V Reg. No. KCK 688U on a running attachment.
8 The learned Trial Magistrate erred in fact and in law when he relied on a defective replying affidavit by the respondent's agent Kennedy Shikuku on contempt application which was not commissioned.
9 The learned Trial Magistrate erred in fact and law when he failed to consider that there was no evidence to proof proceeds of sale.
10. The Learned Trial Magistrate erred in law and fact when he failed to appreciate that the counsel for the 1st and 2nd Interested parties herein acknowledged payment of Kshs. 619,000.00 out of Kshs. 819,000.00 from the appellant during the proceedings.
11 The Learned Magistrate erred in law and fact for failing to find that there was no evidence from the counsel for the 1st and 2nd Respondent to proof receipt of the proceed of sale .
8. The Appellant thus sought that the ruling of the trial court be set aside and the Respondent be found to have disobeyed the lawful courts and the they be committed to civil jail and the motor vehicle KCK 688U be released back to the Appellant. The orders granted by the lower court on 26 th August 2024, were as below and the court proceeded to dismiss the application dated 29 th April, 2024.:
“ a) That the orders issued on 12th April 2024 relates to Kitale CMCC No. 152 of 2022 and not Kitale CMCC No. 149 of 2022.
b) That files numbers Kitale CMCC No. 152 of 2022 and Kitale СМСС No. 149 of 2022 were not consolidated as prayed for by the Applicant in the application dated 12th April 2024. In fact, prayer (2) of the said application on consolidation was not granted. Rather prayer (4) of the same application was granted.
c) That upon perusal of Kitale CMCC No. 149 of 2022, I find that there is no application for stay of execution hence no stay orders to stop the sale of the seized movable properties.
d) That the warrants of attachment and sale of movable properties in execution of decree for money were issued on 14th March 2024 in Civil Suit Number 152 of 2022 (Ruling) 145 -20 3 170 10 20- e) f) both files namely Kitale CMCC No. 149 of 2022 and Kitale CMCC No. 152 of 2022.
e) both files namely Kitale CMCC No. 149 of 2022 and Kitale CMCC No. 152 of 2022. That auction of motor vehicle registration number KCK 688U Isuzu S/C pick-up took place on 13th April 2024 and a certificate of sale issued with respect to Kitale CMCC No. 149 of 2022 where there were no orders of stay.
f) That the orders issued on 23rd April 2024 for the release of motor vehicle registration number KCK 688U Isuzu made in case file number 152 of 2022 were issued when the said vehicle had been sold in Kitale CMCC No. 149 of 2022 hence there was no vehicle to be released to the Applicant at that juncture since the order had been overtaken by events” .
9. The core aspect of this appeal is whether the Respondent was in contempt of the orders issued on the 12 th and 22 rd April 2024. The core issues are thus:
a. Was the Respondent in contempt of the orders of the court issued on the 12 th and 22 nd April 2024?
b. If so, what orders should the court issue in the circumstances ?
10. On the first issues, the same goes back to the happenings of 12 th April, 2024. The court, as already stated issued stay orders against the Respondent and from the Affidavit of Service of one Jackson Nyongesa Simiyu, deponed on the 13 th April 2024, he avers that he served Mr. Marende, of the Respondent by WhatsApp on the 12 th April 2024 at 8.19pm . He also served the Interested Parties Advocate on 13 th April 2024 at 10.20 am . Both Mr. Marende and Mr. Gachathi were persons known to him prior to the service.
11. In the Replying Affidavit of the Respondent sworn on the 3 rd June 2024, the Respondent avers at paragraph 4 that they received instructions to attach in the two files and they proceeded to proclaim the Appellants moveable property and later to attach the same after the Appellant failed to make good the decretal sum. The sale of the Appellants property was scheduled for 13 th April 2024. It is noteworthy that first, the application to consolidate the two files was not granted by the court. The applications for stay thus proceeded independently.
12. Secondly, the Respondent did proclaim motor vehicle registration number KCK 688U in both CMCC No, E149 of 2022 and CMCC No. E152 of 2022. The orders for stay was thus made in CMCC No. E152 of 2022. At paragraph 10 of the Replying Affidavit, the Respondent correctly avers that they were served with the order dated 12 th April, 2024 in regard to CMCC No. E152 of 2022 but no order in CMCC No. E149 of 2022. For that reason, they proceeded with the sale of the subject motor vehicle registration number KCK 688U as there were no stay orders in CMCC No. E149 of 2022! They were thus not in contempt of the orders of both 12 th and 22 nd April 2024.
13. All the counsel in this matter filed their submissions in this matter. The core consideration for the court at this point is to determine whether the Respondent, despite service on the 12 th April 2024 and being award and served with the orders of 22 nd April 2024, could still proceed and sell the subject motor vehicle on the 13 th April 2024. A Certificate of Sale is attached to the Record of Appeal and it is dated 13 th April 2024. The reasoning of the Respondent is indeed absurd. It is clear therefore, that the Counsel for the Interested Parties who had already received part payment of the decretal sum were not candid with the court on the 22 nd April 2024 when they acquiesced to the motor vehicle being released to the Appellant on a running attachment, as the same had been sold of the 13 th April 2024.
14. The court on 12 th April 2024 issued clear orders staying the execution of the decree in CMCC No. E152 of 2022 and specifically the sale of the assets seized by the Respondent pending the determination of the application. The stay was to remain in force till 22 nd April 2024. That the Respondent had proclaimed the same motor vehicle in the two files was in the first instance in bad faith. Assuming the Respondent had not been restrained in any of the matters and proceeded to sell the assets in execution of the two decrees, how would the proceeds have been divided among the two decree holders? How would the Respondent make returns as required after the sale, as demanded by the Auctioneers Act, of the Respondent where the same asset is sold in regard to two decrees?
15. To thus hide behind the assertion that there was no order by court in regard to the subject motor vehicle in CMCC No. E149 OF 2022 and to form the basis of the sale was thus “being too clever”. As already noted, the Respondent had proclaimed several of the Appellants assets covering the two files. The prudent move would have required the Respondent to attach a separate asset in view of the express orders in the present file and especially because the application dated 12 th April 2024 had referred to the subject motor vehicle in the application for stay orders. It thus follows that the orders issued on the 12 th April 2024, directing for a stay of execution were directly in regard to the subject motor vehicle which had been seized by the Respondent and precipitated the application of 12 th April 2024. Filing a Certificate of Sale for the attachment in CMCC No. E149 of 2022 for an asset also proclaimed in CMCC No. E152 of 2022 and seeking to escape liability is thus unfounded. It is therefore untruthful to aver on oath as was done at paragraph 11 of the Respondents Replying Affidavit dated 3 rd June 2024 that there were no orders barring the sale of the subject motor vehicle at the time of the sale, the sale being under different case number, notwithstanding.
16. The Respondent and Interested Parties have submitted at length that the sale was proper as there were no orders in CMCC No. E149 of 2022. While the same is true, the actions of the Respondent were contemptuous as the Respondent was aware that the orders affected all the assets proclaimed by the Respondent in CMCC No. E152 of 2022 and that included the subject motor vehicle herein. To the court, the actions of the Respondent were reckless and unprofessional. The Respondent should have come back to court to seek the courts approval to proceed with the sale, in view of the twin attachment.
17. I deem it appropriate to state that courts will frown upon such conduct of the Auctioneer to proclaim assets that are well beyond the decretal sum and thus literally paralyse the work of a judgment debtor. Being in debt is not a basis for an auctioneer to shut down the work of a judgment debtor as the auctioneer then puts themselves in a place where they could literally cart away all the assets of the judgment debtor.
18. In the present case, the decretal sum as stated in the proclamation in CMCC No. E149 of 2022 was Kshs. 459,180.00 while in CMCC No. E152 of 2022 was Kshs. 410,947.00. The items proclaimed in both instances are 4 motor vehicle collectively valued by the auctioneers at Kshs. 3,100,000.00 for CMCC No. E149 of 2022 and Kshs. 2,900,000.00 for CMCC No. E152 of 2022. The subject motor vehicle was not even among the assets proclaimed, yet it was attached and sold. There is no indication of a valuation undertaken or a reserve price made prior to the sale to protect the judgment debtor’s interests.
19. In practical terms, the Respondent could attach all the proclaimed assets, add unproclaimed assets and sell them at a throw away price as long as the sum of Kshs 1,087,391.00 was realised, that being the decretal sum in the two suits plus the unassessed costs of the attachment. Equity cannot countenance such an unjust outcome.
20. In Nairobi Civil Suit No. 422 of 2015, Cyprian Nyakundi vs Larry Madowo , the Court citing the decision in Shimmers Plaza Limited vs National Bank of Kenya Limited [2015] eKLR stated that contempt is committed when:
“ The notice of the order is satisfied if the person or his agent can be said to either have been present when the judgment or order was given or made; or was notified of its terms by telephone, email or otherwise. In our view, 'otherwise' would mean any other action that can be proved to have facilitated the person having come into knowledge of the terms of the judgment and/or order. This would definitely include a situation where a person is represented in court by counsel. Once the applicant has proved notice, the respondent bears an evidential burden in relation to willfulness and mala fides disobedience. This Court in the Wambora case (supra) affirmed the application of these requirements” .
21. In the same decision, the court confirms the definition of contempt and re-states the definition set out in the Black’s Law Dictionary (9 th Edition) . It states:
" Conduct that defies the authority or dignity of a court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment ."
22. Contempt thus revolves around knowledge of the existence of the court order. The Respondent was well aware of the court order of 12 th April 2024 and had no reason to proceed with the sale of the Appellants assets on the 13 th April 2024. The Respondent cannot visit their own iniquities of proclaiming and seizing the same assets for different decrees and then hide behind the assertion that they sold the asset in regard to a different suit.
23. I am thus persuaded that the Respondent acted in contempt of the court orders of 12 th April 2024.
24. Second issue is what action the court should direct against the Respondent? I note that this is an appeal from the decision of the trial court. Having so found that the Respondent was in contempt, and the contempt having been in regard to the orders of the trial court, I deem it appropriate to remit the matter back to the trial court to proceed and undertake the first steps in ensuring that the contempt is both purged and sanctioned accordingly.
25. In that regard, I will proceed to issue the following orders in regard to the appeal herein:
a. The court finds merit in the appeal and sets aside the ruling of the trial court dated 26 th August 2024 and substitutes therefore with a finding that the Respondent was in contempt of the court orders of the 12 th of April 2024.
b. The Respondent to facilitate the immediate return and restoration of the motor vehicle registration number KCK 688U to the Appellant forthwith and in any case within 7 (seven) days of today’s order.
c. The file to be mentioned before the Chief Magistrate or court currently seized of the matter in the Magistrates Court within 14 days with a view to confirm compliance with order (b) above and proceed with appropriate sanctions against the Respondent.
d. The costs of the appeal are awarded to the Appellant .
Dated, signed and delivered virtually via Microsoft Teams this 20 th August 2026.
HCCA NO. E152 OF 2022 ADC VS ESHIKONI AUCTIONEERS & 2 OTHERS RULING Pg. 10
RULING.
1. This matter has a chequered history. For context, I will set out a brief on the background.
2. There are two related suits, arising from the same cause of action and the cases filed were Kitale CMCC No. E149 of 2022 and Kitale CMCC No. E152 of 2022. The present appeal arises from CMCC No. E152 of 2022. Judgments were entered in both files and owing to the delay and/or failure to make good the decretal sums in the two suits, the decree holders did seek to attach the judgment debtor’s goods in execution of the decrees herein.
3. To stop the attachment, the judgment debtors filed an application dated 12 th April, 2024. In the application, the Defendant therein, now the Appellant herein sought that the two files be consolidated and further that the motor vehicle registration number KCK 688U be released back to the Applicant and there be further stay of execution in the matter herein. The Applicant also made a proposal on liquidating the decretal sum and was willing to make a payment of Kshs. 200,000.00 as part payment of the decretal sum and a similar sum to be paid monthly until the matter was concluded.
4. The application was filed under a Certificate of Urgency and the court gave orders the same day, allowing the stay of execution. The order was issued at 4.38 pm. The order was served upon the Respondent herein, Eshikoni Auctioneers at 8.19pm. the matter was then scheduled for mention on the 22 nd April, 2024 before court 2.
5. On that date, the court, upon hearing counsel for the respective parties made the order allowing the release of the motor vehicle registration number KCK 688U on a running attachment pending a further mention on the 13 th May 2024 to confirm the payment proposal. The judgment debtor confirmed having made a payment of Kshs. 200,000.00 on that date.
6. An application dated 29 th April 2024, was then filed by the Appellant herein. It sought for the committal to civil jail of the Respondent, Eshikoni Auctioneers for deliberately disobeying the court orders of 23 rd April 2024and further sought for the assistance of the OCS Kitale Police Station to facilitate compliance with the court orders of 23 rd April 2024. The Respondent had deliberately failed to release the subject motor vehicle as directed by the court and the orders duly served on them. Most interestingly, the Respondent, by their own admission proceeded to sell the subject motor vehicle on the 13 th April, 2024, on the pretext that the orders issued were in CMCC No. E152 of 2022 and not in CMCC No. E149 .
7. The matter of contempt by the Respondent was the subject of the ruling dated 26 th August 2024. It is this ruling that has triggered the present appeal. In the Memorandum of Appeal dated 27 th of August 2024, the Appellant submitted:
“ 1. The Learned Trial Magistrate acted in total disregard of the law when he proceeded to deliver ruling on applications dated 12th April,2024 and application dated 19th April, 2024 in total disregard of law applicable in the circumstances.
2 The Learned Trial Magistrate erred in law and fact when in his ruling he disregarded and/or failed to consider and/or refer to the prayers on the applications, supporting affidavit and further affidavit by the appellant.
3 The Learned Trial Magistrate erred in law and fact when he held that the stay orders in which the auctioneers were in contempt, related to KTL CMCC NO.152 OF 2022 and not KTL CMCC NO.149 of 2022.
4 The Learned Magistrate erred in law and fact for holding that the release orders of 23rd April, 2024 in respect of M/V KCK 688U were in relation to KTL CMCC NO. 152 OF 2022 only and not in KTL CMCC NO.149 OF 2022.
5 The Learned Magistrate erred in law and fact for holding that the release orders of 23rd April, 2024 in respect of M/V KCK 688U were issued when the said vehicle had been sold in KTL CMCC NO.149 OF 2022.
6 The Learned Magistrate erred in law and fact for holding that the Respondent did not disobey the order issued on 23/4/2024 hence not liable to be committed to civil jail.
7 The learned Trial Magistrate erred in law and in fact for failing to appreciate the fact that the total decretal sum in the KTL CMCC 152 OF 2022 and KTL CMCC 149 OF 2022 was Kshs 819,000/= and in which the appellant had paid Kshs 619,000/= and payment which prompted issuance of release orders of M/V Reg. No. KCK 688U on a running attachment.
8 The learned Trial Magistrate erred in fact and in law when he relied on a defective replying affidavit by the respondent's agent Kennedy Shikuku on contempt application which was not commissioned.
9 The learned Trial Magistrate erred in fact and law when he failed to consider that there was no evidence to proof proceeds of sale.
10. The Learned Trial Magistrate erred in law and fact when he failed to appreciate that the counsel for the 1st and 2nd Interested parties herein acknowledged payment of Kshs. 619,000.00 out of Kshs. 819,000.00 from the appellant during the proceedings.
11 The Learned Magistrate erred in law and fact for failing to find that there was no evidence from the counsel for the 1st and 2nd Respondent to proof receipt of the proceed of sale .
8. The Appellant thus sought that the ruling of the trial court be set aside and the Respondent be found to have disobeyed the lawful courts and the they be committed to civil jail and the motor vehicle KCK 688U be released back to the Appellant. The orders granted by the lower court on 26 th August 2024, were as below and the court proceeded to dismiss the application dated 29 th April, 2024.:
“ a) That the orders issued on 12th April 2024 relates to Kitale CMCC No. 152 of 2022 and not Kitale CMCC No. 149 of 2022.
b) That files numbers Kitale CMCC No. 152 of 2022 and Kitale СМСС No. 149 of 2022 were not consolidated as prayed for by the Applicant in the application dated 12th April 2024. In fact, prayer (2) of the said application on consolidation was not granted. Rather prayer (4) of the same application was granted.
c) That upon perusal of Kitale CMCC No. 149 of 2022, I find that there is no application for stay of execution hence no stay orders to stop the sale of the seized movable properties.
d) That the warrants of attachment and sale of movable properties in execution of decree for money were issued on 14th March 2024 in Civil Suit Number 152 of 2022 (Ruling) 145 -20 3 170 10 20- e) f) both files namely Kitale CMCC No. 149 of 2022 and Kitale CMCC No. 152 of 2022.
e) both files namely Kitale CMCC No. 149 of 2022 and Kitale CMCC No. 152 of 2022. That auction of motor vehicle registration number KCK 688U Isuzu S/C pick-up took place on 13th April 2024 and a certificate of sale issued with respect to Kitale CMCC No. 149 of 2022 where there were no orders of stay.
f) That the orders issued on 23rd April 2024 for the release of motor vehicle registration number KCK 688U Isuzu made in case file number 152 of 2022 were issued when the said vehicle had been sold in Kitale CMCC No. 149 of 2022 hence there was no vehicle to be released to the Applicant at that juncture since the order had been overtaken by events” .
9. The core aspect of this appeal is whether the Respondent was in contempt of the orders issued on the 12 th and 22 rd April 2024. The core issues are thus:
a. Was the Respondent in contempt of the orders of the court issued on the 12 th and 22 nd April 2024?
b. If so, what orders should the court issue in the circumstances ?
10. On the first issues, the same goes back to the happenings of 12 th April, 2024. The court, as already stated issued stay orders against the Respondent and from the Affidavit of Service of one Jackson Nyongesa Simiyu, deponed on the 13 th April 2024, he avers that he served Mr. Marende, of the Respondent by WhatsApp on the 12 th April 2024 at 8.19pm . He also served the Interested Parties Advocate on 13 th April 2024 at 10.20 am . Both Mr. Marende and Mr. Gachathi were persons known to him prior to the service.
11. In the Replying Affidavit of the Respondent sworn on the 3 rd June 2024, the Respondent avers at paragraph 4 that they received instructions to attach in the two files and they proceeded to proclaim the Appellants moveable property and later to attach the same after the Appellant failed to make good the decretal sum. The sale of the Appellants property was scheduled for 13 th April 2024. It is noteworthy that first, the application to consolidate the two files was not granted by the court. The applications for stay thus proceeded independently.
12. Secondly, the Respondent did proclaim motor vehicle registration number KCK 688U in both CMCC No, E149 of 2022 and CMCC No. E152 of 2022. The orders for stay was thus made in CMCC No. E152 of 2022. At paragraph 10 of the Replying Affidavit, the Respondent correctly avers that they were served with the order dated 12 th April, 2024 in regard to CMCC No. E152 of 2022 but no order in CMCC No. E149 of 2022. For that reason, they proceeded with the sale of the subject motor vehicle registration number KCK 688U as there were no stay orders in CMCC No. E149 of 2022! They were thus not in contempt of the orders of both 12 th and 22 nd April 2024.
13. All the counsel in this matter filed their submissions in this matter. The core consideration for the court at this point is to determine whether the Respondent, despite service on the 12 th April 2024 and being award and served with the orders of 22 nd April 2024, could still proceed and sell the subject motor vehicle on the 13 th April 2024. A Certificate of Sale is attached to the Record of Appeal and it is dated 13 th April 2024. The reasoning of the Respondent is indeed absurd. It is clear therefore, that the Counsel for the Interested Parties who had already received part payment of the decretal sum were not candid with the court on the 22 nd April 2024 when they acquiesced to the motor vehicle being released to the Appellant on a running attachment, as the same had been sold of the 13 th April 2024.
14. The court on 12 th April 2024 issued clear orders staying the execution of the decree in CMCC No. E152 of 2022 and specifically the sale of the assets seized by the Respondent pending the determination of the application. The stay was to remain in force till 22 nd April 2024. That the Respondent had proclaimed the same motor vehicle in the two files was in the first instance in bad faith. Assuming the Respondent had not been restrained in any of the matters and proceeded to sell the assets in execution of the two decrees, how would the proceeds have been divided among the two decree holders? How would the Respondent make returns as required after the sale, as demanded by the Auctioneers Act, of the Respondent where the same asset is sold in regard to two decrees?
15. To thus hide behind the assertion that there was no order by court in regard to the subject motor vehicle in CMCC No. E149 OF 2022 and to form the basis of the sale was thus “being too clever”. As already noted, the Respondent had proclaimed several of the Appellants assets covering the two files. The prudent move would have required the Respondent to attach a separate asset in view of the express orders in the present file and especially because the application dated 12 th April 2024 had referred to the subject motor vehicle in the application for stay orders. It thus follows that the orders issued on the 12 th April 2024, directing for a stay of execution were directly in regard to the subject motor vehicle which had been seized by the Respondent and precipitated the application of 12 th April 2024. Filing a Certificate of Sale for the attachment in CMCC No. E149 of 2022 for an asset also proclaimed in CMCC No. E152 of 2022 and seeking to escape liability is thus unfounded. It is therefore untruthful to aver on oath as was done at paragraph 11 of the Respondents Replying Affidavit dated 3 rd June 2024 that there were no orders barring the sale of the subject motor vehicle at the time of the sale, the sale being under different case number, notwithstanding.
16. The Respondent and Interested Parties have submitted at length that the sale was proper as there were no orders in CMCC No. E149 of 2022. While the same is true, the actions of the Respondent were contemptuous as the Respondent was aware that the orders affected all the assets proclaimed by the Respondent in CMCC No. E152 of 2022 and that included the subject motor vehicle herein. To the court, the actions of the Respondent were reckless and unprofessional. The Respondent should have come back to court to seek the courts approval to proceed with the sale, in view of the twin attachment.
17. I deem it appropriate to state that courts will frown upon such conduct of the Auctioneer to proclaim assets that are well beyond the decretal sum and thus literally paralyse the work of a judgment debtor. Being in debt is not a basis for an auctioneer to shut down the work of a judgment debtor as the auctioneer then puts themselves in a place where they could literally cart away all the assets of the judgment debtor.
18. In the present case, the decretal sum as stated in the proclamation in CMCC No. E149 of 2022 was Kshs. 459,180.00 while in CMCC No. E152 of 2022 was Kshs. 410,947.00. The items proclaimed in both instances are 4 motor vehicle collectively valued by the auctioneers at Kshs. 3,100,000.00 for CMCC No. E149 of 2022 and Kshs. 2,900,000.00 for CMCC No. E152 of 2022. The subject motor vehicle was not even among the assets proclaimed, yet it was attached and sold. There is no indication of a valuation undertaken or a reserve price made prior to the sale to protect the judgment debtor’s interests.
19. In practical terms, the Respondent could attach all the proclaimed assets, add unproclaimed assets and sell them at a throw away price as long as the sum of Kshs 1,087,391.00 was realised, that being the decretal sum in the two suits plus the unassessed costs of the attachment. Equity cannot countenance such an unjust outcome.
20. In Nairobi Civil Suit No. 422 of 2015, Cyprian Nyakundi vs Larry Madowo , the Court citing the decision in Shimmers Plaza Limited vs National Bank of Kenya Limited [2015] eKLR stated that contempt is committed when:
“ The notice of the order is satisfied if the person or his agent can be said to either have been present when the judgment or order was given or made; or was notified of its terms by telephone, email or otherwise. In our view, 'otherwise' would mean any other action that can be proved to have facilitated the person having come into knowledge of the terms of the judgment and/or order. This would definitely include a situation where a person is represented in court by counsel. Once the applicant has proved notice, the respondent bears an evidential burden in relation to willfulness and mala fides disobedience. This Court in the Wambora case (supra) affirmed the application of these requirements” .
21. In the same decision, the court confirms the definition of contempt and re-states the definition set out in the Black’s Law Dictionary (9 th Edition) . It states:
" Conduct that defies the authority or dignity of a court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment ."
22. Contempt thus revolves around knowledge of the existence of the court order. The Respondent was well aware of the court order of 12 th April 2024 and had no reason to proceed with the sale of the Appellants assets on the 13 th April 2024. The Respondent cannot visit their own iniquities of proclaiming and seizing the same assets for different decrees and then hide behind the assertion that they sold the asset in regard to a different suit.
23. I am thus persuaded that the Respondent acted in contempt of the court orders of 12 th April 2024.
24. Second issue is what action the court should direct against the Respondent? I note that this is an appeal from the decision of the trial court. Having so found that the Respondent was in contempt, and the contempt having been in regard to the orders of the trial court, I deem it appropriate to remit the matter back to the trial court to proceed and undertake the first steps in ensuring that the contempt is both purged and sanctioned accordingly.
25. In that regard, I will proceed to issue the following orders in regard to the appeal herein:
a. The court finds merit in the appeal and sets aside the ruling of the trial court dated 26 th August 2024 and substitutes therefore with a finding that the Respondent was in contempt of the court orders of the 12 th of April 2024.
b. The Respondent to facilitate the immediate return and restoration of the motor vehicle registration number KCK 688U to the Appellant forthwith and in any case within 7 (seven) days of today’s order.
c. The file to be mentioned before the Chief Magistrate or court currently seized of the matter in the Magistrates Court within 14 days with a view to confirm compliance with order (b) above and proceed with appropriate sanctions against the Respondent.
d. The costs of the appeal are awarded to the Appellant .
Dated, signed and delivered virtually via Microsoft Teams this 20 th August 2026.
HCCA NO. E152 OF 2022 ADC VS ESHIKONI AUCTIONEERS & 2 OTHERS RULING Pg. 10