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1. On 21/2/2025 the trial court in Makindu SCCOMM/E005/2025 delivered its judgment - against the applicants herein for the sum of Kshs. 880,000 plus costs of Kshs. 50,000.
2. By Notice of Motion dated 27/3/2025 the applicants sought orders of stay of execution pending the hearing of the application inter-partes – seeking leave to file the appeal out of time.
3. This court gave direction - allowing stay of execution of the judgment of the Makindu SCCOMM/E005/2025 pending the hearing and determination of the application for leave to file appeal out of time.
4. Directions were issued on 3/4/2025.
5. The grounds for the application were that the applicant were unable to appear in court on the date fixed for hearing as they were out in remote area and could not be located by their advocate in the very short time the matter was fixed for hearing. That the matter was fixed for mention on 11/2/2025, and judgment was delivered on 21/2/2025.
That their effort to arrest the judgment or get a review were in vain, hence their current application.
6. The application was opposed vide the replying affidavit of Patrick Mbithi Kituu and Mumbi Mutungi - the response sworn on 8/4/2025 on the grounds that the application was only intended to deny them the fruits of their judgment , that the applicant had not demonstrated that they were in a remote area drilling as alleged; that the applicants filed memorandum of appearance and a response to the claim but failed to attend court, that they failed to attend all the mentions, that the application to arrest the judgment was non-existent on CTS, the application for review of judgment was filed too late, that SCC matters are time bound, that this was filed on 13/1/2025 and ought to have been determined by 13/3/2025 and the judgment was delivered on 21/2/2025 - three weeks to the last day, that should the court allow the application - the applicants be ordered to deposit in court the sum of Kshs. 941,870 being the decretal sum and Kshs. 147,808 being auctioneers fees.
7. The applicants filed another application dated 14/5/2025 seeking orders to access and inspect the motor vehicle KAT 912T that was in the possession of auctioneers the orders were issued on 20/5/2025.
8. The applicants filed yet another application dated 2/6/2025 seeking inter alia – that RUOL Auctioneers be held in contempt of the orders of the court of 3/4/2025, and that Dapal Motors & Logistics be enjoined as interested parties.
9. This time the complaint was that following the orders of 3/4/2025 the Respondents had frustrated their efforts to access the motor vehicle KAH 912T in collusion with the “Intended Interested Party” Dapal Motors & Logistics.
10. The respondents opposed the applications dated 14/5/2025 the replying affidavit of Patrick Kituu Mbithi on his behalf and that of his Co-respondent sworn on 21/5/2025. He explained that the auctioneers had long advertised the motor vehicle before the orders of 3/4/2025 and there was no contempt.
11. I found on CTS a notice of preliminary dated 8/7/2025 obviously filed after the directions were given in this case.
12. I have carefully considered the three applications.
13. The application related to joining an interested party is clearly untenable as there is no suit before me in which such an application can be made.
14. The application seeking to hold RUOL Auctioneers in contempt of the orders of this court is also untenable as the circumstances surrounding that event of re advertising the m/vehicle have been explained to the satisfaction of this court.
15. The remaining application is the one seeking leave to file an appeal out of time. Section 1B of the CPA speaks to the duty of the court in civil matters.
For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—
(a)the just determination of the proceedings;
(b)the efficient disposal of the business of the Court;
(c)the efficient use of the available judicial and administrative resources;
(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and
(e)the use of suitable technology.
16. The reason for this appeal is because the applicant did not get to testify in their case in the subordinate court.
17. S.1B of the CPA speaks to the efficient use of judicial time and disposal of court matters.
18. In my view, it is in the interests of justice and expedient for the applicants to go back to the subordinate court, for the court to hear them and for the court to deliver its judgment so that if any appeal is to arise it would be on the judgment of the court.
19. The respondents can be compensated by way of costs.
20. In the circumstances, the Judgment of the subordinate court is set aside, the matter is remitted to the subordinate court, to re open the matter and to hear the defence within the 13 day window that was available to the court before the deadline. The matter be mentioned before the trial Court on Wednesday 19th November 2025 for directions for hearing.
21. The Respondents will have thrown away costs of Ksh 30,000 to be paid before the hearing date.
22. Orders accordingly
Dated, signed and delivered via CTS on 14th November 2025
Mumbua T. Matheka
Judge
CA Chrispol
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1. On 21/2/2025 the trial court in Makindu SCCOMM/E005/2025 delivered its judgment - against the applicants herein for the sum of Kshs. 880,000 plus costs of Kshs. 50,000.
2. By Notice of Motion dated 27/3/2025 the applicants sought orders of stay of execution pending the hearing of the application inter-partes – seeking leave to file the appeal out of time.
3. This court gave direction - allowing stay of execution of the judgment of the Makindu SCCOMM/E005/2025 pending the hearing and determination of the application for leave to file appeal out of time.
4. Directions were issued on 3/4/2025.
5. The grounds for the application were that the applicant were unable to appear in court on the date fixed for hearing as they were out in remote area and could not be located by their advocate in the very short time the matter was fixed for hearing. That the matter was fixed for mention on 11/2/2025, and judgment was delivered on 21/2/2025.
That their effort to arrest the judgment or get a review were in vain, hence their current application.
6. The application was opposed vide the replying affidavit of Patrick Mbithi Kituu and Mumbi Mutungi - the response sworn on 8/4/2025 on the grounds that the application was only intended to deny them the fruits of their judgment , that the applicant had not demonstrated that they were in a remote area drilling as alleged; that the applicants filed memorandum of appearance and a response to the claim but failed to attend court, that they failed to attend all the mentions, that the application to arrest the judgment was non-existent on CTS, the application for review of judgment was filed too late, that SCC matters are time bound, that this was filed on 13/1/2025 and ought to have been determined by 13/3/2025 and the judgment was delivered on 21/2/2025 - three weeks to the last day, that should the court allow the application - the applicants be ordered to deposit in court the sum of Kshs. 941,870 being the decretal sum and Kshs. 147,808 being auctioneers fees.
7. The applicants filed another application dated 14/5/2025 seeking orders to access and inspect the motor vehicle KAT 912T that was in the possession of auctioneers the orders were issued on 20/5/2025.
8. The applicants filed yet another application dated 2/6/2025 seeking inter alia – that RUOL Auctioneers be held in contempt of the orders of the court of 3/4/2025, and that Dapal Motors & Logistics be enjoined as interested parties.
9. This time the complaint was that following the orders of 3/4/2025 the Respondents had frustrated their efforts to access the motor vehicle KAH 912T in collusion with the “Intended Interested Party” Dapal Motors & Logistics.
10. The respondents opposed the applications dated 14/5/2025 the replying affidavit of Patrick Kituu Mbithi on his behalf and that of his Co-respondent sworn on 21/5/2025. He explained that the auctioneers had long advertised the motor vehicle before the orders of 3/4/2025 and there was no contempt.
11. I found on CTS a notice of preliminary dated 8/7/2025 obviously filed after the directions were given in this case.
12. I have carefully considered the three applications.
13. The application related to joining an interested party is clearly untenable as there is no suit before me in which such an application can be made.
14. The application seeking to hold RUOL Auctioneers in contempt of the orders of this court is also untenable as the circumstances surrounding that event of re advertising the m/vehicle have been explained to the satisfaction of this court.
15. The remaining application is the one seeking leave to file an appeal out of time. Section 1B of the CPA speaks to the duty of the court in civil matters.
For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—
(a)the just determination of the proceedings;
(b)the efficient disposal of the business of the Court;
(c)the efficient use of the available judicial and administrative resources;
(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and
(e)the use of suitable technology.
16. The reason for this appeal is because the applicant did not get to testify in their case in the subordinate court.
17. S.1B of the CPA speaks to the efficient use of judicial time and disposal of court matters.
18. In my view, it is in the interests of justice and expedient for the applicants to go back to the subordinate court, for the court to hear them and for the court to deliver its judgment so that if any appeal is to arise it would be on the judgment of the court.
19. The respondents can be compensated by way of costs.
20. In the circumstances, the Judgment of the subordinate court is set aside, the matter is remitted to the subordinate court, to re open the matter and to hear the defence within the 13 day window that was available to the court before the deadline. The matter be mentioned before the trial Court on Wednesday 19th November 2025 for directions for hearing.
21. The Respondents will have thrown away costs of Ksh 30,000 to be paid before the hearing date.
22. Orders accordingly
Dated, signed and delivered via CTS on 14th November 2025
Mumbua T. Matheka
Judge
CA Chrispol
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