' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
MISC. CIVIL APPLICATION NO.E170 OF 2024
TAHMEED EXPRESS LIMITED…………….............................APPLICANT
VERSUS
JOHN SERAH………………..…..………CLAIMANT/1 ST RESPONDENT (DECREE HOLDER)
MARGARET MULE T/A BETABASE AUTIONEERS….2 ND RESPONDENT
JOEL MWANZIA T/A BETANASE AUTIONEERS…….3 RD RESPONDENT
JOHN NTOITI & CO. ADVOCATES……...……………. 4 TH RESPONDENT
GERALD MUTAHI THUTA T/A STARTRUCK INVESTMENTS/STARTRUCK AUCTIONEERS/COURT BAILLIFS, REPOSSESSORS AND PRIVATE INVESTIGATORS……………………………….….……..5 TH RESPONDENT
RULING
This is a Ruling on three Preliminary Objections filed by the Respondents to the Applicant’s Notion of Motion application dated 2 nd September, 2024 seeking to cite the Respondents for contempt of court for allegedly disobeying court orders issued on 29 th August, 2024. The related Preliminary Objections dated 16 th September,2024 by the 4 th Respondent, 16 th September, 2024 by the 2 nd and 5 th Respondents and 19 th September, 2024 by the 1 st Respondent/decree holder can be summarized as follows;-
This court lacks jurisdiction to entertain the Applicant’s entire matter;
The Applicant has improperly introduced new parties in the application;
That the orders alleged to have been disobeyed were not issued against any of the newly introduced parties;
The matter is sub judice pursuant to Section 6 of the Civil Procedure Act since there is a similar application pending hearing and determination at Limuru Chief Magistrate Civil Case Number E431 of 2022; and
The only court with jurisdiction in the matter is the one that issued the warrants of attachment and sale.
The parties were directed to canvass the Preliminary Objections by way of written submissions. Respective counsel submitted as follows;-
THE 1 ST RESPONDENT’S/DECREE HOLDER’S SUBMISSIONS
The 1 st Respondent/Decree Holder submitted that the matter was erroneously filed before this Court and it was filed contrary to appropriate procedure prescribed in statute. This Court can only sit as an appellate court on the ex parte judgment issued by the Limuru Magistrates Court. The only court that can entertain this matter is the court that issued the impugned decree according to Order 22 Rule 51 (1) of the Civil Procedure Rules, 2010. This court neither issued the impugned decree nor the warrants of attachments and sale.
This Court cannot conclusively determine the dispute at this stage with limited information. The primary file where the decree and the warrants of attachment and sale is before the Limuru Magistrate Court. The Court could only properly determine the matter if sitting on appeal because there would be a record of appeal hence adequate material to adjudicate the matter. The only court with jurisdiction at this stage is the one that issued the warrants of attachment and sale. The matter is sub judice and in breach of Section 6 of the Civil Procedure Act. The Respondent relied on Jackline Nyokabi Karara v Jeremiah Kariuki Kagema; Dominic Munene Njogu (Interested Party)[2022]eKLR , Africa Management Communications Limited v Airtel Networks Kenya Limited [2021]eKLR and Uhuru Highway Development Limited v Central Bank of Kenya & 2 Others [1996]eKLR .
2 ND AND 5 TH RESPONDENTS’ SUBMISSIONS
The general rule for raising an objection on wrongful attachment of good under warrant of proclamation is to file an application to the same court that issued the warrant of attachment. This is the court where the primary suit was heard and determined. That court is fully appraised of the circumstances under which the warrants were issued and it can therefore assess the merits of any objection raised concerning the attached goods. This Court would only have jurisdiction if approached on appeal. The Respondents relied on Speaker of the National Assembly vs James Njenga Karume C.A Civil Appeal No.1992 (NBI) .
The 2 nd and 5 th Respondents are not parties to the application dated 29 th August, 2024 which resulted in the orders alleged to have been disobeyed. The Respondents were neither parties to the primary suit at the lower court. Therefore they cannot be included in the instant application for contempt of court dated 2 nd September, 2024.
APPLICANT’S SUBMISSIONS
The Applicant submitted that it filed the application dated 2 nd September, 2024 seeking to cite the Respondents for contempt because the Applicant properly served the Respondents with the stay of execution order dated 29 th August, 2024 but the Respondents disobeyed the court order and proceeded to seize the Applicant’s bus and stored it at Four Ways Junction, Kiambu Road.
On contempt of court, the Applicant relied on Wachuri farmers Co-op. Society Ltd. Njuriga farmers Co-op Society Ltd vs Mburu Mungai t/a Mungai & associates the registrar of Co-op Societies [2003]eKLR . The Applicant urged this court to dismiss the Preliminary Objections since they do not meet the required threshold. The Applicant relied on Mukhisa Biscuit v West End Distributors Ltd [1969] EA 696 and Oraro v Mbaja [2005]eKLR 141 .
ISSUE FOR DETERMINATION
The only issue framed by this Court for determination is whether the Preliminary Objections meet the required threshold set out in the locus classicus case of Mukhisa Biscuit v West End Distributors Ltd [1969] EA 696
ANALYSIS
Points raised in a Preliminary Objections must be pure points of law and should not require to be proved by way of adduction of evidence. The court in Mukhisa Biscuit v West End Distributors Ltd [1969] EA 696 succinctly set out the threshold for preliminary objection as follows;
“A preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleading and which if argued as Preliminary Objection may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
The Applicant brought objection proceedings through a Notice of Objection dated 29 th August, 2024 pursuant to Order 22 Rule 51(1) of the Civil Procedure Rules, 2010 which provides as follows;-
“Any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to all the parties and to the decree-holder of his objection to the attachment of such property.”
The Applicant also filed a Notice of Motion on even date seeking for the following orders;-
Spent
The execution of judgment in CMCC E412 of 2022 Limuru Law Courts through the proclaimed property in warrants of attachment and proclamation dated the 16 th August 2024 by BETA AUTIONEERS be stayed pending the hearing of this application inter partes .
The Decree Holder through his agents including BETA AUTIONEERS or any other Auctioneers be precluded from proclaiming or having proclaimed from attaching or selling the Objector’s goods in answer of the Decree of this Honourable Court.
Costs of this application.
The above application resulted in the subject order dated 29 th August, 2024 which provided inter alia that the warrants of attachment and proclamation over the objector’s property be stayed pending inter partes hearing. The Applicant alleged that the Respondents disobeyed the said order which precipitated the filing of the instant contempt proceedings via the application dated 2 nd September, 2024. All the Respondents opposed the said application dated 2 nd September, 2024 through the Preliminary Objections summarized above.
Key to the points raised in the Preliminary Objections is whether this Court has the jurisdiction to hear and determine this matter. This is in light of the fact that the primary suit was heard and determined in the lower court. There is no appeal filed in this court. What is the premise of this miscellaneous civil case? What anchors the Notice of Motion application dated 29 th August, 2024?
In the celebrated case of Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR it was held;-
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
This Court notes that the instant matter emanates from the execution proceedings of the Judgment and Decree arising from CMCC No. E412 of 2022, Limuru Law Courts, John Kamau Serah vs Tahmeed Coach Limited . Contrary to the Applicant’s averments, the instant objection proceedings and the resultant contempt proceedings are not properly filed before this Court in accordance with Order 22 Rule 51 of the Civil Procedure Code, 2010. This Court did not deliver any judgment on this matter. There is therefore no decree and warrants of attachment and proclamation emanating from this Court subject of any objection proceedings. This Court is bereft of jurisdiction to consider and determine any issues in the matter and hence downs its tools.
The three preliminary objections are upheld as they meet the threshold in the Mukhisa Biscuit case (Supra). The consolidated matters, Misc. Civil Case No.170 of 2024 and Misc. Civil Case No. E.229 of 2024, are not properly before this Court and be and are hereby struck out with costs to the 1 st and 2 nd Respondents Only.
Orders Accordingly
DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 27 TH DAY OF AUGUST, 2025
A.MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
Lumasi -for 1 st and 2 nd Respondent
Lumasi h/b for Muriithi –for 1 st and 3 rd Respondent
Lumasi h/b Kinyua –for 4 th Respondent
Nyabero –for Applicant
'
IN THE HIGH COURT OF KENYA AT KIAMBU
MISC. CIVIL APPLICATION NO.E170 OF 2024
TAHMEED EXPRESS LIMITED…………….............................APPLICANT
VERSUS
JOHN SERAH………………..…..………CLAIMANT/1 ST RESPONDENT (DECREE HOLDER)
MARGARET MULE T/A BETABASE AUTIONEERS….2 ND RESPONDENT
JOEL MWANZIA T/A BETANASE AUTIONEERS…….3 RD RESPONDENT
JOHN NTOITI & CO. ADVOCATES……...……………. 4 TH RESPONDENT
GERALD MUTAHI THUTA T/A STARTRUCK INVESTMENTS/STARTRUCK AUCTIONEERS/COURT BAILLIFS, REPOSSESSORS AND PRIVATE INVESTIGATORS……………………………….….……..5 TH RESPONDENT
RULING
This is a Ruling on three Preliminary Objections filed by the Respondents to the Applicant’s Notion of Motion application dated 2 nd September, 2024 seeking to cite the Respondents for contempt of court for allegedly disobeying court orders issued on 29 th August, 2024. The related Preliminary Objections dated 16 th September,2024 by the 4 th Respondent, 16 th September, 2024 by the 2 nd and 5 th Respondents and 19 th September, 2024 by the 1 st Respondent/decree holder can be summarized as follows;-
This court lacks jurisdiction to entertain the Applicant’s entire matter;
The Applicant has improperly introduced new parties in the application;
That the orders alleged to have been disobeyed were not issued against any of the newly introduced parties;
The matter is sub judice pursuant to Section 6 of the Civil Procedure Act since there is a similar application pending hearing and determination at Limuru Chief Magistrate Civil Case Number E431 of 2022; and
The only court with jurisdiction in the matter is the one that issued the warrants of attachment and sale.
The parties were directed to canvass the Preliminary Objections by way of written submissions. Respective counsel submitted as follows;-
THE 1 ST RESPONDENT’S/DECREE HOLDER’S SUBMISSIONS
The 1 st Respondent/Decree Holder submitted that the matter was erroneously filed before this Court and it was filed contrary to appropriate procedure prescribed in statute. This Court can only sit as an appellate court on the ex parte judgment issued by the Limuru Magistrates Court. The only court that can entertain this matter is the court that issued the impugned decree according to Order 22 Rule 51 (1) of the Civil Procedure Rules, 2010. This court neither issued the impugned decree nor the warrants of attachments and sale.
This Court cannot conclusively determine the dispute at this stage with limited information. The primary file where the decree and the warrants of attachment and sale is before the Limuru Magistrate Court. The Court could only properly determine the matter if sitting on appeal because there would be a record of appeal hence adequate material to adjudicate the matter. The only court with jurisdiction at this stage is the one that issued the warrants of attachment and sale. The matter is sub judice and in breach of Section 6 of the Civil Procedure Act. The Respondent relied on Jackline Nyokabi Karara v Jeremiah Kariuki Kagema; Dominic Munene Njogu (Interested Party)[2022]eKLR , Africa Management Communications Limited v Airtel Networks Kenya Limited [2021]eKLR and Uhuru Highway Development Limited v Central Bank of Kenya & 2 Others [1996]eKLR .
2 ND AND 5 TH RESPONDENTS’ SUBMISSIONS
The general rule for raising an objection on wrongful attachment of good under warrant of proclamation is to file an application to the same court that issued the warrant of attachment. This is the court where the primary suit was heard and determined. That court is fully appraised of the circumstances under which the warrants were issued and it can therefore assess the merits of any objection raised concerning the attached goods. This Court would only have jurisdiction if approached on appeal. The Respondents relied on Speaker of the National Assembly vs James Njenga Karume C.A Civil Appeal No.1992 (NBI) .
The 2 nd and 5 th Respondents are not parties to the application dated 29 th August, 2024 which resulted in the orders alleged to have been disobeyed. The Respondents were neither parties to the primary suit at the lower court. Therefore they cannot be included in the instant application for contempt of court dated 2 nd September, 2024.
APPLICANT’S SUBMISSIONS
The Applicant submitted that it filed the application dated 2 nd September, 2024 seeking to cite the Respondents for contempt because the Applicant properly served the Respondents with the stay of execution order dated 29 th August, 2024 but the Respondents disobeyed the court order and proceeded to seize the Applicant’s bus and stored it at Four Ways Junction, Kiambu Road.
On contempt of court, the Applicant relied on Wachuri farmers Co-op. Society Ltd. Njuriga farmers Co-op Society Ltd vs Mburu Mungai t/a Mungai & associates the registrar of Co-op Societies [2003]eKLR . The Applicant urged this court to dismiss the Preliminary Objections since they do not meet the required threshold. The Applicant relied on Mukhisa Biscuit v West End Distributors Ltd [1969] EA 696 and Oraro v Mbaja [2005]eKLR 141 .
ISSUE FOR DETERMINATION
The only issue framed by this Court for determination is whether the Preliminary Objections meet the required threshold set out in the locus classicus case of Mukhisa Biscuit v West End Distributors Ltd [1969] EA 696
ANALYSIS
Points raised in a Preliminary Objections must be pure points of law and should not require to be proved by way of adduction of evidence. The court in Mukhisa Biscuit v West End Distributors Ltd [1969] EA 696 succinctly set out the threshold for preliminary objection as follows;
“A preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleading and which if argued as Preliminary Objection may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
The Applicant brought objection proceedings through a Notice of Objection dated 29 th August, 2024 pursuant to Order 22 Rule 51(1) of the Civil Procedure Rules, 2010 which provides as follows;-
“Any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to all the parties and to the decree-holder of his objection to the attachment of such property.”
The Applicant also filed a Notice of Motion on even date seeking for the following orders;-
Spent
The execution of judgment in CMCC E412 of 2022 Limuru Law Courts through the proclaimed property in warrants of attachment and proclamation dated the 16 th August 2024 by BETA AUTIONEERS be stayed pending the hearing of this application inter partes .
The Decree Holder through his agents including BETA AUTIONEERS or any other Auctioneers be precluded from proclaiming or having proclaimed from attaching or selling the Objector’s goods in answer of the Decree of this Honourable Court.
Costs of this application.
The above application resulted in the subject order dated 29 th August, 2024 which provided inter alia that the warrants of attachment and proclamation over the objector’s property be stayed pending inter partes hearing. The Applicant alleged that the Respondents disobeyed the said order which precipitated the filing of the instant contempt proceedings via the application dated 2 nd September, 2024. All the Respondents opposed the said application dated 2 nd September, 2024 through the Preliminary Objections summarized above.
Key to the points raised in the Preliminary Objections is whether this Court has the jurisdiction to hear and determine this matter. This is in light of the fact that the primary suit was heard and determined in the lower court. There is no appeal filed in this court. What is the premise of this miscellaneous civil case? What anchors the Notice of Motion application dated 29 th August, 2024?
In the celebrated case of Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR it was held;-
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
This Court notes that the instant matter emanates from the execution proceedings of the Judgment and Decree arising from CMCC No. E412 of 2022, Limuru Law Courts, John Kamau Serah vs Tahmeed Coach Limited . Contrary to the Applicant’s averments, the instant objection proceedings and the resultant contempt proceedings are not properly filed before this Court in accordance with Order 22 Rule 51 of the Civil Procedure Code, 2010. This Court did not deliver any judgment on this matter. There is therefore no decree and warrants of attachment and proclamation emanating from this Court subject of any objection proceedings. This Court is bereft of jurisdiction to consider and determine any issues in the matter and hence downs its tools.
The three preliminary objections are upheld as they meet the threshold in the Mukhisa Biscuit case (Supra). The consolidated matters, Misc. Civil Case No.170 of 2024 and Misc. Civil Case No. E.229 of 2024, are not properly before this Court and be and are hereby struck out with costs to the 1 st and 2 nd Respondents Only.
Orders Accordingly
DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 27 TH DAY OF AUGUST, 2025
A.MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
Lumasi -for 1 st and 2 nd Respondent
Lumasi h/b for Muriithi –for 1 st and 3 rd Respondent
Lumasi h/b Kinyua –for 4 th Respondent
Nyabero –for Applicant
'