1. Introduction
The Appellant’s Notice of Motion dated 9th March 2026 seeks the following orders:
1. Spent.
2. THAT, pending the hearing and determination of this Application, this Honourable Court be pleased to order the immediate release of Motor Vehicle Registration Number KCR 620X and Trailer Registration Number ZD 1979 to the Applicant, the attachment having been carried out in violation of the subsisting stay orders of this Honourable Court, and direct the Respondent and the Auctioneers to forthwith lift the attachment and restore possession thereof, failing which the Officer Commanding the nearest Police Station do ensure compliance.
3. THAT, pending the hearing and determination of this Application, this Honourable Court be pleased to declare that the attachment and seizure of Motor Vehicle Registration Number KCR 620X and Trailer Registration Number ZD 1979 on 9th March 2026 was unlawful, irregular, null and void, the same having been undertaken in direct contravention of the stay orders issued by this Honourable Court on 17th December 2025.
4. THAT, pending the hearing and determination of this Application and determination of the Appeal herein, this Honourable Court be pleased to restrain the Respondent, his servants, agents, auctioneers, or any person acting under his instructions from attaching, proclaiming, advertising for sale, selling, transferring, disposing of, or in any manner whatsoever interfering with the Applicant’s motor vehicles or assets.
5. THAT, this Honourable Court be pleased to hold the Respondent, his advocates, and/or the instructed Auctioneers personally liable for any loss, damage, depreciation, storage charges, or consequential loss suffered by the Applicant arising from the unlawful attachment.
6. THAT, the costs of this Application be borne by the Respondent.
2. Background
The Application is supported by the grounds on its face and the Supporting Affidavit sworn by Nuhu Ngoma Gyaza on even date. The deponent avers that this Court delivered a ruling on 17th December 2025, granting an order of stay of execution of the decree dated 18th July 2025, together with the warrants of attachment issued on 27th October 2025 in Mombasa CMCC No. 2139 of 2014, pending the hearing and determination of this Appeal.
The stay order was conditional upon the Appellant depositing a bank guarantee for the balance of the decretal sum within fourteen (14) days of the ruling. The Appellant states that compliance was effected through a bank guarantee issued by DTB Bank dated 16th January 2026.
The Appellant further contends that notwithstanding the subsisting stay orders, the Respondent proceeded to attach Motor Vehicle Registration Number KCR 620X and Trailer Registration Number ZD 1979, assets allegedly used in the ordinary course of business, thereby occasioning severe disruption and financial loss.
The Appellant also states that the Respondent had previously sold Motor Vehicle Registration Number KCD 533B and Trailer Registration Number ZE 2791 pursuant to the decree dated 18th July 2025, which decree forms the subject of this Appeal, and fears that the attached assets may similarly be sold at an undervalue.
3. Response
In a Replying Affidavit sworn on 16th March 2026, the Respondent contends that the bank guarantee was filed and served outside the strict timeline of fourteen (14) days imposed by this Court, asserting that service was only effected on 29th January 2026. On that basis, the Respondent urges the Court to dismiss the Application as vexatious, mischievous, insincere, and scandalous.
4. Issues for Determination
Having considered the pleadings, affidavits, and rival submissions, the following issues arise for determination:
a. Whether the Appellant complied with the conditional stay order issued on 17th December 2025;
b. Whether the Respondent acted in contempt of the Court orders issued on 17th December 2025; and
c. Whether the Application is merited.
5. Analysis and Determination
a. Whether the Appellant complied with the conditional stay order
It is noteworthy that the ruling delivered on 17th December 2025 directed that a bank guarantee be deposited in Court. From the Court file and the CTS system, no formal filing of the guarantee appears on record.the court firle was missing at some point . Further the CTS shows that the ruling was setting out the timelines was published on 5th January 2026, thereby lending credence to the Appellant’s contention that it became aware of the ruling on that date.
There is a bank guarantee marked “NNG-2” is dated 16th January 2026.
Counsel for the Appellant submitted that the period between 21st December and 13th January, being the Christmas recess, ought to be excluded from computation of time and that, upon such computation, the fourteen-day period lapsed on 24th January 2026.
Order 50 Rule 4 of the Civil Procedure Rules, provides thus :
“Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act:
Provided that this rule shall not apply to any application in respect of a temporary injunction.”
Upon computation of time, the Court finds that compliance lapsed on 24th January 2026. Although the Respondent contends that service was effected on 29th January 2026, documentary material on record indicates service on 27th January 2026, thereby resulting in a delay of approximately three (3) days.
In the Court’s considered view, the delay is minimal and incapable of occasioning prejudice to the Respondent. Had the Appellant sought enlargement of time, this Court would not have hesitated to exercise its discretion in favour of extension . BUT as stated above, the CTS shows that the ruling giving the timelines was published on 5th January 2026, thereby lending credence to the Appellant’s contention that it became aware of the ruling on that date.
The critical question is whether procedural strictness regarding service within the prescribed period ought to supersede substantive compliance, where the bank guarantee itself had already been procured within time and security thereby furnished to preserve the substratum of the Appeal.
The answer is in the negative.
Under Article 159(2)(d) of the Constitution, courts are enjoined to administer justice without undue regard to procedural technicalities. The Respondent has failed to demonstrate any prejudice occasioned by the short delay in service.
Further, this Court observes with concern the multiplicity of interlocutory applications filed by the parties. Litigation must, at some point, move beyond procedural contests and counter-applications to the substantive determination of the dispute. The parties ought not to meander through endless interlocutory skirmishes at the expense of the expeditious disposal of the Appeal. Judicial time is best spent resolving the substantive issues in controversy.
The procedural shortcomings raised herein, namely delayed service and/or failure to formally place the guarantee on record, are curable defects that ought not defeat substantive justice. The maxim de minimis non curat lex aptlyherein. The record herein is crowded with trifles.
Accordingly, this Court finds that the Appellant substantially complied with the ruling of 17th December 2025.
b. Whether the Respondent acted in contempt of Court
Having found that the Appellant substantially complied with the conditional stay order, it follows that the stay of execution remained valid and operative.
The attachment of Motor Vehicle Registration Number KCR 620X and Trailer Registration Number ZD 1979 notwithstanding subsisting stay orders amounted to conduct undertaken in violation of this Court’s authority and orders.
This Court therefore finds that the attachment was unlawful, irregular, and undertaken in direct contravention of the orders issued on 17th December 2025.
c. Whether the Application is merited
The Court finds merit in the Application.
However, given the subsisting stay orders already in force, the prayer for restraining orders is superfluous and unnecessary.
With respect to the prayer seeking damages and personal liability against the Respondent, advocates, and/or auctioneers, the Appellant has not tendered documentary evidence demonstrating actual loss, damage, depreciation, storage charges, or consequential loss suffered during the period of attachment. Consequently, this Court is unable to grant the same at this stage. Should any loss or damage be established following release of the assets, the Appellant shall be at liberty to pursue the appropriate legal remedies. Further, there was the issue that the timelines were not strictly adhered to.
In order to forestall further interlocutory contests and ensure the expeditious disposal of this matter, the Court directs that the Appeal proceed to substantive hearing without further delay.
6. Disposition
Accordingly, the Court makes the following orders:
i. THAT this Honourable Court hereby orders the immediate release of Motor Vehicle Registration Number KCR 620X and Trailer Registration Number ZD 1979 to the Applicant, the attachment having been carried out in violation of the subsisting stay orders of this Honourable Court, and directs the Respondent and the Auctioneers to forthwith lift the attachment and restore possession thereof, failing which the Officer Commanding the nearest Police Station shall ensure compliance.
ii. THAT this Honourable Court hereby declares that the attachment and seizure of Motor Vehicle Registration Number KCR 620X and Trailer Registration Number ZD 1979 on 9th March 2026 was unlawful, irregular, null and void, having been undertaken in contravention of the stay orders issued by this Court on 17th December 2025.
iii. THAT the Appeal herein shall be expedited and the parties are directed to focus on the substantive determination of the Appeal rather than continued interlocutory contests.
iiv. THAT this matter shall be mentioned before the Deputy Registrar on 16th June 2026 for purposes of case management and issuance of directions towards the expeditious hearing of the Appeal.
V. THAT THE DEPUTY REGISTRAR TO LIST THE MAIN APPEAL BEFORE ANOTHER JUDGE THE PARTIES HAD EXPRESSED MISGIVINGS ABOUT THIS COURT
v1. THAT costs of this Application shall be borne by the Respondent.
It is so ordered.
DATED, SIGNED, AND DELIVERED AT MOMBASA IN OPEN COURT/ONLINE THROUGH MS TEAMS THIS 26TH DAY OF MAY 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
MS MBUGUA FOR THE APPLICANT
MR ASIGE FOR THE RESPONDENT
Bebora – Court Assistant
The Appellant’s Notice of Motion dated 9th March 2026 seeks the following orders:
1. Spent.
2. THAT, pending the hearing and determination of this Application, this Honourable Court be pleased to order the immediate release of Motor Vehicle Registration Number KCR 620X and Trailer Registration Number ZD 1979 to the Applicant, the attachment having been carried out in violation of the subsisting stay orders of this Honourable Court, and direct the Respondent and the Auctioneers to forthwith lift the attachment and restore possession thereof, failing which the Officer Commanding the nearest Police Station do ensure compliance.
3. THAT, pending the hearing and determination of this Application, this Honourable Court be pleased to declare that the attachment and seizure of Motor Vehicle Registration Number KCR 620X and Trailer Registration Number ZD 1979 on 9th March 2026 was unlawful, irregular, null and void, the same having been undertaken in direct contravention of the stay orders issued by this Honourable Court on 17th December 2025.
4. THAT, pending the hearing and determination of this Application and determination of the Appeal herein, this Honourable Court be pleased to restrain the Respondent, his servants, agents, auctioneers, or any person acting under his instructions from attaching, proclaiming, advertising for sale, selling, transferring, disposing of, or in any manner whatsoever interfering with the Applicant’s motor vehicles or assets.
5. THAT, this Honourable Court be pleased to hold the Respondent, his advocates, and/or the instructed Auctioneers personally liable for any loss, damage, depreciation, storage charges, or consequential loss suffered by the Applicant arising from the unlawful attachment.
6. THAT, the costs of this Application be borne by the Respondent.
2. Background
The Application is supported by the grounds on its face and the Supporting Affidavit sworn by Nuhu Ngoma Gyaza on even date. The deponent avers that this Court delivered a ruling on 17th December 2025, granting an order of stay of execution of the decree dated 18th July 2025, together with the warrants of attachment issued on 27th October 2025 in Mombasa CMCC No. 2139 of 2014, pending the hearing and determination of this Appeal.
The stay order was conditional upon the Appellant depositing a bank guarantee for the balance of the decretal sum within fourteen (14) days of the ruling. The Appellant states that compliance was effected through a bank guarantee issued by DTB Bank dated 16th January 2026.
The Appellant further contends that notwithstanding the subsisting stay orders, the Respondent proceeded to attach Motor Vehicle Registration Number KCR 620X and Trailer Registration Number ZD 1979, assets allegedly used in the ordinary course of business, thereby occasioning severe disruption and financial loss.
The Appellant also states that the Respondent had previously sold Motor Vehicle Registration Number KCD 533B and Trailer Registration Number ZE 2791 pursuant to the decree dated 18th July 2025, which decree forms the subject of this Appeal, and fears that the attached assets may similarly be sold at an undervalue.
3. Response
In a Replying Affidavit sworn on 16th March 2026, the Respondent contends that the bank guarantee was filed and served outside the strict timeline of fourteen (14) days imposed by this Court, asserting that service was only effected on 29th January 2026. On that basis, the Respondent urges the Court to dismiss the Application as vexatious, mischievous, insincere, and scandalous.
4. Issues for Determination
Having considered the pleadings, affidavits, and rival submissions, the following issues arise for determination:
a. Whether the Appellant complied with the conditional stay order issued on 17th December 2025;
b. Whether the Respondent acted in contempt of the Court orders issued on 17th December 2025; and
c. Whether the Application is merited.
5. Analysis and Determination
a. Whether the Appellant complied with the conditional stay order
It is noteworthy that the ruling delivered on 17th December 2025 directed that a bank guarantee be deposited in Court. From the Court file and the CTS system, no formal filing of the guarantee appears on record.the court firle was missing at some point . Further the CTS shows that the ruling was setting out the timelines was published on 5th January 2026, thereby lending credence to the Appellant’s contention that it became aware of the ruling on that date.
There is a bank guarantee marked “NNG-2” is dated 16th January 2026.
Counsel for the Appellant submitted that the period between 21st December and 13th January, being the Christmas recess, ought to be excluded from computation of time and that, upon such computation, the fourteen-day period lapsed on 24th January 2026.
Order 50 Rule 4 of the Civil Procedure Rules, provides thus :
“Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act:
Provided that this rule shall not apply to any application in respect of a temporary injunction.”
Upon computation of time, the Court finds that compliance lapsed on 24th January 2026. Although the Respondent contends that service was effected on 29th January 2026, documentary material on record indicates service on 27th January 2026, thereby resulting in a delay of approximately three (3) days.
In the Court’s considered view, the delay is minimal and incapable of occasioning prejudice to the Respondent. Had the Appellant sought enlargement of time, this Court would not have hesitated to exercise its discretion in favour of extension . BUT as stated above, the CTS shows that the ruling giving the timelines was published on 5th January 2026, thereby lending credence to the Appellant’s contention that it became aware of the ruling on that date.
The critical question is whether procedural strictness regarding service within the prescribed period ought to supersede substantive compliance, where the bank guarantee itself had already been procured within time and security thereby furnished to preserve the substratum of the Appeal.
The answer is in the negative.
Under Article 159(2)(d) of the Constitution, courts are enjoined to administer justice without undue regard to procedural technicalities. The Respondent has failed to demonstrate any prejudice occasioned by the short delay in service.
Further, this Court observes with concern the multiplicity of interlocutory applications filed by the parties. Litigation must, at some point, move beyond procedural contests and counter-applications to the substantive determination of the dispute. The parties ought not to meander through endless interlocutory skirmishes at the expense of the expeditious disposal of the Appeal. Judicial time is best spent resolving the substantive issues in controversy.
The procedural shortcomings raised herein, namely delayed service and/or failure to formally place the guarantee on record, are curable defects that ought not defeat substantive justice. The maxim de minimis non curat lex aptlyherein. The record herein is crowded with trifles.
Accordingly, this Court finds that the Appellant substantially complied with the ruling of 17th December 2025.
b. Whether the Respondent acted in contempt of Court
Having found that the Appellant substantially complied with the conditional stay order, it follows that the stay of execution remained valid and operative.
The attachment of Motor Vehicle Registration Number KCR 620X and Trailer Registration Number ZD 1979 notwithstanding subsisting stay orders amounted to conduct undertaken in violation of this Court’s authority and orders.
This Court therefore finds that the attachment was unlawful, irregular, and undertaken in direct contravention of the orders issued on 17th December 2025.
c. Whether the Application is merited
The Court finds merit in the Application.
However, given the subsisting stay orders already in force, the prayer for restraining orders is superfluous and unnecessary.
With respect to the prayer seeking damages and personal liability against the Respondent, advocates, and/or auctioneers, the Appellant has not tendered documentary evidence demonstrating actual loss, damage, depreciation, storage charges, or consequential loss suffered during the period of attachment. Consequently, this Court is unable to grant the same at this stage. Should any loss or damage be established following release of the assets, the Appellant shall be at liberty to pursue the appropriate legal remedies. Further, there was the issue that the timelines were not strictly adhered to.
In order to forestall further interlocutory contests and ensure the expeditious disposal of this matter, the Court directs that the Appeal proceed to substantive hearing without further delay.
6. Disposition
Accordingly, the Court makes the following orders:
i. THAT this Honourable Court hereby orders the immediate release of Motor Vehicle Registration Number KCR 620X and Trailer Registration Number ZD 1979 to the Applicant, the attachment having been carried out in violation of the subsisting stay orders of this Honourable Court, and directs the Respondent and the Auctioneers to forthwith lift the attachment and restore possession thereof, failing which the Officer Commanding the nearest Police Station shall ensure compliance.
ii. THAT this Honourable Court hereby declares that the attachment and seizure of Motor Vehicle Registration Number KCR 620X and Trailer Registration Number ZD 1979 on 9th March 2026 was unlawful, irregular, null and void, having been undertaken in contravention of the stay orders issued by this Court on 17th December 2025.
iii. THAT the Appeal herein shall be expedited and the parties are directed to focus on the substantive determination of the Appeal rather than continued interlocutory contests.
iiv. THAT this matter shall be mentioned before the Deputy Registrar on 16th June 2026 for purposes of case management and issuance of directions towards the expeditious hearing of the Appeal.
V. THAT THE DEPUTY REGISTRAR TO LIST THE MAIN APPEAL BEFORE ANOTHER JUDGE THE PARTIES HAD EXPRESSED MISGIVINGS ABOUT THIS COURT
v1. THAT costs of this Application shall be borne by the Respondent.
It is so ordered.
DATED, SIGNED, AND DELIVERED AT MOMBASA IN OPEN COURT/ONLINE THROUGH MS TEAMS THIS 26TH DAY OF MAY 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
MS MBUGUA FOR THE APPLICANT
MR ASIGE FOR THE RESPONDENT
Bebora – Court Assistant