Nderitu t/a Jogan Dries Auctioneers & another v Hirsi & 2 others (Environment and Land Appeal E150 of 2025) [2026] KEELC 5358 (KLR)
The bottom line
#Kenya's Environment and Land Court partially allowed an appeal: attached unproclaimed goods must be returned, but all contempt findings against the auctioneer, landlady and police were set aside.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to hear a stranger in a miscellaneous cause
The court had inherent jurisdiction (section 3A Civil Procedure Act) to hear Mr. Osman on whether its own order was exceeded and to undo the excess, but not to determine title or grant substantive relief
Order 3 Rules 1 and 2 prescribe suit-institution modes; final substantive relief cannot ordinarily be granted in a miscellaneous application. But a court issuing process retains inherent jurisdiction to supervise execution and prevent injustice, anchored in section 3A and Article 48. The jurisdiction is narrow: restorative only, not adjudicative of competing ownership claims on affidavit.
Spent order and functus officio
The order of 16th June 2025 was not spent; a levy which proceeded to attachment and advertisement but not to sale is still on foot and the court retains jurisdiction over it
The record showed goods removed and notifications of sale issued on 11th July 2025, no public auction ever held, goods in the auctioneer's custody and interim restraining orders issued 17th July 2025. Further, the trial court never in fact stayed, set aside or vacated the order, so the complaint was largely academic.
Attachment of unproclaimed goods
The finding that the auctioneer attached and advertised goods never proclaimed was open to the trial court and is not disturbed
Rule 12(1)(b) requires proclamation indicating value and condition of specific items; a catch-all endorsement does not suffice. Rule 12(2) required fresh court leave to attach unproclaimed goods, and none was sought. The order of 16th June 2025 authorised removal of the proclaimed movable assets only. Comparison of the proclamation with the notifications of sale supported the finding.
Finding that the levy was at the wrong premises
Set aside; the finding was reached on affidavit alone without cross-examination and in disregard of the 1st respondent's own motion and affidavit of 15th July 2025
Corroboration by the applicant's employees and customer is no substitute for testing of evidence. The tenant, best placed to know from where his goods were taken, had sworn that the vehicles were attached pursuant to the order of 16th June 2025 and that KBJ 855J belonged to his client; that evidence was neither referred to nor weighed, justifying appellate interference under Mbogo v Shah and Jabane v Olenja.
Mandatory injunction
Set aside; the test was correctly identified but misapplied, and the order was in part unexecutable (KAH 100H misdescription; KBJ 855J ordered to a non-owner; ownership determined in incapable proceedings)
Kenya Breweries v Okeyo requires a clear case for interlocutory mandatory injunctions. On the court's own recitation this was not a clear case as to whose goods they were or from where they came. A specific chattel misdescribed is incapable of execution, and the order determined ownership on affidavit alone.
Findings of contempt
Set aside in entirety, for four cumulative reasons: wrong standard of proof; no obligation on the 2nd appellant under an enabling order; deliberateness neither addressed nor found; and contempt found against an unheard OCS
The trial court recited the higher standard but applied the ordinary civil footing. The order was enabling only, imposing no obligation on the landlady. The deliberate-defiance element was unaddressed. The OCS was not a party, not served, unrepresented and unafridavid; a committal finding against an unheard person violates Article 50(1) and natural justice.
Effect of the Court of Appeal judgment of 12th June 2026
The judgment establishes the 2nd respondent has no proprietary or occupational interest in L.R. No. 36/1/1034, rendering order (e) otiose, but does not determine ownership of the chattels
A judgment of the Court of Appeal is a public judicial record of which the court may take cognisance. It removes the foundation of the status quo, but title to goods does not follow title to land; the 2nd respondent may still claim the goods. No declaration would be made since no such relief was sought on appeal.
Legal principles established
#- A court which issues process retains inherent jurisdiction to hear a stranger complaining that his goods were seized under colour of that order, but only to restore the position before the excess; it may not try title to land or goods or award substantive relief on conflicting affidavits
- A catch-all endorsement extending a proclamation to 'any other movable property that belongs to the tenant' does not satisfy the specificity required by Rule 12 of the Auctioneers Rules; unproclaimed goods require fresh leave of the court
- An enabling order imposing no obligation does not ground contempt for breach; exceeding an enabling order is not, without clear deliberate disobedience of a term, contempt
- A finding of contempt cannot be made against a person who has not been heard; the court must issue a notice to show cause and determine contempt after hearing those cited
- The standard of proof in contempt is higher than in ordinary civil proceedings, approaching but not identical with the criminal standard
- Title to goods does not follow title to the land on which they stand; an occupier, even wrongful, may own goods upon it
Court orders
#- 1.The appeal dated 8th August 2025 is allowed in part
- 2.Order (a) of the Ruling joining the 2nd respondent as an interested party in MCELCMISC No. E163 of 2025 is upheld
- 3.Orders (b) and (c) of the Ruling set aside; in substitution, the 1st appellant shall, within 21 days and at his own cost, release and restore all goods attached and removed on or about 11th July 2025 which were not listed in the proclamation notice dated 9th May 2025 (including assorted scrap metal and motor vehicles KAR 100H and KBJ 855J) to the persons from whose possession they were taken
- 4.Pending compliance, the 1st appellant restrained from selling by public auction, disposing of, transferring, alienating or otherwise dealing with the said goods
- 5.No determination made as to ownership of the goods; orders made solely in restoration of the position before the order of 16th June 2025 was exceeded
- 6.Order (d) citing the 1st appellant, 2nd appellant and the OCS for contempt and issuing notices to show cause is set aside in its entirety
- 7.Order (e) of the Ruling set aside; trial court's refusal of the prayer for reinstatement into occupation of L.R. No. 36/1/1034 not disturbed
- 8.Order (f) of the Ruling set aside; each party to bear its own costs of the application dated 11th July 2025
- 9.Each party to bear its own costs of the appeal
- On appeal from
- Milimani Commercial Magistrate's Court, Environment and Land Court Division
- MCELCMISC No. E163 of 2025
- Jurisdiction invoked
- First appellate jurisdiction under the Civil Procedure Act (section 3A) over an appeal from the magistrates' court; Article 48 and Article 50(1) of the Constitution considered in respect of hearing and contempt process
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nderitu t/a Jogan Dries Auctioneers & another v Hirsi & 2 others (Environment and Land Appeal E150 of 2025) [2026] KEELC 5358 (KLR)", Case Analysis (2026). ELCA No. E150 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5358/eng@2026-08-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.