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ELCPartially AllowedELCA No. E150 of 2025· [2026] KEELC 5358 (KLR)

Nderitu t/a Jogan Dries Auctioneers & another v Hirsi & 2 others (Environment and Land Appeal E150 of 2025) [2026] KEELC 5358 (KLR)

Environment and Land Court
31 August 2026
7,312 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This is a first appeal from a ruling of Hon. M. A. Otindo, Principal Magistrate, in MCELCMISC No. E163 of 2025, a miscellaneous cause begun by an auctioneer's application for police assistance to levy distress for rent of Kshs. 810,000 against a tenant on L.R. No. 36/1/1033, Eastleigh. On 11th July 2025 the auctioneer removed scrap metal and two motor vehicles (KAR 100H and KBJ 855J) never proclaimed, and Osman Ali Mohamed, claiming to occupy the adjoining L.R. No. 36/1/1034, sought joinder, return of goods and contempt findings. The trial court enjoined him, ordered return of goods, and cited the auctioneer, the landlady and the OCS for contempt. Wabwoto, J. allowed the appeal in substantial part. The court held that a trial court retains inherent jurisdiction to hear a stranger whose goods were seized under colour of its own order, but only restoratively - it may not try title or grant substantive relief on affidavits. The finding that unproclaimed goods were attached stood; the finding that the levy was made at the wrong premises fell as it disregarded the tenant's own evidence; the mandatory injunction was set aside for misapplication of the Kenya Breweries v Okeyo test and unexecutability; the contempt findings fell for the wrong standard of proof, absence of any obligation breached or deliberate defiance, and committal findings against an unheard OCS. A restorative order requires return of the unproclaimed goods to those from whose possession they were taken, without any determination of ownership. Each party bears its own costs of the appeal and the application below.

Key legal issues

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01

Jurisdiction to hear a stranger in a miscellaneous cause

Holding

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

Reasoning

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.

p. 19
02

Spent order and functus officio

Holding

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

Reasoning

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.

p. 22
03

Attachment of unproclaimed goods

Holding

The finding that the auctioneer attached and advertised goods never proclaimed was open to the trial court and is not disturbed

Reasoning

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.

p. 24
04

Finding that the levy was at the wrong premises

Holding

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

Reasoning

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.

p. 26
05

Mandatory injunction

Holding

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)

Reasoning

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.

p. 27
06

Findings of contempt

Holding

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

Reasoning

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.

p. 32
07

Effect of the Court of Appeal judgment of 12th June 2026

Holding

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

Reasoning

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.

p. 34

Legal principles established

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  • 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

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  1. 1.The appeal dated 8th August 2025 is allowed in part
  2. 2.Order (a) of the Ruling joining the 2nd respondent as an interested party in MCELCMISC No. E163 of 2025 is upheld
  3. 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. 4.Pending compliance, the 1st appellant restrained from selling by public auction, disposing of, transferring, alienating or otherwise dealing with the said goods
  5. 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. 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. 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. 8.Order (f) of the Ruling set aside; each party to bear its own costs of the application dated 11th July 2025
  9. 9.Each party to bear its own costs of the appeal

Authorities

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Legislation

  • Distress for Rent Actsections 3 and 4
  • Auctioneers RulesRule 12, Rule 12(1)(b), Rule 12(2)(b), Sale Form 2 of the Schedule (Legal Notice No. 120 of 1997)
  • Civil Procedure Rules, 2010Order 3 Rules 1 and 2
  • Civil Procedure Actsection 3A
  • Evidence Actsection 107
  • Constitution of KenyaArticles 48 and 50(1)

Cases cited (12)

  • Kenya Breweries Ltd v Washington Okeyo
    [2002] EA 109
  • Samuel M. N. Mweru & Others v National Land Commission & 2 others
    [2020] eKLR
  • Rockland Kenya Ltd v Commissioner General of Kenya Revenue Authority & Another
    [2020] eKLR
  • Witmore Investment Ltd v County Government of Kirinyaga & 3 Others
    [2016] eKLR
  • Telkom Kenya Limited v John Ochanda
    [2014] KECA 600 (KLR)
  • Mombasa Bricks & Tiles Ltd & 5 Others v Arvind Shah & 7 Others
    [2018] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] KECA 606 (KLR)
  • Mbogo & Another v Shah
    [1968] EA 93
  • Mohammed Mahmoud Jabane v Highstone Butty Tongoi Olenja
    [1986] KLR 661
  • Mutitika v Baharini Farm Limited
    [1985] KLR 229
  • Idow Trading Co. Ltd v Osman Ali Mohamed (ELC Case No. 63 of 2008, L. Mbugua, J.)
    judgment of 28th September 2023
  • Civil Appeal No. E936 of 2023 (Musinga, Mumbi Ngugi and Odunga, JJ.A.)
    judgment of 12th June 2026
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.