Samuel Gathii Mareri v Josephat Gicheru Kamau & Chador Auctioneers (Interested Party)
The bottom line
#A Kenyan landowner lost his bid to stop auction of his car and to jail an auctioneer, because he delayed, offered no security, and couldn't prove the auctioneer was properly served.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss under Order 42 Rule 6(2)
Not established; attachment of a vehicle in execution of a costs decree does not itself show substantial loss
The Applicant claimed the attached vehicle was his tool of trade as a Clinical Officer, but the court held that in a money decree for costs, substantial loss requires proof that the Respondent would be unable to refund the proceeds if the appeal succeeds, which was not demonstrated.
Unreasonable delay
Delay of nearly four months, during which the Applicant concealed the appeal while prosecuting review, fails the timeliness test
Judgment was delivered on 22/10/2025; the stay application was only filed on 12/02/2026 after the review was dismissed. The Applicant neither served the Memorandum of Appeal nor moved the court promptly, failing the requirement that the application be made without unreasonable delay.
Security for due performance
Not satisfied; a mere offer to deposit costs is not a concrete performance guarantee
Order 42 Rule 6(2)(b) requires concrete security guaranteeing due performance of the decree. The Applicant's indication of willingness to deposit costs did not amount to the security the court orders for due performance of a decree that may ultimately bind him.
Abuse of process / forum shopping
Concealing an unserved appeal while prosecuting review, then unleashing the appeal after losing review, is forum shopping and abuse of process
Under Section 80 of the Civil Procedure Act and Order 45 Rule 1, a party who exhausts review cannot re-litigate the same decision via appeal. The Applicant's dual track of review and a concealed unserved appeal amounted to seeking a second bite at the cherry and rendered the stay application unmerited.
Contempt - personal service and standard of proof
Contempt application fails: no proof of personal service, order not attached, and penal standard of proof not met
Civil contempt touches personal liberty and demands stringent requirements: personal service of a penal-endorsed order (unless dispensed with), proof beyond reasonable doubt of willful disobedience, and a clear unambiguous order. None of these foundational elements was established against the auctioneer.
Clarity of the order of 16/02/2026
The order was not vague; it incorporated prayers 3 and 4 of the motion by reference
The court held that an order need not restate every word of a motion; by granting a stay 'in respect of prayer 3 and 4' it incorporated those prayers. A party who finds wording ambiguous must seek variation or clarification, not proceed with execution.
Legal principles established
#- Stay pending appeal requires cumulative proof of substantial loss, absence of unreasonable delay, and security for due performance under Order 42 Rule 6(2).
- In execution of a money decree, substantial loss requires showing the decree-holder cannot refund if the appeal succeeds.
- A party who exhausts review cannot re-litigate the same decision via appeal; doing so is abuse of process.
- Personal service of a court order with penal notice is a mandatory prerequisite for civil contempt, unless dispensed with by court order.
- Standard of proof in civil contempt approaches the criminal standard of proof beyond reasonable doubt.
- An order enforced by incorporation of specific prayers of a motion is not vague merely because it does not restate every word.
Court orders
#- 1.The application for stay of execution pending appeal is dismissed.
- 2.Prayer 2 seeking the enjoinder of CHADOR AUCTIONEERS as an Interested Party is granted for the limited purpose of these execution proceedings.
- 3.The interim stay orders issued on 16/02/2026 are vacated and discharged.
- 4.The application seeking to cite and commit the Respondent/Interested Party E.C. WAMBU Trading as CHADOR AUCTIONEERS for contempt of Court is dismissed in its entirety.
- 5.Applicant shall bear the costs of both applications to the Respondent and to the Interested Party.
- 6.Mention on 12/10/2026 for disposal of the Appeal.
- On appeal from
- Chief Magistrate's Court (ELC) Thika
- Thika CM ELC No. E015 of 2021
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 75 & 77 Civil Procedure Act; Order 42 Rule 6 Civil Procedure Rules; Section 6(c) Contempt of Court Act No. 46 of 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Gathii Mareri v Josephat Gicheru Kamau & Chador Auctioneers (Interested Party)", Case Analysis (2026). ELCLA E137 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5574/eng@2026-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.