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ELRCPartially AllowedCause No 1527 of 2015· [2019] KEELRC 744 (KLR)

Paul Mungai Mbugua v Registred Trustees of Presbyteria University of East Africa [2019] KEELRC 744 (KLR)

Employment and Labour Relations Court
19 September 2019
HWHellen Wasilwa
2,050 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court found a decree holder and auctioneers in contempt for selling a vehicle despite knowing stay orders were in place.

What this practically means

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Executive summary

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The Respondent (Judgment Debtor) applied by motion dated 3rd May 2019 seeking to cite the Claimant (Decree Holder), his counsel Mr. James Thuku, and General Rift Valley Auctioneers for contempt of orders issued on 4th, 18th, 25th and 30th April 2019. The dispute arose from execution: goods including motor vehicle KBN 442X, which was not on the proclamation list, were attached; the court granted stay on 4th April 2019 and on 18th April 2019 directed release of the vehicle upon payment of auctioneers' fees. The vehicle was nonetheless sold on 18th April 2019. The Claimant opposed the application through a preliminary objection and replying affidavits, arguing the application was defective, premised on non-existent orders of 25th April 2019, and that his advocate's independence protected him from liability; the auctioneers contended the sale was lawful, property having passed at the fall of the hammer, and that they were never served with the orders. Examining the record, the court found the Decree Holder knew of the stay orders - his counsel had written to the auctioneers on 5th April 2019 confirming them - yet the vehicle was sold on 18th April 2019 while he was in breach of the instalment-payment orders. The court found the Decree Holder and the Auctioneers in contempt and cited them accordingly. It did not cite or punish the Claimant's counsel. The judgment was delivered on 19th September 2019 by Lady Justice Hellen Wasilwa. No costs order was recorded.

Key legal issues

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01

Knowledge of court orders as foundation of contempt

Holding

Contempt is established where the decree holder had knowledge of the stay orders and yet proceeded with the sale of the attached vehicle

Reasoning

The court found that stay orders issued on 4th April 2019 and instalment-payment directions were communicated to the Decree Holder, whose counsel even wrote to the auctioneers on 5th April 2019 confirming the stay. By 18th April 2019, when the vehicle was sold, the decree holder was in breach. Knowledge of the orders, not formal service alone, grounded the contempt finding.

p. 3
02

Attachment of goods not proclaimed

Holding

The attachment of motor vehicle KBN 442X, which was not among the proclaimed goods, was irregular, as confirmed by the unsigned later proclamation

Reasoning

The court noted the later proclamation dated 21st March 2019 was not signed by the debtor, unlike the earlier one, and that the vehicle was not listed among the proclaimed goods. This supported the Respondent's claim that the vehicle was unlawfully attached and that the release orders were properly sought.

p. 3
03

Timing of the release order vis-à-vis the sale

Holding

The vehicle was sold on the same day the court ordered its return, so the sale could not validate the decree holder's breach of the subsisting stay orders

Reasoning

The auctioneers argued that property passed at the fall of the hammer before the release order issued, and that they no longer had possession. The court noted the release order was made on 18th April 2019, the same day as the sale, and that the decree holder was already in breach of the stay orders when the sale occurred, making the contempt finding intact.

p. 3

Legal principles established

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  • A party with knowledge of stay orders who proceeds with sale of attached property is in contempt of court notwithstanding that a release order was issued

Court orders

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  1. 1.The Decree Holder and the Auctioneers found in contempt of the Court's orders and cited for contempt accordingly

Authorities

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Legislation

  • Constitution of KenyaArticle 159(1)
  • Employment and Labour Relations Court (Procedure) RulesOrder 28(1)
  • Auctioneers Rulesrule 12(4)

Cases cited (6)

  • Justus Kariuki Mate & Another vs. Martin Nyaga Wambora & Another
    [2014] eKLR
  • Gladys Vuldi & Another vs. Daniel Kipketer Rugut
    [2019]
  • Mwaniki Silas Ngari vs. Prof John S. Akama & Another
    [2015] eKLR
  • Amos K. C. Kale & Another vs. Rebecca Gesora & Another
    [2017]
  • Alphonse Lindi Riage vs. Commissioner for Cooperatives Development
    [2016] eKLR
  • Wobum Estate Limited vs. Margaret Bashforth
    [2016] eKLR
Jurisdiction invoked
Contempt of court powers of the Employment and Labour Relations Court over disobedience of its own orders; application brought under the ELRC (Procedure) Rules

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, "Paul Mungai Mbugua v Registred Trustees of Presbyteria University of East Africa [2019] KEELRC 744 (KLR)", Case Analysis (2019). Cause No 1527 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/744/eng@2019-09-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.