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MagistratePartially AllowedNot stated in the judgment (application dated 27th March 2026)· [2026] KEMC 176 (KLR)

Musyoki t/a Alfajiri Auctioneers v Simiyu & 69 others (Miscellaneous Case E495 of 2025) [2026] KEMC 176 (KLR)

Chief Magistrate's Court (Magistrates' Court)
25 June 2026
EME.M. Mwamuye
1,387 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court paused police-assisted rent recovery against Mombasa tenants until they get a fair hearing, but stopped short of killing the auctioneer's case.

What this practically means

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Executive summary

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This ruling of the Chief Magistrate's Court at Mombasa (E.M. Mwamuye, Senior Resident Magistrate) determines a Notice of Motion dated 27th March 2026 in which approximately seventy tenants sought setting aside of orders issued on 18th December 2025 authorizing police-assisted distress for rent against premises of the Estate of Wilson Mbugua Njoroge managed through Elegant Investments (1996) Limited, and leave to be heard. The tenants contended they were never served with the auctioneer's application of 2nd December 2025 or proclamation notices and were denied a hearing. The auctioneer, Urbanus Kioko Musyoki t/a Alfajiri Auctioneers, opposed, asserting service by affixing on 11th December 2025, prior proclamation notice service in August 2025, awareness of the tenants as evidenced by BPRT proceedings (Daniel Nyamai & 10 Others v Alfajiri Auctioneers & Another), and a later affidavit by Mannasses Nderitu disowning the application and alleging forgery. The court framed three issues: service, grounds for setting aside, and appropriate orders. It found the affixing of documents on gates was resorted to without an application for substituted service, an exceptional mode requiring justification, but that tenants were not complete strangers to the distress proceedings. Balancing fairness under Article 50 of the Constitution against evidence of arrears, proclamations, prior tribunal proceedings and obstruction, the court partially allowed the motion: the 18th December 2025 orders remain set aside pending inter partes determination; directions for further affidavits and submissions were given; the auctioneer was restrained from removing, selling or disposing of proclaimed goods in the interim; and costs were made to abide the outcome of the main application.

Key legal issues

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01

Whether service of the application dated 2nd December 2025 was effected on the tenants

Holding

Substituted service by affixing on gates was not properly resorted to, but the tenants were not complete strangers to the distress proceedings

Reasoning

The affidavit of service showed the process server affixed pleadings on gates after finding premises locked, without any prior application for substituted service. However, BPRT proceedings of August 2025 and Mannasses Nderitu's affidavit admitting service of a proclamation notice showed the tenants were aware of the underlying distress proceedings.

p. 3
02

Whether the orders of 18th December 2025 should be set aside

Holding

Partially - the orders remain set aside pending inter partes hearing, with the status quo preserved

Reasoning

Police-assisted entry into premises occupied by approximately seventy tenants has serious consequences for property and commercial interests. In keeping with Article 50 of the Constitution, the tenants ought to be afforded an opportunity to place their responses before the Court, warranting reopening of the matter.

p. 3

Legal principles established

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  • The power to set aside ex parte orders is discretionary and exists to prevent injustice from accident, inadvertence or excusable mistake, to ensure disputes are determined on merit
  • Service by affixing is an exceptional mode of service requiring demonstration that personal service could not reasonably be effected

Court orders

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  1. 1.The Notice of Motion dated 27th March 2026 is partially allowed
  2. 2.The orders issued on 18th December 2025 authorizing police supervision and assistance shall remain set aside pending the hearing and determination of the application dated 27th March 2026
  3. 3.The Applicants shall file and serve any further affidavits and documents they wish to rely upon within fourteen (14) days
  4. 4.The Respondent/Auctioneer shall be at liberty to file any supplementary affidavit within fourteen (14) days of service
  5. 5.The parties shall thereafter file written submissions on the application
  6. 6.Pending determination of the application, the Auctioneer shall not remove, sell or otherwise dispose of any proclaimed goods pursuant to the orders of 18th December 2025
  7. 7.Nothing in the ruling shall be construed as determining whether rent arrears are due, whether the proclamations were lawful, whether distress for rent was properly levied, or whether the tenants have fully settled their obligations - those issues to be determined inter partes
  8. 8.Costs of the application shall abide the outcome of the main application

Authorities

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Legislation

  • Constitution of KenyaArticle 50

Cases cited (1)

  • Daniel Nyamai & 10 Others v Alfajiri Auctioneers & Another
    BPRT Case No. E259 of 2025 (order of 25th August 2025)
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court; Article 50 of the Constitution invoked on the right to be heard

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, "Musyoki t/a Alfajiri Auctioneers v Simiyu & 69 others (Miscellaneous Case E495 of 2025) [2026] KEMC 176 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 27th March 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/176/eng@2026-06-25

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