Samuel Gathii Mareri v Josephat Gicheru Kamau & Chador Auctioneers (Interested Party)

execution and preserve the substratum of the suit. Without immediate Court action, the imminent auction will dispose of the subject matter, ultimately rendering the main appeal nugatory and causing irreparable harm. 3) The Appellant thus brought this Application under Sections 1A, 1B, 3A & 75 and 77 of the Civil Procedure Act, Order 42 Rule 6 Civil Procedure Rules, and all enabling provisions of the law seeking the following: a) Spent. b) That CHADOR AUCTIONEERS be enjoined as Interested party herein. c) That there be a temporary stay of execution of the decree and all consequential processes in THIKA CM ELC No. E015 Of 2021 pending the hearing and determination of this application Interpartes. d) That there be a stay of execution pending the hearing and determination of the appeal filed herein and the Motor Vehicle Registration Number KAQ 676F be released by Chador Auctioneers to the Appellant/ Applicant unconditionally. e) Costs of this application be provided for. 4) The application is grounded on the Appellant/Applicant’s appeal against the Judgment delivered on 22/10/2025, in Thika CM ELC Case No. E015 of 2021, which the Appellant contends has high chances of success. The Respondent, through Chador Auctioneers, allegedly executed ELCLA NO. E137 OF 2025 2|Page

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an unlawful and irregular attachment of the Appellant’s motor vehicle (KAQ 676F) without serving the legally required Proclamation Notice, forcefully seized the keys, and left the vehicle in a crime-prone area exposed to vandalism. Because the attached vehicle is scheduled for public auction on 2/02/2026, the Applicant argues that an urgent stay is necessary to prevent imminent, irreparable financial loss and restriction of movement, as well as to stop the Respondent from rendering the main appeal nugatory. Finally, the Applicant affirms that the application was brought without unreasonable delay and offers to deposit the requisite Court costs pending the appeal's outcome. 5) The Application is supported by the Affidavit of Appellant/Applicant Samuel Gathii Mareri sworn on even date. The Deponent, Samuel Gathii Mareri, states that he is duly competent and authorized to swear the affidavit in support of the application for stay of execution pending the hearing of the motion and the determination of the appeal. He adduces and annexes a copy of the Warrant of Attachment of Movable Property dated 30/01/2026, served on him on 12/02/2026, marked as “SGM-1”, alongside a copy of the Notification of Sale for the Movable Property, marked as “SGM-2”. Based on these annexures, the Deponent deposes that the attachment of his motor vehicle is unlawful and illegal. He further deposes that unless this Honourable Court intervenes to issue an order of stay of ELCLA NO. E137 OF 2025 3|Page

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execution, the auctioneers will proceed to sell the subject motor vehicle on 20/02/2026, causing him substantial financial and irreparable loss given that the motor vehicle serves as his indispensable tool of trade aiding his daily movement to work as a Clinical Officer. 6) The Defendant/Respondent in opposition to the Application filed a Replying Affidavit sworn on 2/03/2026. In the Replying Affidavit he contends that the Application is devoid of merit and an abuse of the Court process. He deposes that he is the absolute owner of the suit land known as THIKA MUNICIPALITY BLOCK 15/65, as evidenced by the attached copy of the lease and certificate of lease marked “JGK 1”. He asserts that the Applicant unlawfully took possession of and constructed on his land, prompting the filing of THIKA MC L&E SUIT NO. 15 OF 2021 as well as THIKA CRIMINAL CASE NO. 1460 OF 2020 for forcible detainer, in which criminal matter the Applicant was convicted as demonstrated by the Judgment marked “JGK 2”. Furthermore, the trial Court in THIKA MC L&E NO. 15 OF 2021 rendered Judgment in the Respondent's favor on 22/10/2025, as shown by the decree annexed and marked “JGK 3”. 7) He further avers that the Applicant unprocedurally engaged in forum shopping by filing a Notice of Motion dated 8/11/2025 seeking a review of the trial Court's Judgment as contained in the application marked “JGK 5” while secretly ELCLA NO. E137 OF 2025 4|Page

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holding onto a Memorandum of Appeal dated 20/11/2025 without serving the Respondent, as evidenced by the copy marked “JGK 4”. The review application was subsequently dismissed by the trial Court vide a Ruling dated 17/12/2025, annexed and marked “JKG 6”. 8) Following the award of costs, the Respondent lawfully instructed Chador Auctioneers, who procedurally attached the Applicant’s motor vehicle under the warrants and proclamation notice marked “JKP 7”. The Deponent further deposes that the Applicant subsequently rushed to Court to obtain stay orders, as shown in the order marked “JKG 8”, and contends that the Applicant comes to Court with unclean hands having been convicted, lost the civil suit, and continued to encroach upon the land. Consequently, the Respondent prays that this Honourable Court balance the equitable interests of the parties, order that the motor vehicle not be sold or transferred while its logbook is deposited in Court, discharge the stay orders, and allow the Respondent to enjoy the fruits of his Judgment. 9) The parties canvassed the Application by way of written submissions. The Appellant/Applicant filed their submissions dated 28/03/2026 and the Defendant/Respondent filed his submissions dated 22/05/2026. Appellant’s Submissions 10) The Appellant/Applicant submits in respect of the Application for Stay of Execution dated 12/02/2026, praying ELCLA NO. E137 OF 2025 5|Page

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that the Court grant an order staying execution pending the hearing and determination of this matter. As background, the Appellant asserts that he is a bona fide purchaser for value of Plot No. 49, having paid Kshs 650,000 for the land and subsequently developing it in the full view of the Respondent, who resides in the same neighborhood. By contrast, the Respondent claimed to have purchased two plots Plot Nos. 48 and 49 for Kshs 30,000 each over a payment period spanning 28 years. After the Appellant had fully constructed the premises and let them out to tenants, the Respondent initiated a criminal complaint against him alleging forcible detainer in Thika Criminal Case No. 1460 of 2020. 11) The Appellant submits that a criminal charge could only be legally sustained against him upon proof of both actus reus and mens rea. In this instance, the Appellant genuinely and honestly believed he was rightfully and lawfully in possession of the property, having purchased it at market rate and developed it openly with the full knowledge of both the public and the Respondent. Furthermore, in the spirit of reconciliation following advice from the police, the Appellant had agreed to compensate the Respondent for Plot No. 49 upon which the construction stands, but the Respondent unreasonably insisted on compensation for both Plot Nos. 48 and 49. ELCLA NO. E137 OF 2025 6|Page

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12) The Appellant has tabled his title documents, including the sale agreement dated 7/05/2018 alongside receipts confirming the purchase of the suit plot, upon which he expended millions of shillings in development. The Appellant submits that it is only fair, just, and in the interest of equitable justice for this Honourable Court to grant a stay of execution, as it is this Court and not a criminal Court that possesses the requisite jurisdiction to conclusively determine the ownership of land. Respondent’s Written Submissions 13) The strength Respondent of his opposes Replying the application Affidavit dated on the 2/03/2026, maintaining that he is the bona fide registered proprietor of land parcel Thika Municipality Block 15/65 as evidenced by the lease and certificate of lease, and highlighting that the Appellant was previously arrested, prosecuted, and convicted for forcible detainer over the suit property in Thika Criminal Case No. 1460 of 2020. 14) The Respondent contends that the application constitutes a grave abuse of the Court process and demonstrates bad faith, noting that although the Appellant filed a Memorandum of Appeal dated 20/11/2025, he deliberately concealed it concurrently prosecuting from a the Respondent while review application dated 8/11/2025 before the trial Court. Following the dismissal of the review ELCLA NO. E137 OF 2025 application on 17/12/2025, the Appellant 7|Page

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unprocedurally unleashed the hidden appeal alongside the instant stay application. Framing the issues for determination as whether the application for stay is merited and who should bear costs, the Respondent submits that the Appellant has failed to satisfy the mandatory statutory conditions under Order 42 Rule 6 of the Civil Procedure Rules which are: a) Substantial Loss: The Appellant failed to establish that he would suffer irreparable financial or material damage if execution proceeds. b) Unreasonable Delay: The application was brought after an inordinate delay of over five months following the delivery of the Judgment on 22/10/2025. c) Security for Due Performance: The Appellant failed to offer security as required by law. 15) In support of the mandatory nature of security for due performance, the Respondent relies on Kalume v Mwanzwii & 6 Others [2026] KEHC 4356 (KLR), which cited Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] KEHC 8358 (KLR) quoting Gikonyo J. in Arun C Sharma v Ashana Raikundalia T/A Raikundalia & Co. Advocates, establishing that security under Order 42 Rule 6 guarantees the due performance of any decree that may ultimately bind the Judgment debtor and is not intended as a penalty. ELCLA NO. E137 OF 2025 8|Page

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16) Furthermore, on the issue of dual pursuit of remedies and abuse of process, the Respondent relies on GAB International Construction Co. Ltd v Ndungu [2023] KEHC 17549 (KLR), where the High Court affirmed that under Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 of the Rules, a party who exhausts the process of review cannot subsequently seek an appeal from the same decree to get a second bite at the cherry, as litigation must come to an end. 17) The Respondent maintains that the appeal lacks merit, that the Appellant seeks only to buy time while continuing to trespass on the suit land, and that granting a stay would cause undue prejudice and injustice to a successful litigant who has been deprived of his land. Consequently, the Respondent prays that the Appellant’s application dated 12/02/2026 be dismissed with costs. 18) As already stated, there is a second Application dated 17/02/2026 brought under Section 6 (c) of the Contempt of Court Act No. 46 of 2016, Order 10 Rule 2A, Section 3, 3A of the Civil Procedure Act and all other enabling provisions of the law. The Applicant seeks the following prayers: i. This Honourable Court be pleased to cite the Respondent, E.C WAMBU Trading as CHADOR AUCTIONEERS, for contempt of Court for willful disobedience of the Court Order issued on 16/02/2026. ELCLA NO. E137 OF 2025 9|Page

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ii. The Respondent be committed to civil jail and/or be fined for contempt of this Honourable Court. iii. An order be issued compelling the Respondent to immediately release Motor Vehicle Registration Number KAQ 676F to the Applicant forthwith. iv. The Officer Commanding Thika Police Station do provide security and ensure compliance with the Court Order. v. Costs of this application be provided for. vi. Any other or further orders that this Honourable Court may deem fit and just to grant. 19) The Application is based on the grounds on the face of it and Supporting Affidavit sworn by Dola Indidis an Advocate on even date. 20) The deponent deposes that on or about 12/02/2026, the Respondent attached and towed motor vehicle registration number KAQ 676F to Legend Storage Yard situated at Makongeni, Madharau Estate in Thika Sub-County. The Deponent further deposes that on 16/02/2026, this Honourable Court issued an order directing the release of the said motor vehicle, a copy of which is annexed and marked “DAI1”. He asserts that the said Court order was duly served upon the Respondent on 16/02/2026, as evidenced by the Affidavit of Service sworn on 17/02/2026 and marked “DAI2”. ELCLA NO. E137 OF 2025 10 | P a g e

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21) The Deponent avers that despite service and full knowledge of the Court order, the Respondent has refused or failed to release the motor vehicle, and contends that such actions are deliberate, willful, and contemptuous of the authority of this Honourable Court. 22) Vide a Replying Affidavit sworn by Eliud Chai Wambu the Interested Party on 22/05/2026, the Deponent, E.C. Wambu, trading as Chador Auctioneers, deposes that he is a licensed auctioneer holding a valid practicing license for the current year, a copy of which is annexed and marked “ECW 1”. He deposes that he was lawfully instructed by the Respondent’s Counsel to execute the decree for costs arising from Thika MC L&E Case No. E015 of 2021 (Josephat Gacheru Kamau v Samwel Gathii Mareri), as evidenced by the instructions annexed and marked “ECW 2”. Pursuant to these instructions, he obtained Warrants of Attachment and Sale from the Court, marked as “ECW 3”, and subsequently conducted an official search confirming the Judgment debtor's ownership of motor vehicle registration number KAQ 676F Subaru before issuing a proclamation, as shown in the search and proclamation documents annexed and marked “ECW 4 (a), (b) & (c)”. 23) He denies being served with any Court order for the release of the vehicle, asserting that had he been served, he would have fully complied. He observes that the Applicant’s physical Court filing lacks an annexed affidavit of service or ELCLA NO. E137 OF 2025 11 | P a g e

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proof of service and fails to identify any specific staff member purportedly served at his office. He further submits that he was never personally served with any release order as required by law in contempt proceedings. 24) Additionally, the Deponent refers to the Court order dated 16/02/2026 retrieved from the Case Tracking System (CTS), annexed and marked “ECW 5”, pointing out that paragraph 4 merely states; "That an interim stay of execution is hereby granted in respect of prayer 3 and 4 pending the hearing of the application inter-parties." 25) He contends that without the underlying application, the order as extracted was vague and ambiguous, and that Applicant's Counsel ought to have extracted clear terms. On advice of Counsel, the Deponent submits that contempt proceedings demand a higher standard of proof than the balance of probabilities given that personal liberty is at stake. He affirms that as an officer of the Court, he respects judicial authority and prays that the application for committal be dismissed with costs. 26) The parties agreed to canvass the Application by way of written submissions. Key Issues for Determination 27) Having considered the applications, the affidavits, and the submissions filed by all parties, the key issues for determination in respect of the two applications are: ELCLA NO. E137 OF 2025 12 | P a g e

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i. Whether the Applicant has satisfied the mandatory statutory criteria under Order 42 Rule 6(2) of the Civil Procedure Rules for the grant of a stay of execution pending appeal. ii. Whether the concurrent pursuit of a review application in the trial Court and a unserved appeal constitutes an abuse of the Court process rendering the application unmerited. iii. Whether Chador Auctioneers ought to be enjoined as Interested Party to the an proceedings. iv. Whether the Respondent/Interested Party (E.C. Wambu t/a Chador Auctioneers) was personally served with a clear, unambiguous, and penalendorsed Court order. v. Whether the standard of proof required in civil contempt proceedings has been established to show willful and deliberate disobedience of the Court order issued on 16th February 2026. Analysis and Determination of the Law 28) The power of this Court to grant a stay of execution pending appeal is governed by Order 42 Rule 6(2) of the Civil Procedure Rules, which provides: " (2) No order for stay of execution shall be made under sub rule (1) Unless— ELCLA NO. E137 OF 2025 13 | P a g e

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a. The Court is satisfied that substantial loss may result to the Applicant unless the order is made b. That the application has been made without unreasonable delay; and c. Such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant." 29) To succeed, an Applicant must satisfy three cumulative conditions: demonstration of substantial loss, absence of unreasonable delay, and the provision or offer of security for the due performance of the decree. 30) Regarding substantial loss, the Applicant claims that the attached motor vehicle (KAQ 676F) is his tool of trade used in his daily work as a Clinical Officer. However, in execution of a money decree for costs, substantial loss is not established merely by showing that property has been attached. The Applicant must show that the Respondent would be unable to refund the proceeds or restore the status quo should the appeal succeed. In National Industrial Credit Bank Ltd v. Thompson [2000] eKLR, the Court of Appeal emphasized: "The Applicant must show that if the stay is not granted, the appeal would be rendered nugatory and he would suffer substantial loss... Where execution is in respect of a money decree, ELCLA NO. E137 OF 2025 14 | P a g e

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substantial loss can only be established if it is shown that the Respondent is a person of no means and would be unable to refund the decretal sum if the appeal succeeds." 31) There are a myriad of cases on what constitutes substantial loss. In Civil Standard Assurance Appeal Co. Ltd No. 186 Of –Vs- Alfred 2007 Mumea Komu the Court stated“Substantial loss, in its various forms is the corner stone of best jurisdictions for granting a stay. That is what has to be presented. Therefore, without this evidence, it is difficult to see why the Respondents should be kept out of their money.” 32) Similarly, in Civil Case No. 41 Of 1995 United Builders & Contractors (Africa) Limited –Vs- Standard Chartered Bank Ltd the Court stated“If there is no evidence of substantial loss to the Applicant, it would be a rare case when an appeal would be rendered nugatory by some other suits.” 33) Regarding unreasonable delay, Judgment in the trial Court Thika CM ELC Case No. E015 of 2021 was delivered on 22/10/2025. The Applicant filed a Memorandum of Appeal dated 20/11/2025 but concealed it while actively prosecuting a Motion for Review dated 8/11/2025 in the ELCLA NO. E137 OF 2025 15 | P a g e

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lower Court. The instant stay application was only brought on 12/02/2026 after the review was dismissed on 1/12/2025. This delay of nearly four months without serving the appeal or moving the Court promptly fails the test of timeliness. 34) On security for due performance, while the Applicant indicated a willingness to deposit costs, Order 42 Rule 6(2) (b) requires concrete performance guarantees. As stated by Gikonyo J. in Arun C. Sharma v. Ashana Raikundalia T/A Raikundalia & Co. Advocates [2014] eKLR (and reaffirmed in Kalume v. Mwanzwii & 6 Others [2026] KEHC 4356 (KLR)): "The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the Judgment debtor... security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the Applicants." 35) Furthermore, the Applicant’s dual track of seeking review while secretly holding onto an unserved Memorandum of Appeal, only to unleash it after losing the review, amounts to forum shopping and an abuse of the Court process. Under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, a party who exhausts the remedy of review cannot re-litigate the same ELCLA NO. E137 OF 2025 16 | P a g e

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decision via an appeal to get a second bite at the cherry. This was clearly stated in GAB International Construction Co. Ltd v. Ndungu [supra], the High Court succinctly observed: "A proper reading of section 80 of the Act and Order 45 Rules 1 and 2 of the Rules makes it abundantly clear that a party cannot apply for review and appeal from the same decree or order... The Appellant wants to have a second bite of the cherry. It cannot be permitted to do so. Its memorandum of appeal constitutes an abuse of the process of the Court and the same must definitely fail. The Appellant had its day in Court when it chose to seek a review... Litigation somehow must come to an end." 36) As equity leans against litigants with unclean hands who abuse Court processes, the application for stay fails on both statutory criteria and equitable principles. 37) For the Application for Contempt of Court dated 17/02/2026. The Applicant seeks the committal of E.C. Wambu t/a Chador Auctioneers for alleged contempt of the order issued on 16/02/2026. Civil contempt proceedings touch on personal liberty and carry penal consequences; hence, the legal requirements are stringent. 38) First, personal service of the Court order accompanied by a penal notice is a mandatory prerequisite for citing a ELCLA NO. E137 OF 2025 17 | P a g e

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party for civil contempt under Kenyan law, unless personal service is explicitly dispensed with by order of the Court. In Gatharia K. Mutikika v. Baharini Farm Limited [1985] eKLR, the Court of Appeal held: "A Court order must be served personally on the party bound by it before contempt proceedings can be maintained. Personal service is a mandatory requirement where a penal sanction such as committal to civil jail is sought." 39) The Applicant failed to produce an Affidavit of Service demonstrating personal service upon E.C. Wambu or identifying any authorized employee who received the order at Chador Auctioneers' offices. The Respondent/Interested Party categorically denied personal service under oath. 40) Second, the standard of proof in civil contempt proceedings is higher than the ordinary civil standard of balance of probabilities; it approaches the criminal standard of proof beyond reasonable doubt. The Supreme Court in Githiga & 5 Others v Kiru Tea Factory Company Ltd (Petition 13 of 2019) [2023] KESC 41 (KLR) (16 June 2023) (Judgment), discussed different aspects of contempt and rendered itself as follows; “Due to the quasi-criminal nature of contempt proceedings and the gravity of the consequences that flow from these proceedings, Courts are required to adhere to the principles of natural ELCLA NO. E137 OF 2025 18 | P a g e

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justice, procedural fairness, and the right to a fair hearing. This is because, in contempt proceedings, the liberty of the subject is usually at stake; therefore, if a party alleges breaches of his fundamental rights and freedoms as envisaged under the Constitution , albeit, at the Court of Appeal, this Court cannot afford to shut its eyes to such serious legal issues that call for settling as the apex Court.” 41) Third, the order sought to be enforced must be clear, unambiguous, and explicit in its directives. Paragraph 4 of the extracted order dated 16/02/2026 stated: "That an interim stay of execution is hereby granted in respect of prayer 3 and 4 pending the hearing of the application inter-parties." The order did not contain an explicit, unambiguous mandatory order directing the immediate release of the vehicle by the auctioneer. In the landmark English decision in Re Bramblevale Ltd [1970] Ch 128 (adopted across Commonwealth jurisdictions and in Kenya): "A party cannot be found guilty of contempt of Court unless the order alleged to have been breached is clear and unambiguous, and it is proved beyond reasonable doubt that the contemnor had knowledge of the order and deliberately disobeyed it." ELCLA NO. E137 OF 2025 19 | P a g e

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42) From the matter before the Court, an order does not need to restate every word of a motion to be clear. By explicitly granting a stay "in respect of prayer 3 and 4," the Court legally incorporated those specific text fragments directly into its order. Under Kenyan jurisprudence, a party cannot unilaterally decide a Court order is too vague to follow and then proceed with execution anyway. 43) If the executing party truly found the wording ambiguous, their lawful recourse was to file an urgent application for variation or clarification not to impound the asset. 44) I however not that whereas a party filing an application for contempt of Court for disobedience of a Court order must place the order before the Court and prove its existence, terms, and service. The Applicant herein has failed to place the said order before the Court although in the Affidavit sworn 17/02/2026 at paragraph 3 he alleges to have annexed the Order, my search of the CTS yielded not result nor the hard copy filed in Court did not have such an annexure marked as “DAII” as allege. Failing to attach or properly present the specific order alleged to have been breached makes it difficult or impossible to establish the foundational elements of civil or criminal contempt. 45) Thus, given failure to attach a copy of the extracted order, the absence of proof of personal service, and the failure to meet the high standard of proof required to ELCLA NO. E137 OF 2025 20 | P a g e

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establish willful disobedience, the application for contempt cannot stand. 46) The Court therefore proceeds and makes the following orders in respect of the two applications herein dated 12/02/2026 and 17/02/2026: i) The application for stay of execution pending appeal is hereby dismissed. ii) Prayer 2 seeking the enjoinder of CHADOR AUCTIONEERS as an Interested Party is granted for the limited purpose of these execution proceedings. iii) The interim stay orders issued on 16/02/2026 are hereby vacated and discharged. iv) The application seeking to cite and commit the Respondent/Interested Party E.C. WAMBU Trading as CHADOR AUCTIONEERS for contempt of Court is hereby dismissed in its entirety. v) Applicant shall bear the costs of both applications to the Respondent and to the Interested Party. vi) Mention on 12/10/2026 for disposal of the Appeal. 47) Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 21ST SEPTEMBER 2026 ELCLA NO. E137 OF 2025 21 | P a g e

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……………………… MOGENI J JUDGE In the presence of: Applicant – Absent Respondent – Absent Mr. Riugu for the Interested Party Mr. Melita - Court Assistant ………………… MOGENI J JUDGE ELCLA NO. E137 OF 2025 22 | P a g e

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