Jeremia Muchendu T/A Icon Auctioneers v Fourth Generation Capital Limited & another

3. THAT this Honourable Court be pleased to find and hold that the proceedings and Orders issued against Icon Auctioneers are nullity ab initio, the said entity being a business name lacking legal capacity to sue or be sued. 4. THAT this Honourable Court be pleased to strike out and/or discharge all findings and Orders of contempt issued against Icon Auctioneers. 5. THAT in the alternative and without prejudice to the foregoing, this Honourable Court be pleased to set aside the contempt findings and consequential Orders on account of want of service, breach of the rules of natural justice, and violation of the right to a fair hearing. 6. THAT this Honourable Court be pleased to find and hold that the execution undertaken pursuant to the warrants of attachment warrants having been was lawful, the said validly issued by this Honourable Court. 7. THAT this Honourable Court be pleased to set aside and/or vacate the Orders directing the release of Motor Vehicle Registration Number KSP 892R, the same having been overtaken by events and/or issued in error. 8. THAT the costs of this Application be provided for. Applicant’s Case 2 The Applicant avers that in the impugned Ruling, this Court found the entity known as Icon Auctioneers liable for contempt of court and proceeded to issue adverse orders Page 2 of 32

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against it, notwithstanding that Icon Auctioneers is merely a business name and not a juristic person capable of suing or being sued in its own name. 3 It is contended that in law a business name lacks legal personality, and that any proceedings or orders issued against such a non-existent entity is a nullity ab initio, thereby disclosing an error apparent on the face of the record. 4 The Applicant further states that Icon Auctioneers was never formally joined to the proceedings as an Interested Party or in any other capacity, and that no order on record effected such proceeded to joinder, issue yet the Court nonetheless findings and orders against it, occasioning what the Applicant terms a fundamental procedural irregularity and a violation of the rules of natural justice. 5 It is also averred that the Court's orders directing release of Motor Vehicle Registration Number KSP 892R were made in error, as no such vehicle exists in the records of the National Transport Authority and it was never the subject of the proceedings 6 It further avers that, in any event, Motor Vehicle Registration Number KDP 892R had already been released to the Respondent on 27th October 2025, some five months prior to the Ruling, rendering the subsequent release order overtaken by events. Page 3 of 32

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7 The Applicant contends that contempt proceedings, being quasi-criminal in nature, attach personal liability and cannot properly be visited upon a non-juristic entity, nor imposed absent proper service and participation. 8 It is the Applicant’s case that Mr. Jeremiah Muchendu, who would properly have been the respondent to any such proceedings, was never served with any pleadings, applications or court orders relating to the contempt proceedings, was not named in the underlying application or the Ruling, and was consequently denied the opportunity to be heard or to defend himself, in violation of Article 50 of the Constitution. 9 The Applicant maintains, in the alternative and without prejudice to the foregoing, that the warrants of attachment underlying the impugned execution were lawfully and validly issued by this Court, and that the Applicant acted strictly in execution of such lawful process. 10 It is their case that a party cannot in law be held in contempt for actions undertaken pursuant to valid and subsisting court orders, and that to hold otherwise would amount to penalizing obedience to the Court's own orders. 11 It is the Applicant's case that the intended application raises weighty and arguable issues of law including the lack of legal capacity of a business name, absence of proper joinder, want of service, and breach of the rules of natural justice. Page 4 of 32

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12 It avers that absent urgent intervention, the Applicant stands to suffer grave prejudice and irreparable harm, including exposure to punitive orders and sanctions affecting personal liberty and professional standing. 13 The Applicant states that the application has been brought without undue delay and in utmost good faith. 14 In a Supplementary Affidavit sworn on 18 th May 2026 in response to the 1st Respondent's Replying Affidavit filed and served on 8th May 2026, the Applicant avers that the said Replying Affidavit, raises only arguments and hypothetical matters, and fails to answer any issue raised in the application or to controvert the facts in issue with any evidence. 15 The Applicant states that the 1 st Respondent has itself admitted that Icon Auctioneers is a business name incapable of being sued as purported, and annexes a certificate of registration from the Business Registration Service confirming Icon Auctioneers to be a business name, registered on 11th July 2005 under Company Number 420245, with the Applicant, as its sole proprietor. 16 It is further averred that the 1 st Respondent has neither furnished particulars of any order joining the Applicant as an interested party nor annexed any application it made seeking such joinder. 17 The Applicant reiterates that he was never served with or made aware of any application for contempt, and Page 5 of 32

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consequently was not heard before the Court made its determination on that application. 18 He avers that the application which the 1 st Respondent claims to have served upon him does not in fact bear his name, Jeremia Muchendu, as a party sued or to be served, and that the 1st Respondent has admitted that its advocate spoke to one "Chege" who was served with the court documents. 19 The Applicant asserts that he is not Chege, does not go by that name or any such alias, and never authorized Chege to receive court process on his behalf. 20 The Applicant avers that the 1 st Respondent has admitted that Motor Vehicle Registration Number KSP 892R is not owned by the 1st Respondent, and states that he has never had the said motor vehicle in his custody and therefore could not have released what was not his to release; this, it is contended, is an error apparent on the face of the record which the 1st Respondent was aware of but concealed from the Court. 21 The Applicant further avers that the 1 st Respondent has admitted that Motor Vehicle Registration Number KDP 892R was released as directed by the Court on or about 27th October 2025, and contends that having discharged his duty by that release, the 1st Respondent's failure to inform the Court of it occasioned the further error now on record, namely that he is shown as having disobeyed the Court's orders. Page 6 of 32

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22 The Applicant asserts that, given the 1 st Respondent's admitted failure to serve him with the contempt application or otherwise inform him of the contempt proceedings, there was no way he could have known of the proceedings or placed material before the Court to forestall the errors complained of. 23 It is the Applicant’s case that the 1 st Respondent's admitted concealment of the fact that motor vehicle KDP 892R had already been released before the contempt proceedings were instituted is sufficient ground for review of the Court's decision, and that unless the order is reviewed, the record will erroneously stand as showing that he disobeyed the Court's orders by continuing to hold a motor vehicle belonging to the 1st Respondent. Applicants’ Case 24 The Applicants’ application was supported by an affidavit sworn by the 3rd Applicant, Mark Irungu, an Advocate of the High Court practising in the firm known as Murage Juma & Company Advocates, which has been on record for the Claimant. 25 The Applicants aver that the firm was never a substantive party to the proceedings, was never joined as an interested party, respondent, contemnor or proposed contemnor, and that on the record there is no direct or specific positive order directed at the firm capable of having been breached so as to warrant contempt proceedings against it. Page 7 of 32

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26 They state that, notwithstanding this, the Court, vide its Ruling of 18th March 2026, made adverse findings against the firm, held it personally liable for the alleged contempt, and directed that the costs of the application be borne by the Claimant's counsel and the auctioneer, exposing the 1st and 2nd Applicants as partners, and the 3 rd Applicant as an advocate practicing therein, to imminent penal, financial, professional and reputational prejudice. 27 It is the Applicants' case that Murage Juma & Company Advocates is merely a firm or business name under which the 1st and 2nd Applicants carry on legal practice, and not a natural person, body corporate or juristic entity capable of being found guilty of contempt or punished in its own name; that the appearance of an advocate on record for a client does not transform the advocate, the partners, or the firm name into a substantive party to the proceedings; and that the finding of contempt against the firm is accordingly nebulous as to which party or entity is held liable, and a nullity to the extent that it purports to impose personal or penal liability upon a non-juristic entity. 28 The Applicants further aver that no notice to show cause, summons, penal notice or equivalent process was ever served upon them, whether personally or as partners, requiring them to answer to a charge of contempt; that no pleadings were amended and no directions were issued enjoining them as distinct contemnors; and that any response or appearance filed by counsel on behalf of the Claimant was filed in a representative capacity only and Page 8 of 32

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cannot be construed as a waiver of their right to be separately joined, charged and heard in respect of personal contempt liability. 29 They contend that contempt proceedings, being penal and quasi-criminal, require that an alleged contemnor be clearly identified, properly brought before the Court, informed of the charge, and heard before adverse findings are made, and that mere alleged knowledge of court orders does not suffice to ground contempt absent proper service, joinder and hearing. 30 It is their case that they were condemned unheard, contrary to natural justice and the right to a fair hearing, and that the alleged contempt was not proved to the requisite standard. 31 The Applicants deny having acted in willful, deliberate or contumacious disobedience of any court order, and state that they acted at all times within the scope of their professional and lawful duties, holding the Court and its orders in the highest respect. 32 Responding to the Replying Affidavit of Kelvin Amota, they deny that the application is a disguised appeal, asserting instead that it is a legitimate invocation of the Court's inherent jurisdiction to review, vary or set aside its own orders where issued in violation of natural justice, and deny that they are seeking to evade compliance with lawful orders, delay execution, or re-litigate concluded issues, maintaining that the application is confined strictly Page 9 of 32

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to procedural improprieties and breaches of natural justice in the impugned Ruling. 33 The Applicants contend that no prejudice incapable of compensation by costs will be occasioned to the Respondent should the orders sought be granted, whereas they themselves stand to suffer substantial and irreparable prejudice, including exposure to contempt sanctions, adverse costs and reputational and professional harm, should the orders not be granted. 1st Respondent’s Case 34 In opposition to Applicant’s case, the 1 st Respondent filed a replying affidavit dated 5th May 2026 and sworn by its Senior Legal Officer, Kelvin Amota. 35 The 1st Respondent avers, at the outset, that the application is misconceived, vexatious, incompetent, bad in law, and a gross abuse of the process of the Court, the same having been calculated solely to delay, frustrate and defeat the lawful enforcement of the valid Ruling delivered on 18th March 2026. 36 It is the 1st Respondent's case that the application is in truth a calculated and deliberate attempt by the Applicant to evade the consequences of the finding of contempt, and improperly invites the Court to sit on appeal over its own decision under the guise of a review application. 37 The 1st Respondent contends that the Court's jurisdiction on review under Section 80 of the Civil Procedure Act and Page 10 of 32

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Order 45 Rule 1 of the Civil Procedure Rules is circumscribed and may only be invoked upon discovery of new and important matter or evidence not within the Applicant's knowledge or producible at the time the order was made, or where there is an error apparent on the face of the record, or for other sufficient reason. 38 It is averred that a review is not an avenue for re-arguing points of law or challenging the correctness of the Court's findings, such discontent properly lying in an appeal, and reliance is placed on National Bank Of Kenya Limited Vs Ndungu Njau [1997]eKLR to this effect. 39 The 1st Respondent asserts that the Applicant has not demonstrated any new and important matter, any error apparent on the face of the record, or any sufficient reason, but instead improperly invites the Court to reconsider service, its reasoning knowledge of and findings on contempt, court orders, execution, the Applicant's legal status, and the effect of the release of Motor Vehicle Registration Number KDP 892R matters said to fall squarely within the province of an appeal. 40 It is further contended that the Court, having rendered itself conclusively in the Ruling of 18 th March 2026, became functus officio on the merits of those issues, and reliance is placed on Cogno Ventures Limited v Bia Tosha Distributors Limited [2023] KESC 33 (KLR), for the proposition that review jurisdiction may not be used to mount a collateral attack on a concluded matter. On this Page 11 of 32

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basis, the 1st Respondent urges that the application be dismissed in limine as a collateral attack on the Ruling. 41 Turning to the lawfulness of the execution, the 1st Respondent states that the Applicant's averment that the warrants of attachment were lawfully issued and acted upon is misleading, incomplete and deliberately conceals material facts. 42 It is averred that the Court's Order of 24th September 2025, made upon the 1st Respondent's application of the same date, reviewed and set aside the earlier precondition of deposit of half the decretal sum, while leaving the interim stay intact, thereby reinstating the stay orders issued on 28th August 2025 and rendering any subsequent execution void ab initio. 43 The 1st Respondent avers that, notwithstanding the subsistence of these stay orders, the Claimant and/or his Advocates unlawfully instructed the Applicant to execute and attach the 1st Respondent's motor vehicle Number KDP 892R, on 24th September 2025, despite the Applicant's auctioneer, one Mr. Chege, having been engaged by the 1st Respondent's Advocates by telephone and informed of the subsisting stay, and despite service upon the Applicant of the relevant court orders and correspondence dated 9th October 2025 cautioning that continued execution would be unlawful. 44 It is averred that Mr. Chege nonetheless stated he was acting on instructions from the Claimant's Advocates and declined to acknowledge the caution. Page 12 of 32

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45 On this account, the 1st Respondent contends that it was not open to the Applicant to rely on the warrants of attachment as a shield where execution was undertaken in violation of a subsisting court order of which the Applicant had been notified, and that the conduct of the Claimant, his Advocates, and the Applicant was deliberate, wilful and amounted to blatant contempt. 46 The 1st Respondent further avers that the Applicant has been evasive and economical in disclosing material information, and that his concealment of these facts amounts to material non-disclosure, relying on Republic v Kensington Income Tax Commissioners, ex parte Princess de Polignac (1917) 1 KB 486. 47 The 1st Respondent avers that the Applicant has failed to satisfy the conditions precedent under Order 42 Rule 6(2) of the Civil Procedure Rules, in particular by failing to demonstrate risk of substantial loss or to furnish security, and contends that the prayer for stay is intended merely to suspend the consequences of a valid contempt finding and shield the Applicant from the Court's authority, contrary to the principle that court orders must be obeyed until set aside. 48 It is further averred that the Applicant, having twice been found in contempt, comes to the Court with unclean hands and does not deserve audience, relying on the maxim that he who comes to equity must come with clean hands, and on Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another Page 13 of 32

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[2005] eKLR for the proposition that an alleged contemnor has no right of audience unless punished or the contempt is purged. 49 It is the 1st Respondent’s case that the Court's contempt jurisdiction is directed at the conduct of a person in relation to a subsisting order and not merely at formal party status, and that any person, including an agent, servant or auctioneer acting under instructions, who has actual or constructive knowledge of a valid court order and disobeys it is liable to be cited for contempt irrespective of formal joinder. 50 The 1st Respondent further avers that the settled threshold for contempt requires proof only of a clear and unambiguous order, knowledge of it, and an intentional act or omission in breach thereof, without need to prove deliberate intent to undermine the Court's authority. 51 The 1st Respondent categorically denies the Applicant's averment that he was never served with or informed of the contempt application or the directions taken thereon, describing this averment as false and intended to mislead the Court. 52 It avers that service of the submissions, supplementary affidavit and supplementary submissions was duly effected upon the Applicant through his official email address, iconauctions@gmail.com obtained from the Applicant's own letterhead, annexing delivery reports dated 6th February 2026 and 10t March 2026 as evidence Page 14 of 32

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of such service, and noting that the Applicant has not denied ownership of that email address. 53 In any event, the 1st Respondent contends that personal service is not a strict requirement in contempt proceedings and that knowledge of the existence of the order suffices. 54 The 1st Respondent concedes that the vehicle was subsequently released but avers that such release does not cure, extinguish or mitigate the contempt already committed, contempt being complete at the point of wilful disobedience of a subsisting order, and that subsequent compliance cannot retrospectively validate the earlier breach or be relied upon as a defence. Claimant/2nd Respondent’s Case 55 In opposition to the application, the Claimant filed a replying affidavit dated 6th May 2026. 56 The Claimant avers that he completely agrees that the Ruling of 18th March 2026 ought to be set aside, stating that he is advised by his Advocates that both Murage Juma & Company Advocates and Icon Auctioneers are business names incapable of being sued and lacking legal capacity. 57 The Claimant further states that Motor Vehicle Registration Number KDP 892R was released well before the Ruling of 18th March 2026, and avers that he has been informed by the auctioneer that no motor vehicle registration Number KSP 892R was ever attached, such that the order directing Page 15 of 32

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release of a motor vehicle neither attached nor belonging to the Respondent was erroneous. 58 The Claimant discloses that he has already filed a notice of appeal challenging the decision of 18 th March 2026, and states that he verily believes the said appeal has chances of success. Claimant Advocate’s Case 59 In support of the application, the advocate filed a Supporting Affidavit sworn by Mark Irungu, an Advocate of the High Court of Kenya practising at Murage Juma & Company Advocates, the firm on record for the Claimant/2nd Respondent. 60 It averred that the firm acted at all material times strictly in its professional and representative capacity as advocates for the Claimant, and was never a substantive party to the proceedings, having never been formally joined as a respondent, interested party, contemnor, proposed contemnor, or person personally answerable to contempt. 61 It is the Advocate's case that, despite this, the Court in its Ruling of 18th March 2026 made adverse findings against the Claimant's counsel and directed that counsel and the auctioneer bear costs personally. 62 The Advocate contends that contempt proceedings are quasi-criminal in nature and require that any person sought to be punished be clearly identified, properly cited, Page 16 of 32

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properly served, and afforded a fair opportunity to answer the charge before an adverse finding is made. 63 It is averred that no application was ever made to join the firm, its partners, or any advocate practising therein as contemnors, no order was issued effecting such joinder, and no notice to show cause was issued requiring them to personally answer any charge of contempt. 64 The Advocate asserts that all pleadings, submissions, appearances and advocacy undertaken by the firm were done on behalf of the Claimant and not on behalf of the firm or its advocates as accused contemnors, and that an advocate's appearance on record for a client does not, in law, transform the advocate or firm into a substantive party, still less convert professional representation into personal penal liability absent proper joinder, notice, citation and due process. 65 It is further averred that Murage Juma & Company Advocates is merely a firm or business name under which legal practice is conducted, and is not a body corporate, natural person, or juristic entity capable of being found guilty of or punished for contempt in its own name; that contempt, being personal and penal, cannot properly culminate in findings of guilt, punishment, personal costs, or adverse consequences against a firm name absent identification, joinder, service, and hearing of the specific natural person alleged to have committed the contempt; and that the essential elements of contempt were never specifically proved against the firm, its partners, or any Page 17 of 32

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advocate practising therein as separate alleged contemnors. 66 The Advocate takes issue with the 1 st Respondent's characterization of the challenge as an appeal disguised as a review, averring instead that the true issue is whether adverse quasi-criminal findings could properly be made against counsel who were never joined, cited, served, or heard in their own capacity, and contends that this denial of the right to be heard, coupled with lack of joinder and imposition of personal liability on a non-party, constitutes sufficient reason and/or an error apparent on the face of the record warranting review, variation, setting aside or discharge of the impugned findings. 67 It is further averred that the doctrine of functus officio does not bar the Court's review jurisdiction where, as here, the impugned orders were made against persons not heard before the adverse findings were entered, and that knowledge of a court order does not answer the separate requirement that a person exposed to contempt sanctions be clearly cited and given an opportunity to defend themselves. 68 The Advocate distinguishes service upon and participation by counsel in their representative capacity from service upon and participation by counsel as accused persons in their personal capacity, and avers that no such distinct process was undertaken in respect of the firm before the Ruling. Page 18 of 32

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69 On the merits of the underlying dispute, the Advocate avers that the question whether the stay orders were in force at the material time was the subject of genuinely competing legal interpretations: the Claimant's position being that the stay order of 22 nd September 2025 was conditional on deposit of half the decretal sum by 26 th September 2025 and lapsed on non-compliance, against the 1st Respondent's position that the order of 24 th September 2025 varied and set aside that condition, thereby preserving the earlier stay. 70 It is contended that this divergence demonstrates an issue of legal construction and arguable interpretation rather than clear, wilful and deliberate disobedience by counsel, and that the firm at all times acted on a bona fide understanding of the court record, decree, warrants of attachment, and client instructions. 71 The Advocate avers that to punish counsel for advancing a legally arguable position on a client's behalf, without a separate opportunity to be heard as an alleged contemnor, would offend due process and fair hearing. 72 It is the Advocate’s case that unless the impugned findings and consequential orders are stayed, reviewed, varied, set aside, discharged or vacated, the firm, its partners and advocates stand to suffer grave prejudice, including exposure professional to punishment, embarrassment, personal reputational harm, costs, and possible disciplinary consequences. Page 19 of 32

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73 It is contended that the interests of justice, fairness, due process and the integrity of judicial proceedings require that the adverse findings against Murage Juma & Company Advocates in the Ruling of 18 th March 2026 be reviewed, varied, set aside, discharged or vacated. Applicant’s Submissions 74 The Applicant submitted on five issues: whether the Applicant has met the threshold for review, variation, and/or setting aside of the ruling and orders delivered on 18th March 2026; whether Icon Auctioneers, being a business name, could lawfully be condemned in contempt proceedings without the proprietor being properly joined, cited, served, and heard; whether the Applicant was denied the right to fair hearing and fair administrative/judicial process before adverse contempt findings were made; whether the alleged errors relating to Motor Vehicle Registration Number KDP 892R/KSP 892R and the prior release of the motor vehicle constitute errors apparent on the face of the record and/or sufficient reason for review; whether contempt could properly lie against the Applicant in the circumstances of this case. 75 On the first issue, the Applicant anchored the jurisdiction of the Court in Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, submitting that review lies where there is discovery of new and important matter, an error apparent on the face of the record, or any other sufficient reason. Page 20 of 32

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76 It was submitted that the application was not an appeal in disguise, as characterized by the 1st Respondent, since the Applicant did not seek to reargue the merits of the execution dispute between the Claimant and the 1st Respondent, but merely sought the Court's intervention on account of a non-party, trading under a business name, being exposed to penal consequences without proper joinder, service or hearing. Reliance was placed on Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR for the proposition that sufficient reason is construed broadly to encompass the interests of justice. 77 On the doctrine of functus officio, the Applicant argued, citing Telkom Kenya Limited v John O. Ochanda J [2014] eKLR and Raila Odinga & 2 Others v IEBC & 3 Others [2013] eKLR, that the doctrine is not absolute and does not bar correction of clerical or other appropriate errors, especially where the errors cause a grave injustice to an individual. 78 On the second issue, the Applicant avers that Icon Auctioneers is merely a registered business name and not a body corporate or juristic person capable of being sued, joined or punished in its own right, a certificate of registration having been annexed in support. 79 The Applicant submitted that the 1 st Respondent adduced no evidence to the contrary, and relied on Housing Finance Company of Kenya Ltd v Embakasi Youth Development Project [2004] eKLR for the settled Page 21 of 32

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position that proceedings against a non-juristic entity are incompetent. 80 It was contended that while a proprietor may in principle be held answerable for acts done under a business name, this could only occur where the natural person is expressly identified, properly brought before court, served and given an opportunity to be heard none of which, it was argued, occurred in respect of Jeremiah Muchendu, there being no order joining him, no application seeking his joinder, and no proof of personal service upon him prior to the impugned ruling. 81 On the third issue, the Applicant invoked Articles 25(c), 47 and 50(1) of the Constitution, submitting that the right to a fair hearing is foundational and non-derogable, particularly where penal consequences are in issue. 82 Citing Onyango Oloo v Attorney General [1986–1989] EA 456, it was argued that a decision reached in breach of natural justice is void regardless of the ultimate outcome that might otherwise have been reached. 83 The Applicant disputed the sufficiency of the alleged service via the email address associated with Icon Auctioneers and through one Chege, submitting that no evidence was placed before the court demonstrating that Chege was authorised to accept service on Mr Muchendu's behalf, and that the email correspondence relied upon at best showed transmission of submissions, not personal service of any contempt application, penal notice or hearing notice. Page 22 of 32

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84 It was submitted that knowledge of a court order is analytically distinct from notice of contempt proceedings, the latter demanding a real opportunity to respond before condemnation. 85 On the fourth issue, the Applicant submitted that the vehicle the subject of the underlying proceedings was registration KDP 892R, whereas the impugned ruling and orders referred to KSP 892R, a vehicle never shown to have been attached or held by him. It was argued that this was not a trivial discrepancy given the penal consequences attaching to the order. 86 Further, the Applicant submitted that the vehicle had already been released as far back as 27 th October 2025, several months before the ruling of 18 th March 2026, rendering the consequential release order overtaken by events and productive of a real risk that the record would wrongly suggest continued non-compliance. Reliance was placed on National Bank Of Kenya Limited Vs Ndungu Njau [1997]eKLR for the principle that review lies for errors apparent on the face of the record not requiring elaborate argument. 87 On the final issue, the Applicant submitted, invoking Order 45 Rule 1(b), that the failure to be heard constituted the clearest form of sufficient reason for review, given the quasi-criminal character of contempt proceedings. He relied on Babs Security Services Ltd v Mwarua Yawa Nzao & 19 others [2019] eKLR, which approved the Indian Supreme Court's dictum in Sangram Singh vs Page 23 of 32

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Election Tribunal, Koteh, AIR 1955 SC 664 that procedural law is grounded in the principle that "men should not be condemned unheard." 88 Similarly, reliance was placed on the Supreme Court's holding in Githiga & 5 others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR), to the effect that the quasi-criminal nature of contempt proceedings obliges courts to adhere strictly to natural justice and procedural fairness given that the liberty of the subject is usually at stake. 89 On this basis, it was submitted that permitting the 1 st Respondent's position to stand would set a dangerous precedent enabling a business name to be condemned, and its proprietor sentenced, without formal joinder or hearing. Claimant Advocate/ Interested party’s Submissions 90 On jurisdiction, it was submitted that Rule 33 of the Employment and Labour Relations Court (Procedure) Rules vests this Court with power to review its own ruling, judgment or order on grounds including discovery of new evidence, mistake or error apparent on the face of the record, need for clarification, or any other sufficient reason, and that this Rule accordingly clothes the Court with jurisdiction to review the Ruling of 18th March 2026. 91 On errors apparent on the record, the Interested Party submitted, first, that no party had at any stage of the proceedings mentioned or claimed ownership of a motor Page 24 of 32

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vehicle registered KSP 892R, the Respondent's claim throughout having concerned Motor Vehicle Registration Number KDP 892R, such that the order for release of KSP 892R was erroneous on its face. 92 Secondly, it was submitted that all parties admitted that KDP 892R, and not the non-existent KSP 892R, had already been released to the Respondent on or about 27 th October 2025, months before the Ruling, so that the Ruling erred in directing release both of a non-existent vehicle and of a vehicle already released. 93 Thirdly, it was submitted that the Court erred in treating Icon Auctioneers throughout as an interested party, when it is merely a business name incapable of suing or being sued and, moreover, had never actually been joined as an interested party; it was argued that Icon Auctioneers is not a limited liability company but a business name registered under the Business Names Act with no legal personality, and that the record disclosed no application for and no order effecting its joinder, the Respondent having been unable to point to any date on which such joinder occurred. 94 Fourthly, the Interested Party submitted that the Court similarly erred in issuing orders against Murage Juma & Company Advocates, a firm admitted to be incapable of being sued and never joined to the proceedings. 95 Reliance was placed on Order 1 Rule 10(2) of the Civil Procedure Rules, 2010, for the proposition that a party may only be added or removed from a suit by order of the Page 25 of 32

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Court upon application, and it was submitted that no such order was ever made in respect of either Icon Auctioneers or Murage Juma & Company Advocates. 96 In support of this proposition, reliance was placed on the decision of Mugambi J in Titus Makhanu & Associates Advocates Shield v Alicate Holdings Holding Limited Limited; Southern (Interested Party) [2024] KEHC 1558 (KLR), where the Court held that it could not issue orders against a non-party absent a motion, whether by the Court itself or upon application to join that party, stating: "An examination of Order 1 rule 10(2) reveals that the Court may exercise this power to join a party either on its own motion or upon an application. In the present case, the Court has not moved on its own motion neither has it been moved by any party to have the interested party enjoined to the proceedings." 97 It was submitted that, applying this reasoning, the absence of any application or order joining Icon Auctioneers or Murage Juma & Company Advocates was itself a sufficient reason warranting the setting aside of the Ruling, the issues raised going to the right to a fair hearing as the cornerstone of the justice system. 98 It was further submitted, addressing the Respondent's contention that the aggrieved parties ought properly to have appealed; the Interested Party cited Mbaazi Avenue Residents’ Association & another v Metricon Home Nairobi Company [2026] KESC 30 (KLR), Limited & wherein the 2 others Supreme Court Page 26 of 32

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emphasized that an interested party has no right of appeal. The Interested Party argued that it was inconsistent for the Respondent to treat Icon Auctioneers as an interested party without a right of appeal while simultaneously asserting that it ought to have appealed. 99 On the question of sufficient reason, reliance was placed on Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commmission & 2 others [2013] eKLR, for the principle that " The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day there should be proportionality.” 100 It is the Interested Party’s submission that Rule 33 permits review on account of sufficient reasons, and that such reasons existed cumulatively in the present case, namely: that Icon Auctioneers lacks legal capacity to be sued; that it has never been joined as an interested party; that Murage Juma & Company Advocates similarly lacks legal capacity to be sued; and that the firm was never heard or joined in the proceedings. 101 The Interested Party submitted that it is only through properly joining and suing parties that they can be heard, that this was not done in the present case, and that the Page 27 of 32

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Ruling of 18th March 2026 ought accordingly to be set aside. 1st Respondent’s Submissions 102 On stay of execution and discharge of the contempt findings, the 1st Respondent submitted that the prayers for stay of execution and stay of sentencing were premature and did not meet the cumulative threshold under Order 42 Rule 6(2) of the Civil Procedure Rules, namely proof of substantial loss, absence of unreasonable delay, and provision of security. 103 The 1st Respondent argued, relying on James Wangalwa & Another V Agnes Naliaka Cheseto [2012]eKLR, that substantial loss must be specifically pleaded and proved, not presumed, and that the Applicant had not particularized any loss. 104 The Respondent further submitted that since sentencing had not yet occurred, there was no crystallized order capable of being stayed. It cited Wendano Matuu Co Ltd & 2 others v Joshua Kimeu Kioko & 6 others [2020] eKLR and Muturi v Ndumbi & 3 others [2026] KEELC 523 (KLR) for the proposition that a stay application at the pre-sentencing stage is premature and that jurisdiction to stay a sentence lies with the appellate court. 105 The 1st Respondent also invoked the principle that a contemnor is not entitled to equitable relief as of right, Page 28 of 32

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relying on Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KEHC 1767 (KLR) and Fred Matiang’i the Cabinet Secretary, Ministry of Interior and Coordination of National Government v Miguna Miguna & 4 others [2018] KECA 789 (KLR), the latter affirming that a contemnor may properly be denied audience, including on natural justice grounds, where compliance with court orders has not first been purged. 106 On the alleged denial of fair hearing, the 1st Respondent submitted that the Applicant's framing that requiring formal joinder and personal service as preconditions to contempt liability misstated the law. 107 It submitted that contempt jurisdiction targets any person with knowledge of a subsisting order who acts in disobedience of it, regardless of formal party status, relying on the Canadian Supreme Court decision in Carey v Laiken [2015] 2 SCR 79 for the proposition that liability for contempt arises from knowledge of the order and inconsistent conduct, irrespective of justification. 108 On joinder, reliance was placed on Winnie Muthoni Mburu & 25 others v Nairobi City County & 7 others [2016] eKLR, for the position that persons to be cited for contempt need not necessarily be joined as parties. 109 On service, the 1st Respondent submitted that Kenyan jurisprudence has moved away from strict personal Page 29 of 32

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service in contempt proceedings toward a standard of proven knowledge of the order, citing Basil Criticos v Attorney General & 8 others & 4 others [2012] eKLR for the proposition that knowledge supersedes personal service. 110 It is the 1st Respondent’s submission that the Applicant had not rebutted the delivery reports evidencing email service to Icon Auctioneers' official address, nor demonstrated that Mr Chege lacked authority to receive communication on the Applicant's behalf, and that principles of ostensible/apparent authority in agency law barred the Applicant from disowning Chege's conduct. 111 On the legal capacity of Icon Auctioneers to be held in contempt, the 1st Respondent submitted that the Applicant's argument regarding lack of separate legal personality was misconceived, as the obligation to obey Court orders extends to agents, auctioneers and all persons with knowledge of an order, not merely to formal parties. Reliance was placed on Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, where the Court of Appeal criticized the trend of court orders being treated with contempt by persons and institutions who wrongly consider themselves above the law. 112 The 1st Respondent submitted that the Applicant, as the auctioneer who executed the attachment despite subsisting stay orders of 28 th August 2025 and 24th Page 30 of 32

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September 2025, was directly implicated in the conduct complained of and could not evade contempt liability by hiding behind the business name. 113 On costs, relying on Section 27(1) of the Civil Procedure Act and Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR, the 1st Respondent submitted that costs follow the event to compensate the successful party proceedings, for and the urged trouble that of the defending application, the being misconceived and dilatory, be dismissed with costs. 114 I have examined all the averments and submissions of the parties herein. The applicant seek orders of stay and review of the ruling dated 18 th March 2026. The applicant avers that they are a business name and not capable of suing or being sued under the law. They also aver that they were condemned unheard. 115 I have considered the proceedings of the court leading to the ruling of 18/3/26 and it is indeed true that the orders were granted the applicant auctioneers absence notwithstanding. That was indeed an error on the court’s part. I will review the orders granted in the ruling accordingly and set aside the ruling in its entirety and allow the application to be re-opened and allow its presentation afresh. Costs in the cause. Dated, Signed and Delivered virtually at Nairobi this 22nd Day of September 2026. Page 31 of 32

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HELLEN WASILWA JUDGE Page 32 of 32

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