kemc-2026-00176

5. On 5th December 2025, Hon. G. Sogomo certified the application urgent and directed that it be heard inter partes on 18th December 2025. 6. Thereafter, on 18th December 2025, this Court issued orders directing the OCS/Deputy OCS Chaani Police Station to provide police security and supervision to Alfajiri Auctioneers to enable them access the respondents' premises and execute distress for rent pursuant to proclamations dated 13th August 2025. The file was thereafter marked closed. 7. The present application was subsequently filed on 27th March 2026 challenging those orders. Applicants' Case 8. The Applicants contend that: a. They were never served with the application dated 2nd December 2025. b. They were never served with proclamation notices. c. They only became aware of the proceedings on 24th March 2026 when the auctioneer allegedly appeared with police oficers and threatened eviction. d. They are not in rent arrears. e. The orders of 18th December 2025 were obtained without their participation and in breach of their right to be heard. f. The orders should therefore be set aside and the Applicants be granted leave to respond to the original application. Respondent's Case 9. The Auctioneer opposes the application and contends that: a. Proclamation notices were served upon the tenants on 12th and 13th August 2025. b. The tenants were aware of the distress proceedings and had even moved the Business Premises Rent Tribunal in BPRT Case No. E259 of 2025 where interim orders were issued restraining removal of proclaimed goods. c. The application dated 2nd December 2025 was duly served on 11th December 2025 by afixing copies thereof on gates and entrances of the various premises after the tenants denied access. Photographs were annexed. d. The Court was satisfied as to service before issuing the orders of 18th December 2025. e. The Applicants are misleading the Court. f. One of the purported applicants, Mannasses Nderitu, subsequently swore an afidavit admitting that he had been served with a proclamation notice, had settled his rent arrears and had not authorized the use of his name in the present application. He further alleged forgery of his signature. Issues for Determination 10. The issues arising for determination are: i. Whether the Applicants were served with the application dated 2nd December 2025. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/176/eng@2026-06-25 2

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ii. Whether suficient grounds have been established for setting aside the orders issued on 18th December 2025. iii. What orders should issue. Analysis Whether Service Was Efiected 11. The orders of 18th December 2025 were not granted on 5th December 2025. Instead, the matter was certified urgent and fixed for inter partes hearing on 18th December 2025. 12. The record contains an afidavit of service sworn by Urbanus Kioko Musyoki indicating that on 11th December 2025 he served the application by afixing copies thereof on the gates of the premises situated at Plot No. 3793/VI/MN, Plot No. 2556/VI/MN, Plot No. 19/5 Chaani and Plot No. 18/23 Chaani after allegedly finding the premises locked and access denied. Photographs of the documents afixed on the premises were annexed. 13. The Court notes that service by afixing is an exceptional mode of service and ordinarily requires demonstration that personal service could not reasonably be efiected. The afidavit of service indicates that the process server found the premises locked and therefore afixed the pleadings on the gates. No application appears to have been made seeking substituted service before resorting to that mode. 14. Nevertheless, the Court cannot ignore the evidence produced by the Auctioneer showing that the tenants were aware of the underlying distress proceedings long before March 2026. 15. Particularly persuasive is the BPRT order issued on 25th August 2025 in Daniel Nyamai & 10 Others v Alfajiri Auctioneers & Another, wherein tenants challenged removal of proclaimed goods from the same premises and obtained interim restraining orders. 16. Equally significant is the afidavit sworn by Mannasses Nderitu wherein he expressly acknowledges having been served with a proclamation notice in August 2025 and having paid the rent arrears thereafter. He further disowns the afidavit filed in support of the present application and alleges forgery of his signature. 17. The Court therefore finds that the assertion that all Applicants were complete strangers to the distress proceedings is not entirely accurate. Whether the Orders of 18th December 2025 Should Be Set Aside 18. The power to set aside ex parte orders is discretionary and exists to prevent injustice or hardship arising from accident, inadvertence or excusable mistake. The discretion is intended to ensure that disputes are determined on merit whenever possible. 19. The orders issued on 18th December 2025 had the efiect of authorizing police-assisted entry into business premises occupied by numerous tenants and execution of distress for rent. Such orders have serious consequences upon property and commercial interests. 20. Although there is evidence that the tenants were aware of the underlying distress proceedings, the Court is not satisfied that all the afiected tenants were afiorded a meaningful opportunity to participate in the application dated 2nd December 2025 before the orders of 18th December 2025 were granted. 21. The Court further notes that the order of 18th December 2025 was obtained in proceedings involving approximately seventy tenants. In the interests of fairness and in keeping with Article 50 of the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/176/eng@2026-06-25 3

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Constitution on the right to be heard, the tenants ought to be afiorded an opportunity to place their responses before the Court. 22. At the same time, the Court cannot ignore the evidence placed before it showing: existence of rent arrears records; issuance of proclamations; prior proceedings before the Business Premises Rent Tribunal; allegations of obstruction and threats to the auctioneer; and admissions by at least one tenant that proclamation notices were served. 23. Accordingly, while the Applicants have demonstrated suficient grounds to reopen the matter for hearing, they have not established a basis for permanently nullifying the distress proceedings at this stage. 24. The proper course is to preserve the status quo and permit an inter partes determination on the merits. Determination 25. Consequently, the Court makes the following orders: i. The Notice of Motion dated 27th March 2026 is partially allowed. ii. 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. iii. The Applicants shall file and serve any further afidavits and documents they wish to rely upon within fourteen (14) days. iv. The Respondent/Auctioneer shall be at liberty to file any supplementary afidavit within fourteen (14) days of service. v. The parties shall thereafter file written submissions on the application. vi. 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. vii. For avoidance of doubt, nothing in this 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 shall be determined upon hearing the parties inter partes. viii. Costs of the application shall abide the outcome of the main application. It is so ordered. DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 25TH JUNE 2026. ……………………….. HON.E.M. MWAMUYE SENIOR RESIDENT MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/176/eng@2026-06-25 4

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