kemc-2026-00980

2. The plaintiff averred that the plaintiff was the absolute owner of eight cattle valued at Kshs. 635,000/=. That sometime on 30th May 2025 the 1st defendant acting in his capacity as an auctioneer, accompanied by the 2 nd and 3rd defendants together with two unknown police officers unlawfully stormed into the plaintiff’s home, invaded his cattle dip, untied and took away eight (8) cows. That the 2nd defendant equally entered into the plaintiff’s house and in his bedroom, ransacked through his drawer cabinets and made away with Kshs. 8,000/= without the consent and knowledge of the plaintiff. 3. The plaintiff further averred that while taking away the plaintiff’s cattle, the 1st defendant served the plaintiff with an order in Kehancha Civil Case No.E035 of 2023 BENSON NYAHIRI KOHERA V LUCAS GATI NYAMAGONDI which was directing him to execute a decree in that case against the defendant therein. That the actions of the defendants deprived the plaintiff his right to ownership, possession and control of his 8 cattle. 4. The plaintiff through the area chief pleaded with the defendants to return his 8 cattle and money to no avail. That the incident was reported at Kegonga Police Station vide OB NO. 10/30/5/2025 however no action was taken by the police to arrest and charge the defendants, consequently causing the plaintiff to suffer damages. 5. The defendants filed a joint statement of defence dated 2 nd September 2025 denying all the averments contained in the plaint save for expressly admitted. They averred that the plaintiff was hiding and/or storing and/or holding 5 cows that belonged to one LUCAS GATI NYAMANGONDI who had heard that there were warrants of attachment of moveable properties that had been issued against him and hid the 5 cows in the homestead of the plaintiff. That the plaintiff and the area chief are working in cohorts to deny KEHANCHA SPMC CC NO. E033 OF 2025 (JUDGMENT) 2

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the 3rd defendant the fruits of judgment in Kehancha SPMC CC NO. E035 OF 2023 where the area chief one LUCAS GATI NYAMANGONDI is the judgment debtor. The said LUCAS GATI NYANGONDI went and hid his 5 cattle that had already been proclaimed in the homestead of the plaintiff and lied that they belong to the plaintiff so that they cannot be attached and sold. 6. The 1st and 3rd defendants averred that they did do attachment of the area chief’s property one LUCAS GATI NYAMANGONDI as per the court order. They only took away 5 cows belonging to the said LUCAS GATI NYAMANGONDI which had already been proclaimed while in his homestead and had been taken to the homestead of the plaintiff for housekeeping and/or hiding so that they cannot be attached and sold to satisfy the decree of the court. The attachment was thus lawful and the police after doing their investigations found it to be so and they never charged the defendants with any offence in Kenya. 7. That the plaintiff is not entitled to the orders sought. The cattle were sold at Kshs. 109,000/= The Plaintiff’s Case 8. PW1 SAMMY KEMERO NGARIBA adopted his written statement dated 17/7/2025 as his evidence in chief. In the said statement he reiterated the averments contained in the plaint. He added that the execution was not issued against him in person. That he does not own and/or hold any property for or on behalf of the judgment debtor in Kehancha Civil Case No. E035 OF 2023. He also produced the documents in his list of documents dated 17/7/2026 as exhibits 1, 2, 3, 5& 6 respectively. 9. PW2 ESTHER MWITA NG’ARIBA adopted her written statement dated 17/7/2025 as her evidence in chief. In cross examination she said that the KEHANCHA SPMC CC NO. E033 OF 2025 (JUDGMENT) 3

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animals which were paid as dowry were sold before the suit animals were seized. 10.PW3 LUCAS NYANGONDI evidence was that he married the plaintiff daughter on 19/1/2024 and paid dowry in 2023. He paid 5 herds of cattle. He wrote a letter dated 15/6/2025 confirming that 8 cattle were taken. The animals were taken as he had a case with BENSON NYAHIRI KOHERA being Kehancha Civil Case No. E035 OF 2023. He does not know who won the case. The auctioneer came and seized his two cattle, Television and household goods. He was not told why they were taking the items. He did not hide his cattle at the plaintiff’s home. He produced letter dated 15/6/2025 as exhibit-4 11.In cross examination he said he paid dowry on 13/12/2023. That he was present when auctioneers came at his home. They did not photograph his animals. That the defendants’ photographs do not show the animals that were taken from his home. He had only one cow and a calf. The auctioneer did not come on 20/5/2025, but the auctioneer took his cow and its calf. The plaintiff then closed his case. The Defendants Case 12.DW1 DANIEL MOSETI KOHERA adopted his written statement dated 2/9/2025 as his evidence in chief. He said he does not know the plaintiff and has never gone to his home. He does not know why he was sued. He has never attached and sold the plaintiff’s items. He stated that the plaintiff’s suit should be dismissed. In cross examination he said he gave the decree to the auctioneer to execute. 13.DW2 BENSON NYAHIRI KOHERA adopted his written statement dated 2/9/2026 as his evidence in chief. He produced the decree in Kehancha SPMCC E035 OF 2023 as exhibit-D1. KEHANCHA SPMC CC NO. E033 OF 2025 (JUDGMENT) 4

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14.In cross examination he said that they went to the home of the plaintiff with auctioneer and police and took 5 cattle. They showed his wife a photograph of the animals they were looking for. They have a photograph of the animals they proclaimed before they were moved to the homestead of the plaintiff. The auctioneer told the chief not to move the animals proclaimed from his homestead. That a child in the home of the plaintiff showed them the said animals. 15.DW3 OBADIA KERATI adopted his written statement dated 2/9/2025 as his evidence in chief and produced the documents in the list dated 2/9/2025 as exhibits 2-13 respectively. 16.In cross examination he said he followed the law in execution of the Decree in CC E035 OF 2023. He did not give the plaintiff any notice as the animals were not his. They proclaimed and photographed the same, which LUCAS confirmed the same were his. When they went to attach they learnt that Lucas had taken them somewhere else. The defendants then closed their defence case. 17.The parties did not file any submissions despite being given a chance to file the same. Determination The issue for determination is whether the plaintiff is entitled to the reliefs sought 18.The plaintiff claim is based on the fact that the defendants wrongfully and unlawfully seized his cattle and sold the same to satisfy a decree in Kehancha SPMCC NO. E035 OF 2023 yet he was not a party. On the other hand the defendants claimed that the animals were hidden in the homestead of the plaintiff by LUCAS NYAMANGONDI to avoid them being attached and sold. KEHANCHA SPMC CC NO. E033 OF 2025 (JUDGMENT) 5

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19.In this case the defendants produced proclamation notices showing the animals they sold were proclaimed. Rule 14 of the Auctioneers Rules, 1997 prohibits the removal, interference or alienation of any goods comprised in the proclamation. 20..In National Industrial Credit Bank Limited v S.K. Ndegwa Auctioneers (2005) eKLR, the Appellate court held that; “It is clear from the plain reading Rule 12 as read with Rule 14 of the Auctioneers Rules and the contents of the prescribed form, that is, Sale Form 2 that the proclamation of the movable goods is legally and effectively an attachment. From the moment the goods are proclaimed, the judgment-debtor is deprived of the legal possession and physical control of the goods and instead the goods are placed in the custody of the law and the court through the auctioneer. The judgment-debtor can only redeem them by the payment of the debt. If the judgment-debtor fails to pay the auctioneer moves to the second stage of conducting the sale of the attached goods.” 21.This means that once the judgment debtor’s goods are proclaimed they are removed from the control of the judgment debtor and the law prohibits him from removing any item that has been proclaimed. 22.The plaintiff claimed that LUCAS NYAMANGONDI paid the attached and sold animals as dowry. The plaintiff in cross examination said he was paid dowry in the year 2025. He further stated that even if the said animals were photographed in the home of LUCAS they were brought to him as dowry. PW2 in cross examination said that the animals that were seized were in the homestead for three years. That the animals that were paid as dowry were sold before the suit animals were seized. KEHANCHA SPMC CC NO. E033 OF 2025 (JUDGMENT) 6

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23.This evidence contradicts the evidence of the plaintiff who said the animals that were seized were the ones he was paid as a dowry. This clearly shows that one LUCAS GATI NYAMANGONDI removed the proclaimed animals from his homestead and hid the same in the homestead of the plaintiff contrary to Rule 14 of the Auctioneers Rules, in order to avoid them from being attached and sold, however he was not lucky. The defendants produced letter dated 30/7/2025 which confirmed that the cows belonged to LUCAS GATI. The said letter was properly produced as the maker is deceased. 24.In conclusion I find that the plaintiff is not entitled to the reliefs sought in the plaint and dismiss his case with costs to the defendants. Dated, Signed and Delivered in open Court at Kehancha on this 11 th day of September, 2026 virtually via Microsoft Teams. J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kigera/Enock…….Court Assistant Plaintiff………..Present Defendant……..Absent Advocate for Plaintiff……..N/A Advocate for defendants….Mr. Nyangi present KEHANCHA SPMC CC NO. E033 OF 2025 (JUDGMENT) 7

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