https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9456

Wainaina v Lisimu & 4 others (Small Claims Appeal E239 of 2025) [2026] KEHC 9456 (KLR) (Civ) (30 June 2026) (Ruling) Neutral citation: [2026] KEHC 9456 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Small Claims Appeal E239 of 2025 AC Mrima, J June 30, 2026 Between Esther Gakunga Wainaina Appellant and Samuel Lisimu Respondent and Icon Auctioneers 1st Interested Party National Transport And Safety Authority 2nd Interested Party Florir Access Capital Limited 3rd Interested Party and Stephen Mbugua Intended Interested Party Ruling Background: 1.The dispute before this Court emanates from the proceedings in Nairobi [Milimani] Small Claims Court Commercial Case No. E 13572 of 2025 [hereinafter referred to as “the suit”]. Briefly, on 16th April 2025, a default judgment was entered against the Applicant/Appellant, Esther Gakunga Wainaina. Subsequently, the Respondent, Samuel Lisimu, commenced execution proceedings to recover the decretal sum. The 1st Interested Party, Icon Auctioneers, proclaimed and attached the Applicant’s motor vehicle, registration number KCE 289C, a Nissan Station Wagon [hereinafter referred to as ‘the Motor Vehicle’). A Notice to Show Cause was subsequently issued against the Applicant on 27th August 2025 and the motor vehicle was eventually sold to Stephen Mbugua, the 4th Intended Interested Party herein. 2.The foregoing events precipitated the filing of five applications. A look at the respective applications hereby follows.(a)The Notice of Motion dated 16th September 2025: 3.This application was filed by the Applicant. She anchored it on Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A and 1B of the Civil Procedure Act and sought the following orders: -1.Spent.2.The Honourable Court be pleased to issue a temporary order of Stay of Execution of the orders/Judgement or Decree issued in respect to the judgment entered in the SCCCOMM Case No. 13572 of 2025 at Milimani Small Claims Court and the 1st Interested Party namely; ICON AUCTIONEERS be ordered not to proceed with the intended sale/auction or dealing in any way or forced transfer of Motor Vehicle registration number: KCE 289C Make and Model of Nissan Station Wagon that was recovered by the 1st Interested Party and the 2nd Interested Party to register a caveat/restriction on any transaction on the said Motor Vehicle and the Motor Vehicle be released to the 3rd Interested Party who is the financier and co - owner of the said Motor Vehicle so as to preserve it and for safe custody pending hearing and determination of this Application inter-partes.3.That this Honourable Court be pleased to grant leave to the Applicant to lodge her Appeal out of time for the reasons recorded hereunder and recorded in the sworn Affidavit pending hearing and determination of this Application.4.That the Appellant/Applicant is ready and willing to pay the throw away cost if any and she is also willing and ready to abide by this Honourable Court’s directions or conditions that shall be set thereto.5.That the Honourable court to set aside the judgement delivered in the Small Claims Court at Milimani in SCCOMM Case Number E13572 of 2025 and; or issue any other appropriate Order(s), Relief or Declaration that it may deem fit and just to safeguard the applicant’s rights and basic fundamental freedoms as enshrined in the Constitution of Kenya 2010. 4.In the supporting Affidavit of Esther Gakunga Wainaina, sworn on the 16th September 2025, it was her case that her right to a fair hearing was violated since she was never served with the statement of claim or the Mention Notice thus precluding her from participation in the trial Court’s proceedings. She asserted that the Respondent had swiftly moved to execute the decree to her detriment, resulting in the recovery of her motor vehicle by the 1st Interested Party. She contended that the attached motor vehicle is co-owned by the 3rd Interested Party, Florir Access Capital Limited, who financed its acquisition. She stated further that she is still servicing the loan facility for which the vehicle acts as collateral. She pointed out that she stood to suffer double jeopardy by losing the vehicle to the auctioneer while remaining legally obligated to repay the financier. 5.Further, she alleged that the Respondent had initiated a forced transfer of the vehicle through the 2nd Interested Party, National Transportation and Safety Authority, prompting the 3rd Interested Party to formally apply for the registration of a caveat on the 16th September 2025 to protect its proprietary interests. She invoked the protection of property rights under Article 40 of the Constitution to argue that neither she nor the financier should arbitrarily lose their asset without a fair hearing. 6.Lastly, the Applicant affirmed her readiness to abide by any conditions the Court may impose, including the payment of throw-away costs, maintaining that unless the stay is granted urgently, her appeal will be rendered nugatory, and she will suffer irreparable loss and damage. The submissions: 7.The Applicant filed written submissions dated 26th November 2025. In challenging the legitimacy of the auction and the 4th Interested Party’s claim of being an innocent purchaser, she posited that legal ownership of the vehicle remained vested in the financier until the loan was fully settled, as stipulated by Section 2 and Section 8(1)(e) of the Hire-Purchase Act CAP 507. To buttress the position, she sought guidance from the case of Eunice Kanugu Kingori -vs- NIC Bank Limited [2018] eKLR. where it was observed;… The hirer has an option to buy the goods at the end of the Agreement if all instalments are being paid. However, it is not a contract of sale but contract of bailment as the hirer merely has an option to buy the goods and although the hirer has the right of using the goods, he is not the legal owner during the term of the agreement, the ownership of the goods remain with the owner. 8.It was her case that the intended 4th Interested Party failed to conduct basic due diligence and as such, had approached the Court with unclean hands. She argued that the Intended 4th Interested Party acted in active contempt of the Court’s prior interim orders issued on 6th October 2025 by maliciously disabling the vehicle’s tracking device and concealing the asset, thereby frustrating efforts to surrender the vehicle to the 3rd Interested Party for preservation. 9.The Appellant maintained that admitting the 4th Interested Party to the proceedings or granting the orders sought would condone blatant illegalities, aid an indolent party, and gravely prejudice both her and the 3rd Interested Party. 10.Ultimately, the Appellant averred that the 1st Interested Party lacked the requisite legal authority to attach and sell a jointly registered security that did not legally belong to the judgment debtor. She prayed that the Intended 4th Interested Party’s application be dismissed in its entirety with costs. Additionally, she urged the Court to compel the Intended 4th Interested Party to fully comply with the orders of 6th October 2025 by immediately surrendering the subject motor vehicle to the 3rd Interested Party for safe custody pending the final determination of the appeal. The Notice of Motion dated 21st October 2025: 11.This application was in response to the Notice of Motion dated 16th September 2025. It was filed by the Respondent, Samuel Lisimu. He sought to review and set aside the ex-parte orders issued by this Court on 6th October 2025 on account of gross material non-disclosure, deceit, and breach of the right to a fair hearing as enshrined in Article 50 of the Constitution. He sought the following orders:1.Spent2.That pending the hearing and determination of this application inter-party, the Honourable Court be pleased to grant an order of interim stay of execution of its ruling/orders delivered on 6th October 2025;3.That pending the hearing and determination of this application, the Honourable Court be pleased to grant an order of interim stay of execution of its Ruling/Orders delivered on 6th October 2025;4.That the Honourable court be pleased to REVIEW its Ruling/Orders dated 6th October 2025 and reinstate the application dated 16th September 2025 for hearing & determination while taking into full consideration the Respondent and Interested Party’s evidence;5.That in the alternative to (d), this Honourable Court be pleased to set aside the orders irregularly obtained on 6th October 2025;6.That the court do supply the Respondent/Applicant with court virtual records and transcripts/proceedings of 6th October 2025;7.That this Honourable Court be pleased to join Stephen Mbugua and issue a vesting order in his favour in relation to Motor Vehicle registration KCE 289C Make and Model of Nissan Station Wagon;8.That this court be pleased to issue such other or further orders as may be necessary for the ends of justice to be met; and9.That the costs of this Application be provided for. 12.The application was supported by the Affidavit of Samuel Lisimu, the deposed on a similar date. He provided a comprehensive chronological account of the events to demonstrate the Appellant’s alleged deceit and the lawfulness of the execution process. It was his case that despite the Appellant filing the suit on 16th September 2025, he and the 1st Interested Party were only served on 16th October 2025. He claimed that the delayed service occurred only after the Appellant had secured ex-parte orders, in disobedience of the Court’s directive to serve the parties. 13.Further to the foregoing, he asserted that the Appellant was properly served with trial Court pleadings on 31st January 2025 and 17th February 2025, which were acknowledged by her Advocate on 20th February 2025. He deposed that due to her failure to enter an appearance or file a response, a default judgment was entered against her on 16th April 2025. It was his case that a subsequent Notice of Entry of Judgment was served on 23rd April 2025, yet no application to set aside the judgment was ever filed. 14.Speaking to the lawfulness of the execution, he deposed that he engaged the 1st Interested Party to proclaim the Appellant’s goods. The motor vehicle was proclaimed, and at that time, it was entirely free from any registered encumbrances. He confirmed that the 3rd Interested Party, Florir Access Capital Limited, was merely an unsecured third party which, in good faith, they were served with a letter of no objection on 13th June 2025 via the official company contact of its director, Leonard Gitari, but failed to respond. Pursuant to the foregoing, he stated that in the absence of an objection, the vehicle was sold via public auction on 14th June 2025 to a bona fide purchaser, Stephen Mbugua, for Kshs. 450,000/= which sale legally extinguished the Appellant’s interest in the vehicle pursuant to the Auctioneers Act and Rules. 15.He contended that because the auction proceeds did not fully satisfy the decretal sum, he sought and served a Notice to Show Cause on 27th August 2025. He deposed that on 18th September 2025, the Appellant’s Advocates appeared in Court requesting for time to negotiate a payment plan, but subsequently failed to attend Court on 6th October 2025, leading to the issuance of warrants for the Appellant’s arrest. 16.He highlighted that the Appellant maliciously registered a charge in favour of Leonard Gitari on the Movable Property Security Rights Registry on 16th September 2025, a period of three months after she had already lost all legal interest in the property. 17.In conclusion, it was his case that the Appellant was indolent, fully aware of the ongoing legal processes, having engaged Advocates and even made partial cash deposits toward the decretal sum. He maintained that allowing the ex-parte orders of 6th October 2025 to stand would perpetuate an injustice borne out of deceit and irregular procedure. The Notice of Motion dated 23rd October 2025: 18.Stephen Mbugua Chira lodged the instant application pursuant to Order 1 Rule 10(2), Sections 1A, 1B, and 3A of the Civil Procedure Rules 2010, and Articles 48, 50, and 159 of the Constitution of Kenya. He sought the following orders: -1.That Stephen Mbugua Chira, the lawful purchaser of motor vehicle registration number KCE 289C Nissan be joined in these proceedings as an Interested Party.2.That upon joinder, the interested party be granted leave to file pleading and so other documents as may be necessary for the protection of his legal interest in the subject matter of this suit.3.That pending the hearing and determination of this application, the Appellant/3rd Interested Party and its agents or servants be restrained from disposing, transferring, or other dealing with motor vehicle registration number KCE 289C in a manner adverse to the rights of the said Stephen Mbugua Chira the Intended 4th Interested Party.4.That the costs of this application be provided for. 19.The Applicant premised his case on the grounds that he lawfully purchased the motor vehicle in question, at a public auction conducted by Icon Auctioneers on the 14th June 2025. He contended that following the payment of the full purchase price, he was issued a Certificate of Sale in accordance with the Auctioneers Act and applicable rules. However, the 3rd Interested Party, Florir Access Capital Ltd, placed a caveat with the National Transport and Safety Authority which has frustrated the transfer and registration of the vehicle into his name. 20.The Applicant contended that the Appellant’s claim, which has suddenly arisen several months after the auction sale, threatens to unjustly deprive him of a lawfully acquired interest. Consequently, he asserted that his participation is of utmost necessity to allow the Court to effectually and completely adjudicate all questions arising in the suit. In his supporting affidavit, the 4th Interested Party deposed that the auction was duly advertised in a local newspaper to ensure transparency and fairness. It was his case that the 3rd Interested Party ought to have instituted objection proceedings under Order 22 Rule 51(1) of the Civil Procedure Rules had it possessed any legal or equitable interest in the subject matter. 21.He deposed that he remitted the full purchase price of Kshs 450,000/- and was subsequently issued a valid Certificate of Sale dated 14th June 2025. It was his case that following the transaction, he took continuous possession of the motor vehicle without any contention or interference, undertaking various mechanical repairs, including panel beating and wiring, which amounted to Kshs 90,000/-. He asserted his status as a bona fide purchaser for value without notice of any prior encumbrances. The Submissions: 22.The intended 4th Interested Party filed written submissions dated 24th November 2025. He largely reiterated his depositions regarding his title to the Motor Vehicle. He argued that the Certificate of Sale he was issued with served as conclusive statutory evidence under the Auctioneers Act that he acquired the property free of all prior encumbrances. To underscore the finality of public auctions and the protection of innocent buyers, he relied on Kiiru -vs- Samuel Karanja & Another [1986] and National Bank of Kenya -vs- Pipe Plastice Samkolit (K) Ltd & Another [2001], which established that once an auction sale is completed and a certificate is issued, prior equities are entirely extinguished unless clear procedural fraud is demonstrated. 23.He further pointed to the authority in David Gitome Kuhiguka -vs- Equity Bank Ltd [2013] eKLR and Captain Patrick R. Kinyua -vs- Barclays Bank of Kenya Ltd & Another [2014] eKLR to emphasize that an auction purchaser obtains an indefeasible title and is not required to audit the internal disputes between a borrower and a lender before bidding. 24.From the foregoing, the 4th intended Interested party characterized the 3rd Interested Party’s intervention as a legally unsustainable afterthought attempt to overturn a finalized sale without proving any inherent irregularity in the auction process itself. The Notice of Motion dated 3rd October 2025: 25.Through this application, the Applicant, Esther Gakunga Wainaina, on the basis of Articles 27(1), 40, 159, and 165 of the Constitution, alongside the provisions of the Contempt of Court Act No. 46 of 2016, sought the following reliefs;1.Spent.2.That this Application is seeking this Honourable Court’s directions on the orders/directives issued on 6th day of October 2025.3.That the Respondent and the 1st Interested Party be cited for contempt of court as they have refused to surrender the subject Motor Vehicle registration number: KCE 289C Make and Model of Nissan Station Wagon to the 3rd Interested Party as was ordered by this Honourable Court on the 6th day of October 2025 and the Respondent and the 1st Interested Party have since disabled the said Motor Vehicle’s tracking system and they are hiding the said Motor Vehicle in an unknown location.4.That the Respondent and the Director(s) of the 1st Interested Party be committed to civil jail term and a fine/penalty of at least Kshs.500,000.00/- for disobedience of this court’s orders and being in blatant violations of the Applicant’s/the 3rd Interested Party’s Constitutional right to property contrary to Article 40 of the Constitution of Kenya 2010.5.That The Honourable Court to issue any other appropriate order, declaration or relief that it may deem fit and just. 26.In her supporting affidavit, the Appellant deposed that the Court issued an order on 6th October 2025 directing the Respondent and the 1st Interested Party to surrender the motor vehicle to the 3rd Interested Party for preservation. She asserted that the parties refused to surrender the vehicle. It was her case that the Respondent and the 1st Interested Party subsequently disabled the motor vehicle’s tracking system and were actively hiding it in an undisclosed location an action that amounts to the punishable criminal act of motor vehicle theft. 27.On the question of contempt of court, it was her case that court orders are not issued in vain and that the court has the inherent power to protect its dignity and punish those in contempt. It was her case that her fundamental rights and freedoms stand to be violated if the requested orders are not granted. The Notice of Motion dated 6th November 2025: 28.Florir Access Capital Ltd, the 3rd Interested Party herein, filed the application dated anchoring it on Sections 1A, 1B, 3A and 63 (e) of the Civil Procedure Act, Order 22 Rule 51, and Order 51 Rule 1 of the Civil Procedure Rules. It sought the following orders.1.Spent.2.That pending hearing and determination of this application inter partes, the Respondent,1st and 4th Interested Parties be ordered to produce the Motor Vehicle Registration No. KCE 289C.3.There be stay of further execution restraining the Respondent,1st 2nd and 4th Interested Parties their agents or any other person acting on their behalf/instructions from transferring, surrendering and/or parting with possession or in any other manner dealing with the Motor Vehicle Registration No. KCE 289C pending the hearing and determination of this Application inter partes.4.This Honourable court be pleased to issue an order declaring the attachment of Motor Vehicle Registration No. KCE289C improper, irregular and against the 3rd Interested Party’s/Objector rights under the Moveable Property Security Rights Act, 2017.5.This Honourable court be pleased to issue an order setting aside the attachment and subsequent sale of Motor Vehicle Registration No. KCE 289C through the public Auction held on 14th June 2025 and to direct the immediate unconditional release of the motor vehicle to the 3rd Interested Party/Objector.6.The costs of this Application and Auctioneers costs (if any) be borne by the Respondent, Appellant 1st and 4th Interested Parties. 29.The application was supported by the Affidavit of Leonard Murangiri Gitari, a Director of the 3rd Interested Party sworn on 6th November 2025. He averred that on 17th February 2025, the Appellant applied for a loan facility of Kshs. 580,000/-, which was secured by the Motor Vehicle. Consequently, the vehicle was registered jointly in the names of the Appellant and the 3rd Interested Party. 30.It was his case that the loan facility was performing well until September 2025, when the 3rd Interested Party received a notification from the National Transport and Safety Authority indicating an attempted transfer of the motor vehicle’s ownership. It was then discovered that the Respondent, acting through Icon Auctioneers had illegally and irregularly sold the motor vehicle at a public auction on 14th June 2025. 31.He maintained that the auction was conducted without any service of court documents or notice to the 3rd Interested Party, despite the Respondent and his agents having full knowledge of the joint ownership. He further attacked the veracity of a purported “letter of no objection” dated 13th June 2025, asserting that it was a ploy designed to unlawfully deprive the Applicant of the vehicle. It was his position that the email address used in the correspondence by the 1st Interested Party did not belong to the 3rd Interested Party. 32.In addition to the foregoing, he deposed that the Respondent and the 1st Interested Party have flagrantly disobeyed prior court orders issued on 16th October 2025 requiring the production of the subject motor vehicle. He concluded by stating that the loan account is currently in arrears and that unless the orders setting aside the auction and preventing further execution are granted, the 3rd Interested Party stood to suffer irreparable harm as it will lose its only security for the outstanding debt. The Submissions 33.In its submissions dated 24th November 2025, the 3rd Interested Party challenged the irregular attachment and public auction of the Motor Vehicle over which it held a joint registration and security interest. 34.It argued that it was never afforded proper statutory notice before the auction occurred on 14th June 2025, having only allegedly received a no objection notice via a WhatsApp message to a director and an incorrect email address on the day prior. 35.Relying on the foundational corporate law principles established in Salomon -vs- Salomon & Co (1897) and Kolaba Enterprises Ltd -vs- Shamshudin Hussein Varvani & another [2015] eKLR it emphasized that an incorporated company is a distinct legal entity from its directors and as such, serving a director via WhatsApp did not constitute valid legal service on the company. Based on the foregoing, it was its case that the service was defective. It relied on the case of Roy Parcel Services Limited -vs- Boniface Shibutse Shibunyanga [2020] eKLR, to front the position that the failure to serve rendered all subsequent proceedings and the auction invalid. 36.Further, it was its case that the execution process failed to provide the mandatory seven-day redemption notice outlined in the Auctioneers Rules, a strict requirement highlighted in Andrew Muriuki Wanjohi -vs- Equity Building Society Ltd & 2 others [2006] eKLR. Ultimately, the 3rd Interested Party submitted that the procedural breaches rendered the entire auction process an incurable nullity that must be automatically set aside, a position affirmed in the case of Macfoy -vs- United Africa Co Ltd (1961) and African Merchant Assurance Co. Ltd -vs- Hezron Getuma Onsongo [2019] eKLR. The Respondent’s and 1st Interested Party’s case: 37.The Respondent and the 1st Interested Party filed Grounds of Opposition dated 20th November 2025 in opposition to the Notice of Motion dated 16th September 2025. They argued that the Appellant was fully aware of the execution proceedings against her, as evidenced by her prior appearance in the Small Claims Court case and her partial payment of the decretal sum. They asserted that the Appellant’s solely owned motor vehicle, was lawfully auctioned to the highest bidder on 14th June 2025, to partially satisfy the decree and that she was properly notified of the auction but failed to appear. 38.The Respondent and the 1st interested Party contested the position of the 3rd Interested Party, Florir Access Capital Limited. They argued that the 3rd Interested Party was merely an unsecured creditor with no better rights to the vehicle than him because it failed to perfect its security under Section 15 of the Movable Property Security Rights Act. Additionally, it was their position that a security was registered in September 2025 by an individual named Leonard Gitari, not the corporate entity and as such, guided by the principle of separate corporate personality, the 3rd Interested Party’s claim to a secured right is misguided. 39.Finally, the Respondent and 1st Interested Party contended that the Appellant is entirely responsible for her situation, having taken out dual loan facilities with both the Respondent and the 3rd Interested Party and defaulting on both sets of repayment terms. They requested for a dismissal of the application with costs. 40.The Respondent further opposed the 3rd Interested Party’s Notice of Motion dated 6th November 2025 through his Replying Affidavit deposed on 12th November 2025. He averred that the 3rd Interested Party’s application is actuated by bad faith and constituted an afterthought. It was his case that the Applicant is guilty of laches having slept on its rights. He deposed that while the 3rd Interested Party claimed a security agreement over the Motor Vehicle with the Appellant, it failed to register the said interest under the Movable Property Security Act. To that end, he relied on the Registry Search, annexed as SL-2, which indicates that a security was instead registered by one Leonard Gitari on the 16th September 2025, a party who he asserted is not privy to the alleged security agreement. 41.It was further his case that the 3rd Interested Party was duly notified of the execution process. He referred to the letter dated the 13th June 2025, annexed as SL-3(a), where the 1st Interested Party informed the 3rd Interested Party that the subject motor vehicle was proclaimed in satisfaction of a court decree in the Respondent’s favour. It was his case that the correspondence was served upon the 3rd Interested Party’s Director via WhatsApp, as demonstrated by the evidence of service annexed as SL-3(b), alongside the company’s CR-12 annexed as SL-3(c). 42.He deposed that despite possessing knowledge of the impending auction, the 3rd Interested Party raised no objection to the subsequent sale of the vehicle to the intended 4th Interested Party. 43.It is the Respondent’s contention that the failure to register the security interest pursuant to the Movable Property Security Act reduced the 3rd Interested Party to the status of an unsecured creditor. He asserted that merely informing the 2nd Interested Party, the National Transport and Safety Authority did not equate to statutory registration. He emphasized that the NTSA documentation lists the Appellant, Esther Gakunga Wainaina, as the sole owner of the vehicle. 44.Finally, he asserted that the Appellant was cognizant of the lower court proceedings, engaged legal representation to pursue an out-of-court settlement, and remitted a portion of the undisputed decretal sum prior to the proclamation. He maintained that lawful execution procedures were strictly adhered to. He clarified that the motor vehicle is presently in the possession of the 1st Interested Party pursuant to the public auction, not in the Respondent’s possession. He highlighted that the Appellant had defaulted on loan obligations to both him and the 3rd Interested Party, and must advise the Court on her intentions to settle both debts. The submissions 45.The Respondent and the 1st Interested Party filed joint submissions dated 2nd December 2025. Addressing the Appellant’s indebtedness, they emphasized that the Appellant had already made sworn admissions acknowledging the debt. To underline the legal binding nature of the acknowledgment, they relied on the case of Republic -vs- Ahmad Abolfathi Mohammed & Another [2019] eKLR, which distinguished between a confession and an admission. It was their case that an admission can operate as an estoppel. 46.In urging the Court to strike out the application on contempt of Court, the Respondent argued that it is legally incompetent as it is premised on the Contempt of Court Act, which was declared unconstitutional in Kenya Human Rights Commission -vs- Attorney General & another (2018) eKLR. 47.They further challenged the 3rd Interested Party’s locus standi to bring the contempt application, based on the constitutional capacity considerations outlined in Mumo Matemu -vs- Trusted Society of Human Rights Alliances & 5 Others (2014) eKLR. It was their case that the foundational requirements for contempt were not satisfied because they were never personally served with any court orders, a mandatory procedural step established in Nyamongo and Anor -vs- Kenya Posts and Telecommunications Corporation [1994] eKLR. Moreover, they asserted that wilful disobedience was not proven beyond a reasonable doubt. They drew support from the precedents set in Titus Munyoki Nzioki v John Kimathi Maingi & another [2013] eKLR and John Mbugua Kimari -vs- John Njoroge Kimari [2014] eKLR. 48.In conclusion, the Respondent and 1st Interested Party prayed for the dismissal of the applications with costs. The Appellant’s Response to the Notice of Motion dated 21st October 2025: 49.Through the Replying Affidavit sworn on 3rd November 2025, the Appellant vehemently opposed the Respondent’s application. She pointed out that Motor Vehicle was jointly registered in her name and her financier, Florir Access Capital, in March 2025. She argued that the 4th Intended Interested Party could not claim the protections of an innocent purchaser because a basic due diligence search at the NTSA would have immediately revealed the financier’s interest and halted the purchase. 50.She accused the Respondent, the 1st Interested Party, and the 4th intended Interested Party of orchestrating a fraudulent transfer by colluding to disable the vehicle’s tracking system and hide the asset. It was her case that the vehicle was never the subject matter of the Small Claims Court judgment that sparked the execution and as such, the Respondent had absolutely no legal authority to sell an asset encumbered by an undischarged financier. Analysis: 51.Having carefully perused the respective parties’ pleadings, affidavits, and submissions, the following consolidated issues arise for determination: -a.Whether the appellate jurisdiction of this Court was properly invoked.b.Depending on [a] above, whether leave be granted to the Appellant to appeal out of time.c.Whether the interim stay orders issued on 6th October 2025 be reviewed and set aside; or be affirmed.d.Whether the attachment and sale of the motor vehicle violated the 3rd Interested Party’s rights.e.Whether the Respondent and 1st Interested Party are in contempt of the Court orders issued on 6th October 2025.f.Whether the intended 4th Interested Party should be joined to these proceedings. 52.A consideration of the above issues now follows. Whether the appellate jurisdiction of this Curt was properly invoked: 53.The substantive matter before this Court is an ‘appeal’ against the whole of the decision in the suit delivered on 16th April 2025. The Appellant instituted this ‘appeal’ through the filing of a Memorandum of Appeal dated 16th September 2025 which was filed on the 17th September 2025. Contemporaneously with the filing of the ‘appeal’ was the filing of the Notice of Motion dated 16th September 2025. Thereafter, the rest of the applications followed. 54.As the decision appealed against was rendered on 16th April 2025 and the ‘appeal’ filed on 17th September 2025, the Appellant sought to regularize that position via prayer 3 of the Notice of Motion dated 16th September 2025, and in the following manner: -3.That this Honourable Court be pleased to grant leave to the Applicant to lodge her appeal out of time for the reasons recorded hereunder and recorded in the sworn Affidavit pending hearing and determination of this Application. 55.It is the foregoing state of affairs that drew this Court’s attention to interrogate whether its appellate jurisdiction was properly invoked. The reason behind this is that a Court must always be satisfied that it has the requisite jurisdiction in a matter otherwise it acts in vain. [See the Supreme Court Petition No. 7 of 2013 Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, [2014] eKLR; Samuel Kamau Macharia and Another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR; the Court of Appeal in Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1; among others]. 56.The manner in which Courts are to be moved in instances where parties seek to lodge appeals out of time was well settled by the Supreme Court in County Executive of Kisumu v County Government of Kisumu & 8 others (Civil Application 3 of 2016) [2017] KESC 16 (KLR) (Civ) (12 April 2017) (Ruling). The Apex Court rendered itself in paragraph 35 thus: -(35)We are in total agreement with the respondent that an appeal filed in this Court out of time without leave of this Court is irregular and this Court will not invoke such ‘novel’ principles as urged by applicant so as to validate that petition and deem it as properly filed. We buttress this Court’s position in Nicholas Salat when this Court stated thus:…In his submissions, counsel for the applicant acknowledged having already filed his appeal. He now prays for extension of time and urges that once so granted, the Petition of appeal already filed be deemed to have been duly filed.What we hear the applicant telling the Court is that he is acknowledging having filed a ‘document’ he calls ‘an appeal’ out of time without leave of the Court. Pursuant to rule 33(1) of the Court’s Rules, it is mandatory that an appeal can only be filed within 30 days of filing the notice of appeal. Under rule 53 of the Court’s Rules, this Court can indeed extend time. However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires.By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the Court cannot do.To file an appeal out of time and seek the Court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the Court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this Court will not accept a document filed out of time without leave of the Court. It is unfortunate that Petition No. 10 of 2014 has been accorded a reference number in this Court’s Registry. This is irregular as that document is unknown in law and the same should be struck out. Where one intends to file an appeal out of time and seeks extension of time, the least (sic) he can do is to annex the draft intended petition of appeal for the Court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it. Petition No. 10 of 2014 having been filed out of time and without leave (an order of this Court extending time), is expunged from the Court’s Record.” 57.In this matter, the decision appealed against was delivered on 16th April 2025. Section 38 of the Small Claims Court Act, accords the High Court the jurisdiction to hear appeals from the Small Claims Court. The legal regime on such appeals is the Civil Procedure Act and the Civil Procedure Rules made thereunder. 58.Section 79G of the Civil Procedure Act provides as follows: -79G.Time for filing appeals from subordinate courtsEvery appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. 59.Therefore, the Appellant had thirty days to lodge her appeal from the 16th April 2025, that is up to the 15th May 2025. The ‘appeal’ was filed sometimes in 17th September 2025, well outside the appeal window. As stated, the filing of the ‘appeal’ was without the leave of this Court and the Appellant now seeks to align with the law. 60.The decisions of the Supreme Court are binding upon all other Courts save the Supreme Court itself. That is the plain textual reading of Article 163[7] of the Constituion. In that case, therefore, this Court has no option, but to apply the law as established by the Apex Court. As such, the jurisdiction of this Court was improperly invoked and the Court lacks jurisdiction to entertain this matter further. The Court downs its tools. 61.On the basis of the foregoing finding, the rest of the issues fall by the wayside since this Court lacks the competency to entertain any of them. 62.Consequently, the following final orders hereby issue: -(a)The High Court Civil Small Claims Appeal No. E239 of 2025 is hereby struck out.(b)For clarity, all the applications in the appeal hereby stand struck out as well.(c)The interim orders issued on 6th October 2025 and/or any other others so issued herein are hereby discharged and/or set aside accordingly.(d)Esther Gakunga Wainaina, ‘the Appellant’ shall bear the costs of the ‘appeal’ and the applications.(e)This file is hereby marked as closed.Orders accordingly DELIVERED, DATED AND SIGNED AT NAIROBI THIS 30TH DAY OF JUNE, 2026.A. C. MRIMAJUDGERuling virtually delivered in the presence of:Mr. Mackenzie, Learned Counsel for Respondent and 1st Interested Party.Michael/Amina – Court Assistants.