https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7762

Onyango v Auctioneers & another; Auctioneers (Interested Party) (Miscellaneous Civil Application E024 of 2025) [2026] KEHC 7762 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7762 (KLR) Republic of Kenya In the High Court at Kisumu Miscellaneous Civil Application E024 of 2025 JM Omido, J May 28, 2026 Between Florence Akinyi Onyango Applicant and Jared Bon Ombati t/a Hazara Auctioneers 1st Respondent MM (Minor Suing Thro’ Next Friend and Mother JAO) 2nd Respondent and Hazara Auctioneers Interested Party Ruling A. The Notice of Motion Dated 9th March, 2025. 1.The Applicant herein Florence Akinyi Onyango filed the notice of motion dated 9th March, 2025, presented under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, Article 159(2)(d) of the Constitution and all other enabling provisions the law, seeking the following orders;a.That this application be certified urgent, service be dispensed with thereof and the same be heard ex parte in the first instance.b.That this Honourable court be pleased to give an order citing Hazara Auctioneers and the Respondent herein, are in contempt (sic) by their disobedience of the court's order of 24th February, 2025.c.That the sale of the Applicant’s Motor vehicle Registration No. KBD xxxL be declared a nullity as it is contrary to the provisions of the law, as there was an existing stay of execution order against the decretal amount.d.That pending the hearing and determination of this application inter-parties and pending further orders of the court, this Honourable court be pleased to cancel the sale of the Motor vehicle Registration No. KBD xxxL.e.That pending the hearing and determination of this application inter-parties and pending further orders of the court, this Honourable court be pleased to stop any transfer of ownership of the Motor vehicle Registration No. KBD xxxL.f.That this Honourable Court be pleased to order that the Applicant’s motor vehicle registration number KBD xxxL as was attached and sold by M/S Hazara Auctioneers be restituted to the applicant forthwith pending the hearing and determination of this Application and pending further orders of the court.g.That in the alternative to prayers above the court imposes a fine on Hazara Auctioneers and the Respondent herein of Ksh.300,000/- and/or any other punishment permitted under the law until he (sic) purges his contempt by restituting the Applicant’s motor vehicle registration number KBD xxxL.h.That this Honourable Court be pleased to order that the decretal amount already paid to the Respondent’s Advocate be deemed to be final and/or full settlement of the claim/suit.i.That this court be pleased to consolidate this application with the sister files applications in Kisumu Civil Appeal No. 5 of 2025 which is scheduled for hearing on the 12th March, 2025, Kisumu HCC Misc. Application No. 25 of 2025 and Kisumu HCC Misc Application No. 26 of 2025 as the matters refer to the same motor vehicle and are seeking the same orders.j.That the costs of this Application be borne by the Auctioneer. 2.The wording of the prayers above shows that prayers (a), (d), (e) and (f) were sought pending the hearing and determination of the motion. As such, those prayers have already been spent and are therefore not available for determination in this ruling. 3.The grounds upon which the application is premised are set out on its face and may be summarised as follows: 4.The Applicant states that judgement in Kisumu Small Claims Case No. 400 of 2024 was delivered on 10th December, 2024 in the sum of Ksh.180,000/- together with costs assessed at Ksh.50,593/-, and that the trial court granted a 30-day stay of execution. 5.It is contended that while parties were still engaged in negotiations towards an out-of-court settlement, the Respondent instructed the Interested Party – Hazara Auctioneers – who proceeded to take out warrants of attachment and issued a proclamation and subsequently attached motor vehicle registration number KBD xxxL belonging to the Applicant. 6.The Applicant further avers that the said auctioneers proceeded to advertise the said motor vehicle for sale by public auction scheduled for 25th February, 2025. 7.The Applicant further avers that being dissatisfied with the judgement, she instructed Counsel to file an application seeking leave to appeal out of time and for stay of execution pending appeal. According to the Applicant, the said application dated 18th February, 2025 was heard ex parte and interim orders were issued by this court on 24th February, 2025, granting stay of execution on condition that the Applicant deposits the sum of Ksh.230,593/- in court within fourteen (14) days. 8.The Applicant contends that the said orders were duly served upon the Respondent’s advocates and the Interested Party through their official email addresses on the same day. 9.It is further the Applicant’s case that pursuant to the said orders, she settled the decretal sum within the stipulated period, having paid the same on 26th February 2025. However, despite being aware of the subsisting court orders, the Respondent and the Interested Party proceeded with the sale of the attached motor vehicle by public auction on 25th February, 2025. 10.The Applicant avers that she only became aware of the said sale on 6th March, 2025 upon being informed by her advocate on record. The Applicant therefore contends that the actions of the Respondent and the Interested Party were in blatant disregard of the court orders and amounted to contempt of court. 11.The Applicant further contends that she continues to suffer loss and damage as a result of the attachment and sale of motor vehicle registration number KBD xxxL and urges the court to order restitution of the said motor vehicle pending the hearing and determination of the application. 12.The Applicant also seeks that the Respondent and the Interested Party be cited and punished for contempt of court and prays that the application be allowed in the interests of justice. B. The Applicant’s Affidavit. 13.The motion is supported by the Applicant’s sworn on 9th March, 2025., 2025 and the annextures thereto. 14.In her affidavit, the Applicant reiterates that judgement in Kisumu Small Claims Case No. 400 of 2024 was delivered on 10th December 2024 in the sum of Ksh.180,000/- together with costs assessed at Ksh.50,593/- and that the trial court granted a thirty (30) day stay of execution. She avers that being dissatisfied with the award on quantum, she instructed her advocates through her insurer, Directline Assurance Company Limited, to lodge an appeal against the said judgement. 15.The Applicant further deposes that while her advocates were pursuing an amicable settlement with the Respondent’s advocates, the Respondent, through the Interested Party, proceeded to take out warrants of attachment and issue a proclamation against motor vehicle registration number KBD xxxL without her knowledge. She states that the said auctioneers subsequently seized the motor vehicle and advertised it for sale by public auction scheduled for 25th February, 2025. 16.According to the Applicant, she only became aware of the attachment and seizure several days later when the auctioneer contacted her demanding settlement of the auctioneer’s charges. 17.The Applicant further avers that her advocates filed an application dated 18th February, 2025 seeking leave to appeal out of time together with orders for stay of execution pending appeal. She states that the application was heard ex parte on 24th February, 2025 and that this court granted interim stay of execution orders on condition that she deposits Ksh.230,593/- within fourteen (14) days, failing which the orders would lapse. The matter was thereafter fixed for mention on 19th March, 2025 for compliance and further directions. 18.The Applicant deposes that immediately after delivery of the ruling and/or orders, her advocates served the Respondent’s advocates and the Interested Party with the stay orders through their official email addresses. She further states that her advocates communicated the contents of the ruling/orders to her insurer, who subsequently instructed counsel that the decretal sum be settled instead of pursuing the intended appeal. 19.According to the Applicant, her advocates thereafter informed the Respondent’s advocates of her intention to settle the decretal amount and on 26th February, 2025 forwarded proof of payment and remittance details confirming settlement of the claim. 20.The Applicant nevertheless avers that despite the Respondent and the Interested Party being fully aware of the subsisting stay orders and the settlement of the decretal amount, the motor vehicle was sold by public auction. She states that she only learnt of the sale on 6th March, 2025 and contends that the sale was conducted in blatant disregard of the court orders and was therefore unlawful and irregular. 21.The Applicant further deposes that there was no lawful basis for the Respondent and the Interested Party to proceed with execution in light of the subsisting stay orders and the settlement of the decretal sum. She contends that the sale of motor vehicle registration number KBD xxxL ought to be declared null and void and that any transfer effected in favour of a third party should be cancelled and the motor vehicle restituted to her. She further avers that the said motor vehicle constituted part of her tools of trade and that she continues to suffer irreparable loss and damage as a result of the attachment and sale thereof. 22.The Applicant finally deposes that unless the orders sought are granted, she will continue to suffer prejudice as the Respondent and the Interested Party have allegedly embarked on transferring the suit motor vehicle to a third party unlawfully. She therefore urges the court to cite the Respondent and the auctioneer for contempt of court and to grant the orders sought in the application in the interests of justice. C. The Respondent’s Grounds of Opposition. 23.In opposing the application, the Respondent filed grounds of opposition dated 6th May, 2025 contending that the application had been overtaken by events since the suit motor vehicle had already been sold on 25th February, 2025 pursuant to warrants of attachment and sale issued in Kisumu SCCC Nos. E400, E401 and E403 all of 2024. The Respondent therefore contends that the orders sought by the Applicant are incapable of being granted. 24.The Respondent further contends that the Applicant has failed to meet the threshold required for the grant of orders for contempt of court as contemplated under the applicable law and principles governing contempt proceedings. 25.The Respondent finally avers that the application is untenable, misconceived, defective and an abuse of the court process for want of factual and legal basis and urges the court to dismiss the same with costs. D. The Interested Party’s Replying Affidavit. 26.In his replying affidavit sworn on 6th May, 2025, the Interested Party deposes that he was improperly joined to the proceedings as no leave of the court had been sought to enjoin him as an Interested Party. He avers that he was merely an agent of the decree holder instructed to execute lawful court warrants and that, there being a disclosed principal, he ought not to have been sued in his personal capacity. 27.The Interested Party further deposes that he is a duly licensed Class B auctioneer practising within Kisumu and other counties. He states that on 20th January, 2025 he received instructions from the decree holder’s advocates in Kisumu SCCC No. E400 of 2024 to proclaim and attach the Applicant’s movable property in satisfaction of the decretal sum, costs and interest. Pursuant to the said instructions, he proclaimed motor vehicle registration number KBD xxxL together with other items and, upon lapse of the statutory period, proceeded to attach the said motor vehicle in compliance with the law. 28.He further avers that after attachment, he advertised the sale of the motor vehicle in The Standard newspaper edition of 17th February, 2025 scheduling the public auction for 25th Februar,y 2025. According to the Interested Party, the public auction proceeded as scheduled and one Pharis Simiyu emerged the highest bidder for the motor vehicle. 29.The Interested Party states that it was only after the sale had been concluded that the Applicant and an advocate from the insurer approached him seeking reversal of the transaction on grounds that payment had been made and stay orders issued. He however advised them that the only available option was to engage the purchaser with a view to reversing the sale, though such efforts proved unsuccessful. 30.The Interested Party denies ever being served with the alleged stay orders either personally or at all and avers that, as an officer of the court, he could not knowingly disobey a lawful court order. He further contends that the Applicant failed to demonstrate proper service of the orders or compliance with the procedural requirements governing contempt proceedings under Part 81.4 of the English Civil Procedure Rules (Amendment No. 3) Rules, 2020. 31.In particular, he avers that there was no proof of personal service, no evidence that personal service had been dispensed with, and no proof that the order contained a penal notice. He further contends that the Applicant failed to provide evidence of email delivery receipts as required under Order 5 Rule 22B of the Civil Procedure Rules. 32.The Interested Party also deposes that the pleadings filed by the Applicant contain inconsistencies regarding the registration number of the motor vehicle, at times referring to motor vehicle registration number KBD xxxL and at other times KDB xxxL. He further contends that the application is procedurally defective as contempt proceedings ought to have been commenced by way of an Application Notice as required under the applicable English Civil Procedure Rules and not by way of a Notice of Motion. 33.The Interested Party therefore maintains that the application is devoid of merit and urges the court to dismiss the same with costs. E. The Applicant’s Further Affidavit. 34.In her further affidavit sworn on 12th May, 2025, the Applicant reiterates the contents of her supporting affidavit and maintains the factual basis of her application. 35.The Applicant avers that, according to information received from her advocates which she believes to be true, the Respondent’s advocates and the Interested Party were duly served with the court order issued on 24th February, 2025 through email on the same day at 10:09am to their respective email addresses – chelotiadvocates@gmail.com and hazaraauctioneers@gmail.com respectively. She further states that the Interested Party’s email address is the same address to which Cheloti & Co. Advocates copied their response on 6th May, 2025, and therefore service of the court orders cannot be denied. 36.The Applicant further deposes that, according to her advocates, which information she believes to be true, the Respondent’s advocates were paid Ksh.180,000/- and Ksh.50,593/- on 27th February, 2025 in full settlement of the decretal sum within the period stipulated by the court. She maintains that the said payments are evidenced by remittance advices exhibited to the affidavit. 37.The Applicant therefore contends that, in light of proper service of the court orders and full settlement of the decretal sum within time, it is only fair and in the interests of justice that the application dated 9th March, 2025 be allowed to prevent a miscarriage of justice. F. The Applicant’s Submissions. 38.When the matter came up before this Court for hearing of the Applicant’s notice of motion by way of oral submissions, Ms. Kirabo, learned counsel for the Applicant, indicated that she would rely wholly on the application as filed together with the supporting affidavit and the further affidavit sworn by the Applicant. Counsel did not seek to introduce any additional factual material beyond what was already on record, but instead invited the Court to adopt the depositions therein as the basis of her submissions. 39.Counsel for the Applicant accordingly submitted that the averments contained in the affidavits sufficiently established the Applicant’s case and supported the orders sought in the application. She therefore urged the Court to allow the notice of motion as prayed and to award costs of the application to the Applicant. G. The Respondent’s & the Interested Party’s Submissions. 40.In his oral submissions, Mr. Godia, learned counsel for the Respondent and the Interested Party, indicated that he was relying entirely on the grounds of opposition filed on behalf of the Respondent as well as the Interested Party’s replying affidavit. He also placed reliance on the decision in Hato & 3 others v Gitonga & 6 others (Commercial Case No. 015 of 2020) [2024] KEHC 4064 (KLR) in support of the Respondents’ position on the applicable legal principles governing contempt proceedings. 41.Counsel submitted that the law governing contempt of court is set out under Part 81(4) of the English Civil Procedure Rules, 2020, which is applicable in Kenya by virtue of the Judicature Act. 42.He argued that the Applicant had failed to meet the mandatory requirements under the said framework, particularly the requirement of personal service of the alleged court order or a satisfactory explanation for departure from the same. 43.Counsel further submitted that there was no evidence that the auctioneer was ever served with the order of stay of execution, as no affidavit of service had been filed or exhibited to demonstrate proper service upon the Interested Party. 44.Accordingly, counsel urged the Court to find that the application was not properly founded in law or fact and to dismiss the same with costs to the Respondent and the Interested Party. H. Issues for Determination. 45.I have carefully considered the notice of motion dated 9th March, 2025, the affidavits on record, the grounds of opposition, the Interested Party’s replying affidavit, the rival submissions by counsel and the applicable law. The issues falling for determination may be isolated as follows:a.Whether the Respondent and/or the Interested Party are in contempt of court for alleged disobedience of the orders issued on 24th February, 2025.b.Whether the orders sought in the notice of motion dated 9th March, 2025 are merited.c.Who should bear the costs of the application. I. Analysis and Findings. 46.I will proceed to address and determine the above issues sequentially. 47.The first issue for determination is whether the Respondent and/or the Interested Party are in contempt of court. 48.The law on contempt proceedings is settled that a party alleging contempt bears a high burden of proof, given the quasi-criminal nature of the proceedings. It must be demonstrated to the required standard that there was a clear court order, that the alleged contemnor had knowledge of the order and that there was wilful disobedience of the same. 49.The Court of Appeal in Mutitika v Baharini Farm Ltd [1985] KLR 227 stated as follows:“A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily.” 50.Similarly, in Jabane v Olenja [1986] KLR 661, the Court emphasized that contempt must be proved with strictness, and any doubt must be resolved in favour of the alleged contemnor. 51.In the present case, the Applicant alleges that the Respondent and the Interested Party disobeyed the orders issued on 24th February, 2025. However, a critical procedural requirement in contempt proceedings is proof of service or knowledge of the order. The Court in Kenya Accountants and Secretaries National Examinations Board v Kipkemoi Cheng’orem & 3 others [2014] eKLR held:“It is a fundamental requirement that the order allegedly disobeyed must be served personally upon the alleged contemnor, or it must be demonstrated that he had knowledge of it.” 52.In the instant matter, there is no affidavit of service placed before this Court demonstrating service of the alleged order upon the Respondent or the Interested Party. There is also no process server identified in the pleadings, and no sworn affidavit detailing when, how or by whom service was allegedly effected. 53.The Applicant relies on alleged email service; however, no certificate of electronic service has been exhibited. The Court in Shimmers Plaza Ltd v National Bank of Kenya Ltd [2015] eKLR observed that where electronic service is alleged, compliance with the procedural requirements must be demonstrated, including proof of transmission and receipt. 54.In the absence of an affidavit of service or a certificate of electronic service, the allegation of service remains unverified. Where service is denied, it is incumbent upon the Applicant to place before the Court cogent evidence of service, failing which the application for contempt cannot succeed. 55.In addition, the Applicant does not disclose the identity of the person who allegedly effected service, further weakening the evidential basis of the claim. Allegations of service from the Applicant, without sworn proof by the person who is alleged to have effected service, amount to hearsay and are insufficient to ground contempt proceedings. 56.I also note that the auction purchaser is not joined to these proceedings despite being the person who acquired rights over the subject motor vehicle. The Court in Kariuki & 2 others v Minister for Gender, Sports, Culture & Social Services & 2 others [2004] 1 KLR 524 held that:“A court ought not make orders that adversely affect a person who has not been joined to the proceedings.” 57.In the circumstances, even assuming there was a dispute regarding the validity of the sale, the absence of the purchaser renders the orders sought for nullification and restitution procedurally and substantively untenable. 58.I therefore find that the Applicant has failed to establish, to the required standard, the essential elements of contempt of court. 59.The second issue for determination, which is tied to the issue that I have already resolved, is whether the orders sought in the notice of motion are merited. 60.The Applicant seeks, inter alia, declarations of nullity of the sale, cancellation of transfer, restitution of the motor vehicle and punitive orders for contempt. 61.The law is clear that a court will not grant consequential orders founded on contempt where the threshold for contempt has not been met. Having found that contempt has not been established, the ancillary orders sought must necessarily fail. 62.Further, the prayers seeking cancellation of sale and restitution affect the proprietary rights of a third party purchaser who is not a party to these proceedings. This Court is guided by the principle of audi alteram partem, which dictates that no person should be condemned, penalised, or have their rights affected without being given a fair opportunity to be heard. 63.Accordingly, the substantive prayers sought in the application are not available for grant. 64.The final issue for determination is who should bear the costs of the application. 65.Costs ordinarily follow the event unless good reason is shown otherwise. This principle was reiterated in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR where the Supreme Court stated:“The award of costs is a matter of judicial discretion, and the basic rule is that costs follow the event.” 66.In the present case, the application has failed in its entirety. I find no special circumstances warranting a departure from the general rule. J. Conclusion and Disposition. 67.Being of the foregoing findings, I reach the result that the notice of motion dated 9th March, 2025 is without merit. I proceed to dismiss it with costs to the Respondent and the Interested Party. 68.Pursuant to the orders issued herein on 18th September, 2025, the ruling and orders issued herein will be apply to the similar applications filed in Kisumu HC Misc. Civil Application No. E025 of 2025 and HC Misc. Civil Application No. E026 of 2025. A copy of this ruling will therefore be place in the two files. 69.This file is hereby closed. DELIVERED (VIRTUALLY) DATED & SIGNED THIS 28TH DAY OF MAY, 2026.JOE M. OMIDOJUDGEFor the Applicant: No Appearance.For the Respondent: Ms. Cheloti.For the Interested Party: No appearance.Court Assistant: Mr. Ngoge.