Nderitu t/a Jogan Dries Auctioneers & another v Hirsi & 2 others (Environment and Land Appeal E150 of 2025) [2026] KEELC 5358 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI** **ELC APPEAL NO. E150 OF 2025** **JOSEPH NDERITU** **T/A JOGAN DRIES AUCTIONEERS 1ST APPELLANT** **SAADIA MADEY ADAN 2ND APPELLANT** **-VERSUS-** **ABDULLAHI SHEIKH HIRSI 1ST RESPONDENT** **OSMAN ALI MOHAMED 2ND RESPONDENT** **-AND-** **IDOW TRADING CO. LTD INTERESTED PARTY** ***(Being an appeal from the whole of the Ruling and Order of Hon. M. A. Otindo (Ms.), Principal Magistrate, delivered on 30th July 2025 in the Milimani Commercial Magistrate's Court, Environment and Land Court Division, in MCELCMISC No. E163 of 2025)*** **JUDGMENT** 1. Before this Court for determination is the appeal dated 8th August 2025 preferred against the whole of the Ruling and Order of Hon. M. A. Otindo (Ms.), Principal Magistrate, delivered on 30th July 2025 in Milimani Commercial Magistrate's Court, Environment and Land Court Division, MCELCMISC No. E163 of 2025. 2. The parties were differently designated in the court below, and the designations shifted in the course of those proceedings. The miscellaneous cause was commenced by Joseph Nderitu t/a Jogan Dries Auctioneers as applicant, with Saadia Madey Adan described as the landlady and Abdullahi Sheikh Hirsi as the tenant. Upon the filing of the application dated 11th July 2025, Osman Ali Mohamed became the applicant, and the auctioneer, the landlady, the tenant and the Officer Commanding Eastleigh North Police Station were designated the 1st, 2nd, 3rd and 4th respondents respectively. 3. To avoid confusion, I shall in this judgment use the designations in the appeal before me, and shall in addition refer to the parties by description: the 1st appellant as “the auctioneer”, the 2nd appellant as “the landlady”, the 1st respondent as “the tenant”, the 2nd respondent as “Mr. Osman”, and the Officer Commanding Eastleigh North Police Station as “the OCS”. **Background to the appeal** 1. The background, as it emerges from the record of appeal, is largely a matter of documents and is in its essentials not in dispute. 2. The 2nd appellant is the registered proprietor of all that parcel of land known as L.R. No. 36/1/1033 situate at Eastleigh within Nairobi. The 1st respondent was her tenant on that parcel and fell into arrears of rent in the sum of Kshs. 810,000/-. By a letter of instruction dated 8th May 2025, the 2nd appellant instructed the 1st appellant, a licensed class “B” auctioneer, to levy distress for the said arrears against the 1st respondent. 3. On 9th May 2025 the 1st appellant issued a proclamation notice in Sale Form 2 of the Schedule to the Auctioneers Rules, 1997. The items proclaimed, with their estimated values, were three sofa sets (Kshs. 35,600/-), one computer (Kshs. 15,000/-), five office chairs (Kshs. 47,500/-), a water dispenser (Kshs. 18,500/-), a wall clock (Kshs. 5,000/-) and an air compressor (Kshs. 60,000/-). The condition of each item was recorded as fair, the notice was signed by the 1st appellant, and it bore an endorsement that the 1st respondent had declined to append his signature. 4. By a notice of motion dated 12th June 2025, supported by the affidavit of Joseph Nderitu sworn on the same date, the 1st appellant sought police assistance to enable him to complete the levy. On 16th June 2025 the trial court allowed that application and issued an order in the following material terms: *“1. THAT an order is hereby issued authorizing the Officer Commanding Station (OCS) Eastleigh North Police Station to assist the Auctioneer Mr. Joseph Nderitu t/a Jogan Dries Auctioneers to execute instructions to levy distress on the premises occupied by the Tenant herein: Abdullahi Sheikh Hirsi on L.R. No. 36/1/1033 – Nairobi and remove the proclaimed movable assets for the purposes of attaching them to recover the rent arrears amounting to Ksh. 810,000.00 plus other incidental costs of the distress PROVIDED IT IS UNDERSTOOD THAT THIS IS NOT AN ORDER FOR EVICTION OR DEMOLITION. 2. THAT the officer commanding (OCS) Eastleigh North Police Station – Nairobi do hereby supervise the exercise for the purposes of maintaining law and order. 3. THAT costs of those application be in the cause.”* 1. Two features of that order deserve emphasis at the outset, because much of this appeal turns upon them. First, the order was confined to the premises occupied by the 1st respondent on L.R. No. 36/1/1033. Secondly, it authorised the removal of “the proclaimed movable assets”, and nothing else. 2. On or about 11th July 2025 goods were removed from premises at Eastleigh. On the same day notifications of sale were issued. Those notifications, on the trial court's own reading of them, listed assorted scrap metals valued at Kshs. 200/-, motor vehicle registration number KAR 100H valued at Kshs. 5,000/- and motor vehicle registration number KBJ 855J valued at Kshs. 20,000/-. None of the six categories of item set out in the proclamation notice of 9th May 2025 appeared in those notifications. 3. Also on 11th July 2025, Mr. Osman moved the trial court by a notice of motion in the same miscellaneous file. He described himself as the proprietor of the adjoining parcel, L.R. No. 36/1/1034, on which he ran a motor vehicle garage. He sought, in substance: to be enjoined as an interested party; a stay, setting aside or vacation of the order of 16th June 2025; a mandatory injunction commanding the 1st appellant to release and return goods said to have been illegally attached from L.R. No. 36/1/1034; an order prohibiting the disposal of those goods; orders citing the 1st appellant, the 2nd appellant and the OCS for contempt and summoning them to show cause why they should not be committed to civil jail; and reinstatement into occupation of L.R. No. 36/1/1034. 4. His case, on his supporting affidavit of 11th July 2025 and his further affidavit of 17th July 2025, was that he had been illegally evicted from L.R. No. 36/1/1034, that his tools of trade, several motor vehicles and spare parts had been carried away, that the exercise had been supervised by the OCS, and that there subsisted an order of the Court of Appeal made on 4th March 2024 in Civil Appeal No. E467 of 2023 maintaining the status quo in respect of that parcel. He deposed that he had no landlord and tenant relationship with the 1st respondent, and that the distress ought to have been levied on L.R. No. 36/1/1033 and not on his parcel. 5. He relied on the affidavits of Gidraph Mwangi, Abdallah Mahum Abdallah and Collins Siema, all sworn on 18th July 2025, who deposed to having been at a garage owned by him when a group of persons arrived with breakdown vehicles and carted away motor vehicles and spare parts; and on the affidavit of Ahmed Salat Ainte sworn on 21st July 2025, who claimed motor vehicle registration number KAR 100H, deposing that he had left it at Mr. Osman's garage and had no relationship with the 1st respondent. By a further affidavit sworn on 21st July 2025, Mr. Osman sought to reconcile the names “Mohammed Essman Ali” appearing on the national identity card exhibited with “Osman Ali Mohamed”, the name used in the proceedings and on the land documents, deposing that both refer to one and the same person. 6. The application was opposed. The 2nd appellant, by her replying affidavit sworn on 17th July 2025, and the 1st appellant, by his replying affidavit of the same date, deposed that the instructions and the order of 16th June 2025 related exclusively to L.R. No. 36/1/1033; that L.R. No. 36/1/1034, if it exists, is a wholly separate and adjacent parcel in which neither of them claims any interest; that neither of them is a party to the proceedings in the Court of Appeal; that the order sought to be set aside had already been executed and the file closed; and that the reliefs sought were substantive in nature and could not be granted in a miscellaneous application. A replying affidavit was also sworn by Mohamed Ali on 18th July 2025 to substantially the same effect, adding that rent had consistently been collected from the 1st respondent in respect of the same premises. 7. There was a further development in the court below which, for reasons that will appear, is of some significance. On 15th July 2025 the 1st respondent the tenant against whom the distress was levied himself moved the trial court by a notice of motion supported by his affidavit sworn on the same date. He sought to restrain the sale by public auction of motor vehicles registration numbers KAR 100H and KBJ 855J, which he deposed had been attached and advertised for sale pursuant to the order of 16th June 2025. He deposed that he was desirous of settling the rent arrears of Kshs. 810,000/- together with costs, and, materially, that motor vehicle registration number KBJ 855J did not belong to him but to his client, one Mohamed Abdullahi Jire, and he exhibited an NTSA search in support. Interim orders restraining the sale issued on 17th July 2025. 8. On 24th July 2025 the 2nd appellant and the 1st respondent recorded a consent by which the 1st respondent issued two post-dated cheques of Kshs. 410,000/- and Kshs. 400,000/-, totalling Kshs. 810,000/-, in settlement of the rent arrears owing in respect of L.R. No. 36/1/1033, undertook to pay the 1st appellant auctioneer's charges of Kshs. 81,000/-, and agreed to bear the costs of the matter, which was to be marked as closed. 9. The application dated 11th July 2025 was canvassed by way of oral submissions on 21st July 2025, and the ruling now impugned was delivered on 30th July 2025. **The impugned ruling** 1. The trial court framed two issues: whether the application was fatally defective, and, if not, whether the prayers sought were merited. 2. On the first issue, the court held that the affidavit sworn on 21st July 2025 settled the contest as to the identity of the applicant, and, noting that no objection had been raised in the replying affidavits to the prayer for joinder, granted prayer 2 and enjoined Mr. Osman as an interested party. 3. On the merits, the court set out sections 3 and 4 of the Distress for Rent Act, Cap. 293, and Rule 12 of the Auctioneers Rules, Legal Notice No. 120 of 1997. It found that the right to levy distress was available to the landlady and her agent in respect of L.R. No. 36/1/1033, and that the proclamation notice of 9th May 2025 complied in form with the requirements as to description, value and notice. 4. The court then compared the proclamation notice with the notifications of sale issued on 11th July 2025 and found that the latter did not include any of the proclaimed items, but instead included assorted scrap metals and the two motor vehicles. It held that, pursuant to Rule 12(2)(b) of the Auctioneers Rules, the 1st appellant ought to have applied afresh for leave of the court to attach other movable property not proclaimed, and that, not having done so, the attachment and advertisement for sale by public auction was “unprocedural and an illegality”. 5. On the question of the premises from which the goods were taken, the court observed that the position was one word against another; that by section 107 of the Evidence Act he who alleges must prove; that Mr. Osman's position had been corroborated by the affidavit evidence of three other witnesses while that of the 1st appellant remained uncorroborated; and that it was “quite surprising” that the 1st respondent had remained “mum” on whether the 1st appellant had gone to his property, having only stated that he was ready to pay the rent arrears. The court accordingly was persuaded to believe Mr. Osman that the 1st appellant had proceeded to the wrong property and attached what he had not proclaimed. 6. Directing itself by reference to **Kenya Breweries Ltd v Washington Okeyo [2002] EA 109** on the principles governing mandatory injunctions, the court held that this was a clear case warranting the grant of such an injunction as prayed. 7. On contempt, the court set out the principles in **Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR,** including the four elements drawn from the learned authors of Contempt in Modern New Zealand. It held that there was no doubt that the 1st, 2nd and 4th respondents before it were aware of the terms of the order of 16th June 2025, that the order had been breached by attaching what was not proclaimed and at the wrong property, and that they were accordingly in contempt. It issued summons for them to show cause why they should not be committed to civil jail. 8. As regards reinstatement, the court held that there was sufficient uncontested proof of a subsisting order of the Court of Appeal which it could not overwrite. 9. The formal orders extracted on 30th July 2025 were, in summary: (a) the applicant enjoined as an interested party; (b) an order prohibiting the 1st appellant from disposing of, transferring or alienating the applicant's goods; (c) a mandatory injunction commanding the 1st appellant to release and return the applicant's goods illegally attached from land described as L.R. No. 36/1/0134, inter alia motor vehicles registration numbers KAH 100H and KBJ 855J, unconditionally and at his own cost; (d) the 1st, 2nd and 4th respondents cited for contempt of the orders of 16th June 2025 with notice to show cause returnable on 24th September 2025 and the contemnors to appear in person; (e) the subsisting order of the Court of Appeal over L.R. No. 36/1/1034 to apply as regards prayer 8; and (f) the 1st and 2nd respondents to bear the costs of the application. **The Appeal and the submissions** 1. The memorandum of appeal dated 8th August 2025 raises six grounds, namely, that the learned trial magistrate erred in law and in fact: in enjoining the 2nd respondent as a party to proceedings where orders had already been executed; in granting orders that were already spent and without a suit or counterclaim; in granting substantive orders in a miscellaneous file where orders had already been executed and the file closed; in failing to appreciate the facts and the law relating to the levying of distress and the role of the police; in failing to appreciate that the levy of distress was carried out on L.R. No. 36/1/1033 and not on L.R. No. 36/1/1034; and in failing to consider the evidence on record. 2. Since the filing of the appeal, Idow Trading Co. Ltd has been joined as an interested party. It filed written submissions dated 12th August 2026. The 1st appellant filed written submissions dated 14th August 2026. No submissions have been filed by the 1st or the 2nd respondents. 3. The 1st appellant's submissions distil the appeal into three propositions. First, that a court exercising interlocutory jurisdiction in a miscellaneous cause cannot join a stranger, grant him final and substantive proprietary relief and make findings of contempt exposing non-parties to committal, without a substantive suit and on contested affidavit evidence. Reliance is placed on Order 3 Rules 1 and 2 of the Civil Procedure Rules, 2010, on **Rockland Kenya Ltd v Commissioner General of Kenya Revenue Authority & Another [2020] eKLR, and on Witmore Investment Ltd v County Government of Kirinyaga & 3 Others [2016] eKLR.** Secondly, that the order of 16th June 2025 was spent and the court functus officio in respect of it, relying on **Telkom Kenya Limited v John Ochanda [2014] KECA 600 (KLR) and Mombasa Bricks & Tiles Ltd & 5 Others v Arvind Shah & 7 Others [2018] eKLR.** Thirdly, that contempt being quasi-criminal, the trial court applied the wrong standard of proof, and that its findings of fact were against the weight of the evidence, in particular as regards the two motor vehicles and the unresolved discrepancy between KAR 100H and KAH 100H. 4. The Interested Party submits that it, and not the 2nd respondent, is the registered proprietor of L.R. No. 36/1/1034; that no distress was levied and no eviction carried out on that parcel; that by a judgment of this Court by L. Mbugua, J. delivered on 28th September 2023 in ELC Case No. 63 of 2008 it was declared the owner of that parcel and the 2nd respondent was condemned in damages of Kshs. 8,000,000/- for trespass; and that the 2nd respondent's appeal against that judgment, Civil Appeal No. E936 of 2023, was dismissed by the Court of Appeal (Musinga, Mumbi Ngugi and Odunga, JJ.A.) on 12th June 2026, that Court holding that a temporary occupation licence confers no proprietary interest in land. It relies additionally on **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] KECA 606 (KLR).** The 1st appellant adopts those submissions and, on their strength, invites this Court to declare that the 2nd respondent has no proprietary or occupational interest in L.R. No. 36/1/1034. **Issues for determination** 1. I have considered the record of appeal, the memorandum of appeal, the written submissions and the authorities relied upon. 2. In my respectful view, the following issues arise for determination: **(i) Whether the trial court had jurisdiction, in a miscellaneous cause commenced by notice of motion for police assistance, to join the 2nd respondent and to grant him the reliefs it did;** **(ii) Whether the order of 16th June 2025 was spent, such that the application dated 11th July 2025 was incompetent;** **(iii) Whether the findings that the 1st appellant attached goods that had not been proclaimed and did so at the wrong premises were open to the trial court, and whether the mandatory injunction was properly granted;** **(iv) Whether the findings of contempt against the 1st and 2nd appellants and the OCS can stand;** **(v) What effect, if any, the judgment of the Court of Appeal delivered on 12th June 2026 has upon this appeal; and** **(vi) What orders ought to issue, and who should bear the costs.** 1. This is a first appeal from the exercise of discretion by a magistrate on an interlocutory application. My duty is to re-evaluate the material that was before the trial court and to reach my own conclusions. 2. That duty is, however, tempered where the decision appealed from is discretionary. As Sir Charles Newbold, P. put it in the much-cited **Mbogo & Another v Shah [1968] EA 93,** an appellate court should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice. To the same effect is Mohammed **Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KLR 661,** where the Court of Appeal identified the taking into account of matters that ought not to have been taken into account, the failure to take into account matters that ought to have been, the misapprehension of the effect of the evidence, and the application of wrong principles, as the grounds upon which appellate interference is justified. 3. It is against that standard, and not upon the basis of what I myself might have done had the application come before me at first instance, that each of the findings under challenge must be tested. I approach the several limbs of the ruling separately, for they do not, in my judgment, stand or fall together. ***Issue (i): Jurisdiction in a miscellaneous cause*** 1. The proceedings below were designated MCELCMISC No. E163 of 2025. They were commenced not by plaint, originating summons or petition, but by a notice of motion seeking police assistance in aid of a levy of distress. Order 3 Rules 1 and 2 of the Civil Procedure Rules, 2010 prescribe the modes by which a suit may be instituted, and a miscellaneous application is not among them. 2. The 1st appellant is on firm ground in submitting that final and substantive relief cannot ordinarily be granted in a miscellaneous application. That is the effect of **Rockland Kenya Ltd v Commissioner General of Kenya Revenue Authority & Another (supra) and of the observation of Limo, J. in Witmore Investment Ltd v County Government of Kirinyaga & 3 Others (supra)** that where an order sought would in effect resolve with finality a contested issue, the application ceases to be interlocutory and it is a misconception to describe it as such. 3. But that principle does not, in my respectful view, answer the whole of this case, and I decline to accept the submission that the joinder of Mr. Osman was, by itself, a jurisdictional error. 4. A court which issues process retains an inherent jurisdiction to supervise the execution of that process and to prevent its own orders from being used as an instrument of injustice. That jurisdiction is preserved by section 3A of the Civil Procedure Act. Where a stranger to the proceedings comes before the court complaining that his goods have been seized under colour of an order of that very court, the court is not powerless to hear him. To hold otherwise would be to say that a person whose property is taken under a court order has no audience before the court that made it a proposition that cannot be reconciled with Article 48 of the Constitution, or indeed with elementary justice. The trial court was entitled to hear Mr. Osman on the limited question whether its order of 16th June 2025 had been exceeded, and, if satisfied that it had been, to undo what had been done in excess of that order. 5. The jurisdiction is, however, a narrow one, and its limits are important. It extends to the restoration of the position as it stood before the court's process was exceeded. It does not extend to the trial of title, whether to land or to goods; nor to the adjudication of competing claims of ownership on conflicting affidavits; nor to the award of substantive relief founded on such a determination. Those are matters for a properly constituted suit, in which pleadings are exchanged, discovery is had, and evidence is tested by cross-examination. 6. Measured against those limits, the trial court fell into error not by hearing Mr. Osman, but by the width of the relief it granted him. Its order (c) commanded the release and return of “the applicant's goods illegally attached from land described as L.R. No. 36/1/0134”. Each of the two operative descriptions in that order that the goods were the applicant's, and that they came from L.R. No. 36/1/1034 was a contested proprietary and factual determination made on affidavit alone. That was substantive relief in a miscellaneous cause, and to that extent Grounds 1 and 3 of the memorandum of appeal are made out. 7. I should add, for completeness, that no separate prejudice flows from the joinder itself. The order joining Mr. Osman as an interested party is, on any view, spent in its consequences once the reliefs founded upon it are addressed, and I see no reason to disturb it. ***Issue (ii): Whether the order of 16th June 2025 was spent*** 1. The 1st appellant submits that the order of 16th June 2025 had been fully executed by the time the application of 11th July 2025 was filed, that it was therefore spent, and that the trial court was functus officio in respect of it. Reliance is placed on **Telkom Kenya Limited v John Ochanda (supra) and Mombasa Bricks & Tiles Ltd & 5 Others v Arvind Shah & 7 Others (supra).** 2. The legal proposition is unimpeachable. The difficulty is that it does not fit the facts disclosed by the record. 3. The execution of the order of 16th June 2025 was not complete on 11th July 2025. On the contrary, the record shows that the goods were removed on or about that very day; that the notifications of sale were issued on 11th July 2025; that no sale by public auction ever took place; that the goods remained in the custody of the 1st appellant; and that the trial court issued interim orders restraining the sale on 17th July 2025. The submission that the process “had run its course” some sixteen days before the application was filed is, with respect, not supported by the record. A levy which has proceeded to attachment and advertisement but not to sale is a levy still on foot, and the court whose order authorised it retains jurisdiction over it. 4. I would add that the trial court did not in fact stay, set aside or vacate the order of 16th June 2025. Prayer 3 of the application was not granted, and does not appear among the orders extracted. The complaint under this ground is therefore, in any event, largely academic. 5. Ground 2 accordingly fails. ***Issue (iii): The findings of fact and the mandatory injunction*** 1. Two distinct findings must be separated here, for the trial court ran them together and the appellants' submissions do the same. The first is that the 1st appellant attached and advertised goods that he had never proclaimed. The second is that he did so at the wrong premises. 2. As to the first, the finding was in my view plainly open to the trial court, and I decline to disturb it. Rule 12(1)(b) of the Auctioneers Rules, 1997 requires the auctioneer to prepare a proclamation in Sale Form 2 “indicating the value of specific items and the condition of each item”. That requirement is not answered by a general endorsement extending the proclamation to “any other movable property that belongs to the tenant”; a catch-all of that kind is the very antithesis of the specificity the Rule demands. Rule 12(2) then provides expressly for the situation in which the auctioneer finds other goods that were not proclaimed: he must apply to court for leave to attach them. It is common ground that no such application was made. Further and independently, the order of 16th June 2025 authorised the removal of “the proclaimed movable assets” and no more. On the trial court's comparison of the proclamation notice of 9th May 2025 with the notifications of sale of 11th July 2025, the conclusion that items outside the proclamation had been attached and advertised was one to which a reasonable court could come. That being so, the trial court was entitled to characterise the attachment of the unproclaimed items as irregular and to order their release. 3. The second finding stands on a very different footing. Whether the goods were taken from L.R. No. 36/1/1033 or from the adjoining L.R. No. 36/1/1034 was a sharply contested question of fact. It was resolved on affidavit alone, without cross-examination, and substantially on the footing that Mr. Osman's account was corroborated by three deponents while the 1st appellant's was not. With respect, corroboration by deponents who are, on their own showing, the applicant's employees and the applicant's customer is not a substitute for the testing of evidence; and a contest of affidavits does not become clear merely because one side has filed more of them. 4. More seriously, the finding was reached without regard to material evidence that was on the record and that pointed the other way. The trial court observed that the 1st respondent had “remained mum” on whether the 1st appellant had come to his property and had said no more than that he was ready to pay the arrears. That observation is not borne out by the record. On 15th July 2025 six days before the application was argued the 1st respondent had himself moved the trial court by notice of motion, supported by his own affidavit, seeking to restrain the sale of the very two motor vehicles, registration numbers KAR 100H and KBJ 855J, and deposing in terms that they had been attached and advertised pursuant to the order of 16th June 2025 and that KBJ 855J belonged to his client, one Mohamed Abdullahi Jire. On 30th July 2025 counsel for the 1st respondent again asked, in open court, that KBJ 855J be released to Mohamed Abdullahi. That evidence, coming from the tenant on whose premises the distress was admittedly levied and who was best placed to know from where his goods were taken, was directly inconsistent with the case that those vehicles had been carted away from Mr. Osman's garage on L.R. No. 36/1/1034. It was neither referred to nor weighed. 5. A finding of fact reached in disregard of material evidence properly on the record, and upon a misapprehension of the effect of that evidence, is precisely the kind of finding with which an appellate court may and should interfere: **Mbogo & Another v Shah (supra); Jabane v Olenja (supra).** The finding that the 1st appellant attached goods at the wrong premises cannot, in my judgment, stand. 6. It follows that the mandatory injunction cannot stand in the form in which it was granted. The trial court correctly directed itself, by reference to Kenya Breweries Ltd v Washington Okeyo (supra) and Volume 24 of Halsbury's Laws of England, 4th Edition, that a mandatory injunction will not normally be granted on an interlocutory application save where the case is clear, or the act complained of is simple and easily remedied, or the defendant has attempted to steal a march on the plaintiff. Having correctly identified that test, it then misapplied it: upon its own recitation of the material, this was not a clear case as to whose goods these were or from where they came. 7. Three further difficulties attend the order as drawn. First, it commanded the release of motor vehicle registration number KAH 100H. That registration appears nowhere in the evidence. The notification of sale and the affidavit of Ahmed Salat Ainte both speak of KAR 100H. An order for the delivery of a specific chattel that is misdescribed is, to that extent, incapable of execution. Secondly, it commanded the release of KBJ 855J to Mr. Osman when the only direct evidence as to that vehicle's ownership, which was not controverted, was that it belonged to Mohamed Abdullahi Jire, a person who was never before the court. Thirdly, by describing the goods as “the applicant's”, the order determined ownership in proceedings incapable of determining it. 8. None of that means that the goods should remain where they are. The irregularity found by the trial court the attachment of goods outside the proclamation and outside the terms of the enabling order is established, and it calls for a restorative remedy. What is required is an order which undoes the excess without adjudicating title. I shall make such an order in place of orders (b) and (c) of the ruling. 9. I would observe, though it does not form part of the orders I make, that the consent recorded on 24th July 2025 settled the arrears of rent and the auctioneer's charges. Once the rent for which goods are distrained, together with the costs of the distress, has been satisfied, the distress is at an end and the goods distrained fall to be restored. Whether that consent has been performed is a matter within the knowledge of the parties, not of this Court, and nothing in this judgment is to be read as relieving any party of an obligation under it. 10. Grounds 5 and 6 accordingly succeed in part, and Ground 4, so far as it concerns the law of distress, succeeds only to the limited extent set out above. ***Issue (iv): The findings of contempt*** 1. The findings of contempt are, in my judgment, the most troubling part of the ruling, and they cannot be sustained for four cumulative reasons. 2. First, as to the standard of proof. The 1st appellant submits that contempt must be proved beyond reasonable doubt. That is put a little too high. The settled position in this jurisdiction, stated by the Court of Appeal in **Mutitika v Baharini Farm Limited [1985] KLR 229,** is that the standard of proof in contempt proceedings is higher than that in ordinary civil proceedings, approaching but not identical with the criminal standard. The essential point, however, is well taken. The ruling quoted, from the learned authors of Contempt in Modern New Zealand by way of Samuel M. N. Mweru (supra), the very passage which records that the applicant must prove the elements “to the required standard (in civil contempt cases which is higher than civil cases)”. Having recited that standard, the court nowhere applied it. It resolved the contested question of location by preferring one set of interested affidavits to another on the ordinary civil footing, and then carried that finding directly across into a conclusion of contempt. A finding exposing a person to committal to civil jail cannot rest upon a foundation of that kind. 3. Secondly, as to the nature of the order said to have been contemned. The order of 16th June 2025 was, in substance, an enabling order. It authorised the 1st appellant to do that which, as the landlady's agent, he was entitled at law to do, and it directed the OCS to keep the peace while he did it. It imposed no obligation whatsoever upon the 2nd appellant. A person who exceeds the authority conferred by an enabling order acts without authority; whether he thereby also defies the court requires a clear identification of the term of the order breached and of a deliberate disobedience of it. The ruling identified neither in respect of the 2nd appellant. She gave instructions to levy distress on her own parcel, which is what the order permitted; nothing in the material suggests that she directed the attachment of unproclaimed goods or the entry upon any other parcel. 4. Thirdly, as to the fourth element of the test the trial court itself adopted, namely that the conduct be deliberate. That element was neither addressed nor found. Irregularity in the conduct of a levy is not, without more, deliberate defiance of a court order. 5. Fourthly, and most fundamentally, as to the OCS. He was not a party to the miscellaneous cause. He was not served with the application. He did not appear, was not represented, and swore no affidavit. The only material touching him was the general assertion that the exercise was supervised by him. A finding that a person is in contempt of court, carrying with it the prospect of committal, cannot be made against a person who has not been heard. That is a requirement of Article 50(1) of the Constitution and of the oldest of the rules of natural justice. The proper course, if the court considered that a case had been disclosed, was to issue a notice to show cause and to determine the question of contempt after hearing those cited. Instead, the court made the finding first and issued the summons afterwards, which inverts the process and leaves those summoned to answer a case already decided against them. 6. Ground 4 accordingly succeeds. Order (d) of the ruling must be set aside in its entirety. I say nothing as to whether any application for contempt properly brought and properly heard would or would not succeed; that question is not before me. ***Issue (v): The effect of the judgment of the Court of Appeal of 12th June 2026*** 1. The Interested Party has placed before this Court the judgment of the Court of Appeal delivered on 12th June 2026 in Civil Appeal No. E936 of 2023, dismissing the 2nd respondent's appeal against the judgment of this Court (L. Mbugua, J.) delivered on 28th September 2023 in ELC Case No. 63 of 2008. That judgment declared the Interested Party the proprietor of L.R. No. 36/1/1034 and awarded it general damages of Kshs. 8,000,000/- for trespass; the Court of Appeal held that the temporary occupation licence on which the 2nd respondent relied created no proprietary interest in land and could not override the registered proprietary rights of the Interested Party. 2. That judgment postdates both the impugned ruling and the memorandum of appeal, and it was placed before this Court by the Interested Party rather than by the appellants, who have offered to produce a certified copy by way of a supplementary record. Its existence and terms are not in dispute, and a judgment of the Court of Appeal is a public judicial record of which this Court may properly take cognisance. I have therefore had regard to it, but only for the limited purposes for which it is relevant. 3. Its relevance is real but narrower than the appellants would have it. It establishes that the 2nd respondent has no proprietary or occupational interest in L.R. No. 36/1/1034. It thereby removes the foundation of the status quo upon which the trial court declined to order his reinstatement, and it renders order (e) of the ruling otiose. 4. It does not, however, determine the ownership of the chattels. Title to goods does not follow title to the land on which they happen to stand. A person in occupation of land, even wrongfully, may own goods upon it, and may sue in conversion or in detinue for their wrongful taking. It follows that the Court of Appeal's judgment does not, of itself, defeat any claim that the 2nd respondent may have to the goods attached, and I decline the invitation to treat it as doing so. 5. For the same reason, and for three further reasons, I decline the declaration sought at prayer 4 of the 1st appellant's written submissions, namely that the 2nd respondent has no proprietary or occupational interest in L.R. No. 36/1/1034. First, no such relief was sought in the memorandum of appeal, and an appellate court is confined to the grounds properly before it. Secondly, these are appellate proceedings arising from an interlocutory ruling in a miscellaneous cause; they afford no vehicle for declaratory relief as to title. Thirdly, the declaration would in any event add nothing to what the Court of Appeal has already decided. 6. As to Nguruman Limited v Jan Bonde Nielsen & 2 Others (supra), on which both the Interested Party and the 1st appellant rely, its assistance is at the level of principle only. It restates the limits of appellate interference with discretion and the requirement that an applicant establish a clear and unmistakable right before injunctive relief issues. I have applied those principles above. ***Issue (vi): Disposition and costs*** 1. Drawing the threads together: the trial court had jurisdiction to hear Mr. Osman on the limited question whether its own order had been exceeded, and its finding that goods outside the proclamation were attached and advertised was open to it. But it exceeded the limits of that jurisdiction by determining, on affidavit, whose goods they were and from which parcel they came; its finding that the levy was carried out at the wrong premises was reached in disregard of material evidence; the mandatory injunction was granted contrary to the test the court itself identified and in terms that are in part unexecutable; and the findings of contempt were made on the wrong standard, without the element of deliberateness, against a party against whom no term of the order operated, and against a person who was never heard. 2. The appeal therefore succeeds in substantial part, but not in its entirety. That divided outcome is reflected in the orders I make and in the order for costs. Costs follow the event, but where success is divided the just course is ordinarily that each party bears its own, and I so order both here and below. 3. Finally, I record that nothing in this judgment determines the ownership of any of the goods attached, or the lawfulness or otherwise of the levy as between the 2nd respondent and the appellants. Any claim the 2nd respondent, or Mohamed Abdullahi Jire, or Ahmed Salat Ainte, or any other person may have arising from the attachment must be ventilated in a properly constituted suit, in which the appellants will be at liberty to raise every defence open to them, including those founded on the judgment of the Court of Appeal of 12th June 2026. **Disposition** 1. In the result, and for the reasons set out above, I make the following orders: **i. The appeal dated 8th August 2025 is allowed in part.** **ii. Order (a) of the Ruling and Order of Hon. M. A. Otindo (Ms.) delivered on 30th July 2025, joining the 2nd respondent as an interested party in MCELCMISC No. E163 of 2025, is upheld.** **iii. Orders (b) and (c) of the said Ruling and Order are set aside, and in substitution therefor it is ordered that the 1st appellant shall, within twenty-one (21) days of the date hereof and at his own cost, release and restore all goods, chattels and motor vehicles attached and removed on or about 11th July 2025 which were not listed in the proclamation notice dated 9th May 2025 including the assorted scrap metal and the motor vehicles registration numbers KAR 100H and KBJ 855J to the persons from whose possession they were respectively taken.** **iv. Pending compliance with order (iii) above, the 1st appellant is restrained from selling by public auction, disposing of, transferring, alienating or otherwise dealing with the said goods, chattels and motor vehicles.** **v. For the avoidance of doubt, no determination is made by this Court as to the ownership of any of the said goods, chattels or motor vehicles, and orders (iii) and (iv) above are made solely in restoration of the position that obtained before the order of 16th June 2025 was exceeded.** **vi. Order (d) of the said Ruling and Order, citing the 1st appellant, the 2nd appellant and the Officer Commanding Eastleigh North Police Station for contempt of court and issuing notices to show cause against them, is set aside in its entirety.** **vii. Order (e) of the said Ruling and Order is set aside, the proceedings on which it was founded having been concluded; the trial court's refusal of the prayer for reinstatement into occupation of L.R. No. 36/1/1034 is not disturbed.** **viii. Order (f) of the said Ruling and Order is set aside, and in substitution therefor each party shall bear its own costs of the application dated 11th July 2025.** **xi. Each party shall bear its own costs of this appeal.** **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 31ST DAY OF AUGUST 2026** **E. K. WABWOTO** **JUDGE** **In the presence of:** **Mr. Rukwaro for the 2nd Appellant.** **N/A for the 1st Respondent.** **N/A for the 2nd Respondent.** **N/A for the Interested Party.** **Court Assistant: Joanne Omondi.**