Nderitu t/a Jogan Dries Auctioneers & another v Hirsi & 2 others (Environment and Land Appeal E154 of 2025) [2026] KEELC 5373 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI** **ELC APPEAL NO. E154 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 Ruling and Order of Hon. M. A. Otindo (Ms.), Principal Magistrate, delivered on 30th July 2025 in Milimani MCELC Misc. Application No. E163 of 2025)*** **JUDGMENT** 1. Before the Court is the appeal of the 2nd Appellant, Saadia Madey Adan, brought by a Memorandum of Appeal dated 18th August 2025, against the whole of the Ruling and the Order of Hon. M. A. Otindo (Ms.), Principal Magistrate, delivered on 30th July 2025 in Milimani MCELC Misc. Application No. E163 of 2025. 2. A word is necessary on nomenclature, because the designation of the parties in the subordinate court differs from that in the title of this appeal. In the court below, the 2nd Respondent herein, Osman Ali Mohamed, was the Interested Party/Applicant; the 1st Appellant herein was the 1st respondent; the 2nd Appellant herein was the Landlady/2nd respondent; the 1st Respondent herein, Abdullahi Sheikh Hirsi, was the Tenant/3rd respondent; and the Officer Commanding Station, Eastleigh North Police Station, was the 4th respondent. In this judgment I use the designations appearing in the title of the appeal, and where it aids clarity I refer to the parties by name or by description. **Background** 1. The 2nd Appellant is the registered proprietor of all that parcel of land known as L.R. No. 36/1/1033, situate in Eastleigh, Nairobi. The 1st Respondent was her tenant on that parcel. He fell into arrears of rent in the sum of Kshs. 810,000/-. 2. By instructions dated 8th May 2025, the 2nd Appellant instructed the 1st Appellant, a licensed auctioneer trading as Jogan Dries Auctioneers, to levy distress for rent. On 9th May 2025 the 1st Appellant issued a Proclamation Notice, prepared under the Sale of Movable Property Form, listing the following items: three sofa sets valued at Kshs. 35,600/-; one computer valued at Kshs. 15,000/-; five office chairs valued at Kshs. 47,500/-; a water dispenser valued at Kshs. 18,500/-; a wall clock valued at Kshs. 5,000/-; and an air compressor valued at Kshs. 60,000/-. The condition of each item was recorded as fair. The notice records that the tenant declined to append his signature. 3. Access to the premises having allegedly been denied, the 1st Appellant moved the subordinate court by a Notice of Motion dated 12th June 2025, expressed to be brought under Order 51 Rule 1 of the Civil Procedure Rules, 2010, section 3A of the Civil Procedure Act and the Auctioneers Act, 1996. The motion sought two substantive prayers only: that the Officer Commanding Station, Eastleigh North Police Station, be authorised to assist the 1st Appellant to execute instructions to levy distress on the premises occupied by the tenant on L.R. No. 36/1/1033 and to remove the proclaimed movable assets; and that the said officer supervise the exercise for purposes of maintaining law and order. The motion was filed as a miscellaneous cause, being Milimani MCELC Misc. Application No. E163 of 2025. 4. On 16th June 2025 the trial court heard the motion ex parte and allowed it in terms of those two prayers. The order as extracted carries an express qualification in capitals: *“PROVIDED IT IS UNDERSTOOD THAT THIS IS NOT AN ORDER FOR EVICTION OR DEMOLITION.”* 1. On 11th July 2025 the 1st Appellant issued notifications of sale by public auction, advertising a sale to be held on 21st July 2025. The items advertised were 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/-. The advertisement identified the situs of both motor vehicles as L.R. No. 36/1/1033, Nairobi, and indicated that KBJ 855J was to be sold in situ at Eastleigh while KAR 100H was to be sold at a yard along Kiambu Road. 2. Also on 11th July 2025, Osman Ali Mohamed, the 2nd Respondent herein, moved the trial court by a Notice of Motion of even date, filed in the same miscellaneous cause and expressed to be brought under sections 1, 1A, 1B, 3A, 63 and 64 of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, 2010. He sought, in substance: that he be enjoined in the proceedings; that the order of 16th June 2025 be stayed, set aside or vacated; a mandatory injunction commanding the 1st Appellant to release and return goods said to have been illegally attached from his parcel of land, L.R. No. 36/1/1034; an order prohibiting the disposal, transfer or alienation of those goods; that the 1st Appellant, the 2nd Appellant and the Officer Commanding Station be cited for contempt of court and summoned to show cause why they should not be committed to civil jail; and that he be reinstated into his property and his business unconditionally. 3. His case, on his supporting affidavit sworn on 11th July 2025 and his further affidavit sworn on 17th July 2025, was that he had operated an open-air garage on L.R. No. 36/1/1034 since 1997; that he was not, and had never been, the tenant of the 2nd Appellant; that he did not know the 1st Respondent and had no landlord and tenant relationship with him; that on the morning of 11th July 2025 he was violently evicted and his tools of trade, several motor vehicles and spare parts were carried away; that the 2nd Appellant's parcel was adjacent to his own and that the distress ought to have been levied on L.R. No. 36/1/1033 and not on his L.R. No. 36/1/1034; and that there subsisted an order of the Court of Appeal made on 4th March 2024 in Civil Application No. E467 of 2023 maintaining the status quo in respect of L.R. No. 36/1/1034 pending the hearing and determination of Civil Appeal No. E936 of 2023. 4. The application was supported by affidavits of Gidraph Mwangi and Collins Siema, said to be mechanics employed at the garage, and of Abdullahi Mahum Abdalla, all sworn on 18th July 2025, to the effect that a group of persons came to the garage with breakdown vehicles and carted away motor vehicles and spare parts. It was further supported by an affidavit of Ahmed Salat Ainte sworn on 21st July 2025 deposing that he was the beneficial owner of motor vehicle registration number KAR 100H, that he had no relationship with the tenant, and that he had left the vehicle at the 2nd Respondent's garage. A further affidavit sworn on 21st July 2025 addressed the discrepancy between the name Osman Ali Mohamed used in the proceedings and the name Mohammed Essman Ali appearing on the national identity card exhibited. 5. The application was opposed by a replying affidavit sworn on 16th July 2025 on behalf of the 2nd Appellant, which asserted that the identity of the applicant was in doubt; that pursuant to instructions of 8th May 2025 the 1st Appellant proceeded to L.R. No. 36/1/1033 on 9th May 2025 and proclaimed, attached and advertised the goods for sale by public auction; that rent had been collected from the tenant on those same premises; and that the deponent was a stranger to the allegations concerning another property. 6. Of some significance, and in the same miscellaneous cause, the 1st Respondent the tenant himself moved the trial court by a Notice of Motion dated 15th July 2025 seeking a temporary injunction restraining the sale by public auction of motor vehicles registration numbers KAR 100H and KBJ 855J. The certificate of urgency in support states, in terms, that “the Applicant will suffer irreparable loss as the said attached Motor vehicle belongs to third party (his client)”. The tenant also indicated a willingness and readiness to pay the rent arrears of Kshs. 810,000/-. 7. On 17th July 2025 the trial court, by consent, stayed the sale slated for 21st July 2025 pending inter partes hearing. The applications were canvassed by way of oral submissions on 21st July 2025. On 24th July 2025 a consent was recorded by which the 1st Respondent undertook to settle the rent arrears of Kshs. 810,000/- by two cheques in the sums of Kshs. 410,000/- and Kshs. 400,000/- respectively, together with auctioneer's charges of Kshs. 81,000/-. Ruling was reserved and delivered on 30th July 2025. **The impugned ruling** 1. The trial court framed two issues, namely, 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 further affidavit sworn on 21st July 2025 settled the contest as to the applicant's identity, and that since the replying affidavit had raised no objection to the prayer for joinder, that prayer would be granted. 3. The court then set out sections 3 and 4 of the Distress for Rent Act and Rule 12 of the Auctioneers Rules, Legal Notice No. 120 of 1997. Comparing the Proclamation Notice of 9th May 2025 with the notifications of sale of 11th July 2025, it found that the notifications “did not include any of the items proclaimed but included other items being assorted scrap metals KAR 100H and KBJ 855J”. It held that, by Rule 12(2)(b), the 1st Appellant ought to have filed a fresh application for leave to attach other movable property, and that having failed to do so, the attachment and advertisement for sale were “unprocedural and an illegality”. 4. On the disputed question of the premises from which the goods were taken, the court observed that the 1st Appellant had denied attaching property on L.R. No. 36/1/1034 and posed the question, “who between the applicant and the 1st Respondent is telling the truth as it seems one word against the other”. Invoking section 107 of the Evidence Act, it reasoned that the applicant's position had been corroborated by three witnesses while the 1st Appellant's position remained uncorroborated, and that the applicant's position was therefore “believable”. It added that it was “quite surprising” that the tenant “remains mum on whether the 1st Respondent went to his property”, having “only submitted that he was ready to pay the rent arrears and nothing more”. It concluded that it was “persuaded to believe” that the 1st Appellant had proceeded to the wrong property and attached what he had not proclaimed. 5. Turning to relief, the court cited **Kenya Breweries Ltd v Washington Okeyo [2002] EA 109** for the principles governing mandatory injunctions and held that this was “a clear case that warrants grant of a mandatory injunction as prayed”. 6. On contempt, the court cited **Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR** and the four elements there set out. It found that the 1st Appellant, the 2nd Appellant and the Officer Commanding Station were aware of the terms of the order of 16th June 2025, that they had not enforced the order as directed but had breached it “by attaching what was not proclaimed and sadly at the wrong property”, and it cited all three for contempt and issued notices to show cause returnable on 24th September 2025. 7. On reinstatement, the court held that there was “sufficient proof uncontested that there exists a court of appeal order in this regard which this court cannot overwrite”. 8. The decree extracted on 30th July 2025 records orders in the following terms: (a) that the applicant be enjoined in the suit as an interested party; (b) that an order issue prohibiting the 1st Appellant from disposing of, transferring or alienating the applicant's goods illegally attached and carried away from the applicant's premises; (c) that a mandatory injunction issue commanding the 1st Appellant to release and return the applicant's goods illegally attached from land described as “LR NO 36/1/0134”, inter alia motor vehicles registration numbers KAH 100H and KBJ 855J, unconditionally and at his own cost; (d) that the 1st Appellant, the 2nd Appellant and the Officer Commanding Station be cited for contempt of the order of 16th June 2025 and that notices to show cause issue against each of them, returnable on 24th September 2025, the contemnors to appear in person; (e) that the subsisting order of the Court of Appeal over L.R. No. 36/1/1034 shall apply as regards prayer 8; and (f) that the 1st and 2nd Appellants bear the costs of the application. **The Appeal** 1. The Memorandum of Appeal advances six grounds, which may be summarised as follows: that the learned trial magistrate erred in law and in fact (i) in enjoining the 2nd Respondent as a party where orders had already been executed; (ii) in granting orders that were already spent and without a suit or a counterclaim; (iii) in granting substantive orders in a miscellaneous file where orders had already been executed and the file closed; (iv) in failing to appreciate the facts and the law relating to the levying of distress and the role of the police; (v) 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 (vi) in failing to consider the evidence on record. 2. The Appellants pray that the appeal be allowed with costs here and below; that the Ruling of 30th July 2025 and the consequential orders be set aside; that the 2nd Respondent's application dated 11th July 2025 be dismissed with costs; and in the alternative that this Court make its own findings. 3. Although the appeal is titled in the names of both Appellants, the Memorandum of Appeal is drawn and expressed as the appeal of the 2nd Appellant alone. The 1st Appellant has not lodged a separate appeal. I return to the consequences of that at the disposition stage of this judgment. 4. Since the filing of the appeal, Idow Trading Co. Ltd has been granted leave to be joined as Interested Party, on the footing that it is the registered proprietor of L.R. No. 36/1/1034, the very parcel over which the 2nd Respondent asserts a claim. **Submissions** 1. The appeal was canvassed by way of written submissions. Only two sets of submissions were filed. 2. I must record, at the outset and with regret, that the 1st Appellant, the 1st Respondent and the 2nd Respondent did not file any written submissions, notwithstanding that each of them was granted time within which to do so and each was duly served. The absence of submissions from the 2nd Respondent is particularly notable: he was the applicant before the trial court, he is the party in whose favour the impugned Ruling was made, and he is therefore the party principally interested in sustaining it. He has placed nothing before this Court in its defence. 3. That default does not, however, relieve this Court of its own duty. An appeal is not allowed merely because it is unopposed, and a first appellate court does not abdicate its function simply because one side is silent. I have accordingly examined the record for myself, and I have tested the Appellant's arguments not only against the reasoning of the learned trial magistrate but also against the case as the 2nd Respondent in fact put it in the court below, where he was fully heard. ***(i) The 2nd Appellant*** 1. The 2nd Appellant's submissions are dated 14th August 2026 and were filed by K. Rukwaro & Co. Advocates. Counsel submits that the proceedings below were a miscellaneous cause commenced by Notice of Motion for police assistance, and not a suit within Order 3 Rules 1 and 2 of the Civil Procedure Rules, 2010; and that substantive and final orders cannot be granted in a miscellaneous application. Reliance is placed on **Rockland Kenya Ltd v Commissioner General of Kenya Revenue Authority & another [2020] eKLR, which cited with approval Witmore Investment Ltd v County Government of Kirinyaga & 3 others [2016] eKLR, and on Kenya Assemblies of God Trustees & another v Daniel Obuya & another, Nairobi ELC Misc. Application No. E014 of 2023.** 2. It is further submitted that the order of 16th June 2025 had been fully executed by the time the application of 11th July 2025 was filed and was therefore spent, the court being functus officio in respect of it, reliance being placed 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.** 3. On contempt, counsel submits that contempt is quasi-criminal in character and must be proved to a standard higher than the balance of probabilities; that the trial court set out the elements from Mweru but never applied the elevated standard to sharply conflicting affidavit evidence; and that it cited the Officer Commanding Station without any separate finding as to what he did or knew, notwithstanding that his role under the order was confined to maintaining law and order. 4. On the facts, counsel submits that the finding that the goods were attached at the wrong premises was against the weight of the evidence; that the order of 16th June 2025 and the proclamation of 9th May 2025 both identified L.R. No. 36/1/1033; that the tenant never disputed that the distress was levied on his own tenancy, admitted the arrears and recorded a consent to pay them; that the tenant has confirmed that motor vehicle KBJ 855J belongs not to the 2nd Respondent but to one Mohamed Abdullahi Jire, his customer; that the affidavit of Ahmed Salat Ainte spoke of KAR 100H whereas the order as drawn directs the release of KAH 100H; and that the Court of Appeal order relied upon by the 2nd Respondent was never produced before or scrutinised by the trial court. 5. Finally, counsel relies on the material now placed before this Court by the Interested Party and submits that the 2nd Respondent has been shown to have no proprietary link whatsoever to L.R. No. 36/1/1034, and still less to goods distrained upon the wholly separate parcel L.R. No. 36/1/1033, adopting the reasoning in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR. ***(ii) The Interested Party*** 1. The Interested Party's submissions are dated 12th August 2026 and were filed by C. B. Keya & Co. Advocates. It submits that it, and not the 2nd Respondent, is the registered proprietor of L.R. No. 36/1/1034; that L.R. No. 36/1/1033 belongs to the 2nd Appellant and is adjacent to L.R. No. 36/1/1034; that the 1st Appellant proclaimed and levied distress only on L.R. No. 36/1/1033 and at no time on L.R. No. 36/1/1034; and that there was accordingly no eviction and no levy of distress on the Interested Party's property. 2. It further submits that by a judgment delivered on 28th September 2023 in Milimani ELC Case No. 63 of 2008 (Idow Trading Co. Ltd v Mohamed Jimale) this Court (L. Mbugua, J.) declared the Interested Party the owner of L.R. No. 36/1/1034 and awarded it damages of Kshs. 8,000,000/- against the 2nd Respondent for trespass; and that the 2nd Respondent's appeal against that judgment, Court of Appeal Civil Appeal No. E936 of 2023 (Osman Ali Mohammed v Idow Trading Co. Limited & 2 others), was dismissed with costs on 12th June 2026. It relies on the holding of the Court of Appeal that a temporary occupation licence confers no proprietary interest in land and could not override the proprietary rights of a registered lessee. It also relies on Nguruman Limited v Jan Bonde Nielsen & 2 others (supra). **Analysis and Determination** 1. Having considered the Record of Appeal, the Memorandum of Appeal, the submissions filed and the applicable law, I am of the view that the following issues arise for determination: 2. **Whether the trial court had jurisdiction and competence, in a miscellaneous cause commenced by Notice of Motion for police assistance, to join a stranger to that cause and to grant him substantive and final relief;** 3. **Whether the order of 16th June 2025 was a spent order incapable of being stayed, set aside or vacated in the same proceedings;** 4. **Whether the trial court applied the correct legal framework and the correct standard of proof in making findings of contempt against the Appellants and against the Officer Commanding Station;** 5. **Whether the finding that the 1st Appellant attached goods at the wrong premises was against the weight of the evidence, and whether the trial court considered the totality of the evidence on record;** 6. **What effect, if any, the judgment of the Court of Appeal in Civil Appeal No. E936 of 2023 has upon this appeal; and** 7. **What orders should issue, and who should bear the costs.** 8. This being a first appeal, the duty of this Court is to reconsider the evidence, evaluate it itself and draw its own conclusions. 9. In the present case that qualification carries little weight. No viva voce evidence was taken in the court below. The application of 11th July 2025 was determined wholly upon affidavit evidence and oral submissions of counsel. Where the material before the trial court was entirely documentary and on affidavit, this Court is in as good a position as the trial court to assess it. 10. To the extent that the impugned Ruling involved the exercise of judicial discretion in particular the grant of the mandatory injunction I remind myself of the well-known principle in **Mbogo & another v Shah [1968] EA 93,** that an appellate court will not interfere with the exercise of discretion unless it is satisfied that the trial court misdirected itself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the trial court was clearly wrong and that as a result there has been an injustice. ***(ii) Competence: substantive relief in a miscellaneous cause*** 1. Order 3 Rules 1 and 2 of the Civil Procedure Rules, 2010 prescribe the modes by which a suit may be instituted, namely by plaint, by originating summons or in such other manner as may be prescribed. A miscellaneous application taken out by Notice of Motion is not among them. 2. The proceedings below were, and to date remain, designated “MCELCMISC No. E163 of 2025”. They were commenced by a Notice of Motion which sought a single, narrow and essentially facilitative order: that a police officer assist and supervise a licensed auctioneer in executing a private instruction to levy distress on identified premises. There was no plaint. There was no defence. There were no pleadings at all in which any issue between the 2nd Respondent and either Appellant was, or could be, joined. 3. In Rockland Kenya Ltd v Commissioner General of Kenya Revenue Authority & another (supra), the court held that substantive orders cannot be issued in a miscellaneous application, citing with approval the observation of Limo, J. in Witmore Investment Ltd v County Government of Kirinyaga & 3 others (supra) that where a party seeks an order which in effect appears to resolve with finality an issue in controversy, the application ceases to be interlocutory and it is a misconception to describe it as such. I respectfully adopt that reasoning. 4. Measured against that principle, the relief granted below was plainly substantive and final. The mandatory injunction commanded the delivery up of specific chattels to the 2nd Respondent as “the applicant's goods”. That order necessarily determined, and determined finally, that the chattels belonged to him and that they had been wrongfully taken. The prohibitory order restraining disposal was expressed without limit of time. The order preserving the position under prayer 8 touched upon possession of land. Those are not interlocutory measures; they are the very reliefs which a plaintiff in a suit for conversion, or for trespass to land, would seek at the conclusion of a trial. 5. Nor is this a case of form over substance. The consequences of the course taken are practical and serious. There were no pleadings by which the 2nd Respondent's claim could be defined, no discovery, no inventory of the goods said to have been taken, no oral evidence and no cross-examination. Two persons other than the 2nd Respondent Ahmed Salat Ainte and, on the tenant's account, Mohamed Abdullahi Jire asserted ownership of the very vehicles in issue and were not before the court as parties. The 2nd Appellant, against whom coercive orders and a citation for contempt were made, had no opportunity to test on oath the accounts advanced against her. The procedural protections which a suit affords were simply absent. 6. I should not, however, be understood to hold that a court is powerless where its own order is said to have been exceeded. It is not. Every court retains an inherent jurisdiction, preserved by section 3A of the Civil Procedure Act, to prevent abuse of its process and to ensure that its orders are not turned into instruments of injustice. Had the trial court confined itself to examining whether the order of 16th June 2025 had been executed according to its terms, and to any narrow consequential measure necessary to hold the position pending a properly constituted claim, it would have been comfortably within its province. Indeed, its finding of non-compliance with Rule 12 of the Auctioneers Rules, to which I return below, was a legitimate exercise of that supervisory function. 7. What the trial court could not do was convert a spent, narrow miscellaneous cause into a trial of a stranger's claim in conversion and to possession of a different parcel of land. The difficulty is betrayed by the language of its own decree, which records that the applicant be “enjoined in the suit as an interested party”. There was, properly speaking, no suit in which to enjoin him. 8. Grounds 1 and 3 accordingly succeed. ***(iii) Whether the order of 16th June 2025 was spent*** 1. The proposition of law advanced under this ground is unimpeachable. An order which has been fully executed is spent, and the court which made it is thereafter functus officio in respect of it: Telkom Kenya Limited v John Ochanda (supra); Mombasa Bricks & Tiles Ltd & 5 others v Arvind Shah & 7 others (supra). A party aggrieved by the manner in which a concluded process was carried out must ordinarily commence fresh proceedings, and not seek to resurrect a concluded file. 2. The difficulty is that the proposition does not fit the facts. On the 2nd Respondent's own case, the removal of which he complains took place on the morning of 11th July 2025, and the very application by which he moved the court was filed on that same day. The sale by public auction, which was the culmination of the process the order was designed to facilitate, had not taken place; it was advertised for 21st July 2025 and was in the event stayed by consent on 17th July 2025. An order which is in the course of being executed is not a spent order. 3. There is a second answer. The trial court did not in fact grant prayer 3 of the application. Its final orders, as extracted, do not stay, set aside or vacate the order of 16th June 2025. The complaint that it granted “orders that were already spent” is therefore not borne out by the decree. 4. Ground 2 fails. ***(iv) The findings of contempt*** 1. Contempt of court is quasi-criminal in character. It exposes the person cited to committal to civil jail, that is to say, to the loss of liberty. It has long been settled in this jurisdiction that the standard of proof in contempt proceedings is higher than the ordinary civil standard. In **Mutitika v Baharini Farm Limited [1985] KLR 229** the Court of Appeal held that the standard of proof in contempt proceedings must be higher than proof on a balance of probabilities, almost but not exactly beyond reasonable doubt. 2. The learned trial magistrate cited Samuel M. N. Mweru & Others v National Land Commission & 2 others (supra), and in doing so reproduced the very passage which states that the applicant must prove the four elements “to the required standard (in civil contempt cases which is higher than civil cases)”. Having set out that standard, however, the Ruling nowhere applies it. 3. What the Ruling in fact does is to resolve an acknowledged conflict of untested affidavit evidence by preferring one account to the other. The court asked itself “who between the applicant and the 1st Respondent is telling the truth as it seems one word against the other”, answered that the applicant's position was “corroborated” by three deponents while the respondent's position “remains uncorroborated”, and concluded that the applicant's position was “believable” and that it was “persuaded to believe” him. That is, with respect, the language and the method of the balance of probabilities. Corroboration by three deponents who are themselves interested, and none of whom was cross-examined, does not transform a contested allegation into proof to the contempt standard. 4. Where a court proposes to make a quasi-criminal finding upon irreconcilable affidavit evidence, the proper course is either to direct that the deponents be cross-examined, as Order 19 Rule 2 of the Civil Procedure Rules permits, or to decline to make the finding. It is not open to the court to resolve the conflict on the papers and then attach penal consequences to the result. 5. There are further difficulties with the contempt findings, each of which is independently fatal. 6. First, the first element in Mweru is that the terms of the order were clear, unambiguous and binding on the alleged contemnor. The order of 16th June 2025 was addressed to the Officer Commanding Station, directing him to assist and to supervise. It conferred an authority upon the 1st Appellant. It contained no prohibition addressed to the 2nd Appellant at all. She is not shown by the record to have been present at the premises on 11th July 2025, nor to have given any instruction beyond her instructions of 8th May 2025 to levy distress upon her own parcel. A finding of contempt is personal; it requires proof of the alleged contemnor's own deliberate breach. It cannot be founded upon the bare fact of a principal and agent relationship with an auctioneer said to have exceeded his warrant. 7. Secondly, as regards the Officer Commanding Station, the Ruling contains no separate finding whatsoever as to what he is said to have done or known. His role under the order was expressly confined to supervising “for purposes of maintaining law and order”. He was not made the guarantor of the accuracy of the auctioneer's proclamation, and the Ruling does not explain how a police officer maintaining order at the scene came to be in breach of an order directed to him in those terms. 8. Thirdly, the fourth Mweru element that the conduct was deliberate is not addressed in the Ruling at all. 9. Ground 4 succeeds. The findings of contempt, and the notices to show cause consequent upon them, cannot stand. ***(v) The finding as to the premises, and the evidence on record*** 1. I begin by affirming what was, in my respectful view, a proper finding. Comparing the Proclamation Notice of 9th May 2025 with the notifications of sale of 11th July 2025, the trial court found that the items advertised assorted scrap metals, KAR 100H and KBJ 855J were not among the items proclaimed, and that no leave had been sought under Rule 12(2)(b) of the Auctioneers Rules to attach other movable property. That finding is amply supported by the documents on the record. To that extent the attachment and advertisement of unproclaimed items was irregular, and the trial court was entitled to say so. 2. But two quite distinct propositions must be kept apart. That the 1st Appellant attached items falling outside his proclamation is one thing. That he did so at premises other than L.R. No. 36/1/1033 is quite another. The second does not follow from the first. An auctioneer may exceed his proclamation at the correct premises just as readily as at the wrong ones. The Ruling appears to reason from the established irregularity to the disputed location, and that, with respect, is a non sequitur. 3. On the disputed question of location, there was a substantial body of material pointing the other way which the Ruling does not engage with at all: (a) the order of 16th June 2025 authorised distress specifically and only upon L.R. No. 36/1/1033, being the premises occupied by the tenant; (b) the Proclamation Notice of 9th May 2025 was issued in respect of that same parcel, upon the express instructions of the 2nd Appellant, its registered proprietor; (c) the 1st Appellant's own notification of sale of 11th July 2025 the very document upon which the trial court relied to establish the Rule 12 irregularity records the situs of both motor vehicles as L.R. No. 36/1/1033, Nairobi; (d) the 2nd Appellant exhibited a plan showing the relative positions of the two adjoining parcels; and (e) most tellingly, the 1st Respondent the tenant on L.R. No. 36/1/1033, and the person best placed of anyone to say whether distress was levied on his own premises never suggested that it had been levied elsewhere. 1. On that last point the Ruling is, with respect, materially inaccurate. The trial court held it “quite surprising that the tenant … remains mum on whether the 1st Respondent went to his property as the intended tenant to be distressed, he only submitted that he was ready to pay the rent arears and nothing more”, and used that supposed silence to tip the balance against the Appellants. 2. The tenant was not mum. His own Notice of Motion dated 15th July 2025, filed in the same miscellaneous cause and forming part of the same record, sought to restrain the sale of the very two motor vehicles, KAR 100H and KBJ 855J, upon the express footing that the attached motor vehicle “belongs to third party (his client)”. That application asserted, in terms, a competing account of the ownership of the goods which the court was about to order released to the 2nd Respondent. Far from saying nothing, the tenant advanced a positive case which was flatly inconsistent with the 2nd Respondent's. Had the trial court had regard to it, the premise upon which its reasoning turned would have fallen away. That is a failure to consider material evidence properly on the record. 3. To the same effect is the tenant's conduct. He admitted the arrears of Kshs. 810,000/- and, on 24th July 2025 and before the Ruling was delivered, recorded a consent to pay them together with auctioneer's charges of Kshs. 81,000/-. A tenant who accepts that distress was lawfully levied against him, and pays for it, is not readily to be understood as saying that the auctioneer went to somebody else's premises. 4. There is a further and, in my view, decisive difficulty with the mandatory injunction. Order (c) of the decree commands the release and return of “the applicants goods … inter alia motor vehicle registration number KAH 100H and KBJ 855J”. On the material before the trial court, the 2nd Respondent proved ownership of neither vehicle. As to the first, the only evidence of ownership was the affidavit of Ahmed Salat Ainte sworn on 21st July 2025, deposing that he was its beneficial owner and had merely left it at the garage. As to the second, the tenant's evidence was that it belonged to his customer, Mohamed Abdullahi Jire. The 2nd Respondent produced no logbook, no registration record and no other proof of title to either vehicle. An order directing that goods be delivered up to a person who has not shown that they are his cannot be sustained. 5. Compounding this, the order lacks the certainty which an order for the delivery up of specific chattels requires. The affidavit evidence and the advertisement alike refer to KAR 100H; the order as drawn directs the release of KAH 100H. The order also describes the land as “LR NO 36/1/0134”, which is not a parcel identified anywhere in the proceedings. Neither discrepancy is addressed in the Ruling. 6. Finally, on relief, the trial court correctly directed itself by reference to Kenya Breweries Ltd v Washington Okeyo (supra) that a mandatory injunction will not ordinarily 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 stated that test, it then found the case to be “a clear case”. Yet only a few lines earlier the same court had described the evidence as “one word against the other”. A case which the court itself characterises as one word against the other is, by definition, not a clear case. That is a misapplication of the very test the court had set for itself. 7. Grounds 5 and 6 accordingly succeed. ***(vi) The effect of the judgment in Court of Appeal Civil Appeal No. E936 of 2023*** 1. The Interested Party has placed before this Court a certified copy of the judgment of the Court of Appeal (Musinga, Mumbi Ngugi and Odunga, JJ.A.) delivered on 12th June 2026 in Civil Appeal No. E936 of 2023, Osman Ali Mohammed v Idow Trading Co. Limited & 2 others, being an appeal from the judgment of this Court (L. Mbugua, J.) delivered on 28th September 2023 in ELC Case No. 63 of 2008. 2. The Court of Appeal dismissed the appeal with costs. It held, at paragraph 53 of its judgment, that a temporary occupation licence does not create or confer any proprietary interest in land, that such a licence, particularly one that had been terminated, could not override the proprietary rights of a registered lessee, and that the trial court had correctly concluded that Idow Trading Co. Limited's interest had crystallised into full proprietary rights and that the present 2nd Respondent was in unlawful occupation of the suit property, L.R. No. 36/1/1034. It declined to interfere with the award of Kshs. 8,000,000/- in general damages for trespass. 3. That judgment postdates both the impugned Ruling and the Memorandum of Appeal, and 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 should the Court consider it necessary. In my view it is not necessary. The copy exhibited bears the certification of the Deputy Registrar; no party has disputed its authenticity; and it is in any event a decision of a superior court of record by which this Court is bound. An appellate court would moreover be acting artificially if, in deciding what order ought now to be made, it shut its eyes to an authoritative determination which has removed the foundation of the relief granted below. I take it into account. 4. Two consequences follow. First, the order of the Court of Appeal made on 4th March 2024 maintaining the status quo over L.R. No. 36/1/1034 was expressly made pending the hearing and determination of Civil Appeal No. E936 of 2023. That appeal having been heard and determined on 12th June 2026, the order has spent itself by its own terms. Order (e) of the impugned decree, which preserved that order in answer to prayer 8, can therefore have no further operation. 5. Secondly, the 2nd Respondent's claim to a proprietary or occupational interest in L.R. No. 36/1/1034 has now been conclusively rejected at the highest level at which it could be litigated. He is not, and since at latest 28th September 2023 has not been, a person entitled to occupy that parcel. The premise upon which he moved the trial court that he was lawfully in occupation and entitled to be reinstated has fallen away entirely. 6. I would not wish it to be thought, however, that a person without an interest in land can never complain of interference with his goods. Title to chattels is independent of title to land, and even a trespasser may own the chattels standing upon the land he unlawfully occupies. Had the 2nd Respondent established ownership of identified chattels wrongfully taken from him, the fact of his unlawful occupation would not by itself have defeated that claim. But, as I have found, he established no such ownership; and the relief he obtained travelled far beyond chattels. 7. In Nguruman Limited v Jan Bonde Nielsen & 2 others (supra), the Court of Appeal interfered with the exercise of discretion where an injunction had been granted “against a party not shown to him to have any links with or played any role between the 1st and 2nd respondents”. The observation is apposite. The 2nd Appellant instructed distress against her own tenant upon her own parcel. She is shown to have had no relationship of any kind with the 2nd Respondent, and no interest in the parcel he claimed. The coercive orders made against her, and the citation for contempt, were undeserved. **Costs** 1. Costs follow the event under section 27 of the Civil Procedure Act, unless for good reason the court orders otherwise. I see no reason to depart from the ordinary rule as between the 2nd Appellant and the 2nd Respondent. The 2nd Respondent set in motion the application which has produced this appeal, obtained coercive orders and a citation for contempt against a party with whom he had no relationship, and has not appeared before this Court to defend the Ruling he obtained. **Disposition** 1. In the result, Grounds 1, 3, 4, 5 and 6 of the Memorandum of Appeal succeed. Ground 2 fails. The appeal substantially succeeds and, the surviving grounds going to the root of the impugned Ruling, it must be allowed in full. 2. One matter requires to be addressed before I make the final orders. The Memorandum of Appeal was drawn and filed on behalf of the 2nd Appellant alone; neither the 1st Appellant nor the Officer Commanding Station has appealed. Yet the findings of contempt were made against the 1st Appellant, the 2nd Appellant and the Officer Commanding Station upon a single and indivisible ground the alleged breach of the order of 16th June 2025 and upon a misdirection as to the standard of proof which is common to all three. Where a decree proceeds upon a ground common to several parties, this Court may reverse or vary it in favour of all of them, whether or not they have appealed, and I am satisfied that this is a proper case in which to do so. It would be an affront to justice to discharge the notice to show cause against the 2nd Appellant while leaving identically founded notices standing against the 1st Appellant and the Officer Commanding Station. 3. Accordingly, I make the following orders: 4. **The appeal is allowed.** 5. **The Ruling of Hon. M. A. Otindo (Ms.) delivered on 30th July 2025 in Milimani MCELC Misc. Application No. E163 of 2025, and the Court Order of even date extracted thereon, are hereby set aside in their entirety.** 6. **The Notice of Motion dated 11th July 2025 filed by the 2nd Respondent in Milimani MCELC Misc. Application No. E163 of 2025 is hereby dismissed.** 7. **The findings of contempt made on 30th July 2025 against the 1st Appellant, the 2nd Appellant and the Officer Commanding Station, Eastleigh North Police Station, together with the notices to show cause issued against each of them and all proceedings consequent thereupon, are hereby set aside and discharged.** 8. **For the avoidance of doubt, the order of the Court of Appeal made on 4th March 2024 maintaining the status quo over L.R. No. 36/1/1034 spent itself upon the determination of Civil Appeal No. E936 of 2023 on 12th June 2026, and order (e) of the decree of 30th July 2025 is of no further effect.** 9. **The dismissal of the Notice of Motion dated 11th July 2025 is without prejudice to the right of the 2nd Respondent, if he be so advised, to institute a properly constituted suit in respect of any chattels he claims to have been unlawfully taken from him; and nothing in this judgment shall be construed as determining the merits of any such claim.** 10. **The 2nd Respondent shall bear the costs of this appeal and the costs of the Notice of Motion dated 11th July 2025 in the court below.** 11. **The Interested Party shall bear its own costs.** 12. **The lower court file is hereby remitted to the trial court for closure in terms of this judgment.** **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 and h/b for Mr. Mr. Murage for 1st Appellant.** **N/A for the 1st Respondent.** **N/A for the 2nd Respondent.** **N/A for the Interested Party.** **Court Assistant: Joanne Omondi.**