https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7034

Mwangi t/a Mamalo Auctioneers v Kasyoki & another (suing as the Legal Representatives of the Estate of Eunice Ndinda Kitonyi) & another (Civil Appeal E470 of 2024) [2026] KEHC 7034 (KLR) (Civ) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 7034 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E470 of 2024 WA Okwany, J May 14, 2026 Between Naomi Wanjiku Mwangi t/a Mamalo Auctioneers Appellant and Januaris Kiko Kasyoki & Boniface Kasyoki Ngui (suing as the Legal Representatives of the Estate of Eunice Ndinda Kitonyi) 1st Respondent Bernard Muturi Mwangi alias Michael Muturi 2nd Respondent (Being an appeal from the Ruling of Hon. A. Nyoike (SPM) delivered on 8th April 2024 in Milimani CMCC No. E805 of 2022) Judgment Background 1.The 1st Respondents sued the 2nd Respondent in Milimani CMCC No. E805 of 2022 for damages arising from a fatal road traffic accident involving the deceased and motor vehicle registration number KCB 893M. Judgment was entered in favour of the 1st Respondents on 8th August 2023 for Kshs. 993,550/=. 2.The 1st Respondents instructed the Appellant, a licensed auctioneer, to execute the decree pursuant to execution proceedings. Warrants of attachment and sale were issued to the Appellant who proclaimed and attached motor vehicles registration numbers KCB 893M and KBV 243A. 3.The Appellant states that motor vehicle KCB 893M was lawfully sold through public auction in accordance with the Auctioneers Act and Auctioneers Rules, 1997, and that proceeds amounting to Kshs. 469,500/= were remitted to the decree-holder’s advocates after deduction of lawful auctioneer’s fees. The Appellant further avers that motor vehicle KBV 243A was released back to the 2nd Respondent and was never sold. 4.A consent dated 5th February 2024 was subsequently entered into between the parties in the lower court and adopted as an order of the court on 22nd February 2024. The consent provided, inter alia:a.That motor vehicle KBV 243A be placed at Central Police Station;b.That the purported sale and transfer of motor vehicle KCB 893M be rescinded;c.That the Appellant facilitate return of the vehicles to Central Police Station;d.That the insurer settle the decretal amount and costs; ande.That the insurer negotiate the Appellant’s auctioneer’s fees. 5.The Appellant herein, Naomi Wanjiku Mwangi t/a Mamalo Auctioneers, challenged the trial court’s orders directing her to comply with a consent order dated 5th February 2024 and adopted as an order of the court on 22nd February 2024. 6.The Appellant further contested the trial court’s decision to deny her audience until compliance with the impugned consent order despite the fact that she was not a party to the proceedings. 7.The Appellant contended that the consent was recorded without disclosing to the court that motor vehicle KCB 893M had already been sold and the proceeds therefrom remitted to the decree-holder’s advocates and further, that motor vehicle KBV 243A had already been returned to the 2nd Respondent. 8.Upon learning of the consent order, the Appellant filed a Notice of Motion dated 21st March 2024 seeking joinder as an interested party and the setting aside of the consent order. The Appellant contends that before the application could be heard, the trial court directed her to comply with the consent order and denied her audience until compliance. The Appeal 9.Aggrieved by the trial court’s said orders, the Appellant lodged the present appeal in which she faults the learned trial magistrate for erring: -a.In directing the Appellant to comply with a consent order in proceedings to which she was not a party;b.In failing to formally enjoin the Appellant before issuing coercive directions against her;c.In failing to hear and determine the Appellant’s Notice of Motion dated 21st March 2024 before directing compliance;d.In denying the Appellant the right to be heard;e.In failing to appreciate that the subject vehicles had already been dealt with before the consent order was recorded;f.In relying on extraneous matters not forming part of the evidence before the court;g.In issuing orders contrary to the rules of natural justice and Article 50 of the Constitution. 10.The Appellant seeks orders to set aside the impugned orders issued on 8th April 2024 and remittal of the matter for hearing before a different magistrate. 11.The appeal was canvassed by way of written submissions which I have considered. The Appellant’s Submissions 12.The Appellant submitted that a consent judgment or order binds only parties to the proceedings or persons claiming under them. She argued that she was neither a party to the suit nor a signatory to the consent recorded on 5th February 2024. Reliance was placed on the decisions in Flora N. Wasike vs. Destimo Wamboko [1988] eKLR, Board of Trustees National Social Security Fund vs. Michael Mwalo [2015] eKLR; and Kenya Commercial Bank Ltd vs. Specialized Engineering Co. Ltd [1982] KLR 485 for the proposition that a consent judgment has contractual effect and may only be set aside on grounds such as fraud, collusion, illegality, mistake, misrepresentation, or material non-disclosure. 13.The Appellant submitted that the consent herein was procured through material non-disclosure and misrepresentation because the court was not informed that motor vehicle KCB 893M had already been sold through a lawful public auction and that the proceeds had already been remitted to the decree-holder’s advocates; and further, that motor vehicle KBV 243A had already been released to the 2nd Respondent. 14.The Appellant further submitted that the decree-holder’s advocate was fully aware of those facts when the consent was recorded. 15.The Appellant argued that had the trial court afforded her an opportunity to be heard, it would have established that the consent order had already been overtaken by events and could not be implemented. 16.On fair hearing, the Appellant submitted that her application dated 21st March 2024 remained pending and undetermined when the trial court directed compliance with the consent order and barred her from being heard. Reliance was placed on Article 50(1) of the Constitution which guarantees every person the right to a fair hearing. The Appellant argued that the trial court condemned her unheard thus violating the rules of natural justice. 17.The Appellant further submitted that the learned magistrate acted illegally and improperly by issuing orders directed at the Appellant before formally enjoining her to the proceedings. The Respondents’ Submissions 18.The Respondents opposed the appeal and submited that the Appellant acted as an agent of the decree-holder in the execution proceedings and was therefore subject to lawful court orders arising therefrom. 19.The Respondents contended that the stay orders had been issued and communicated to the Appellant but that despite the stay orders, the Appellant irregularly released motor vehicle KBV 243A and purported to sell motor vehicle KCB 893M after stay orders had been granted. 20.The Respondent added that transfer documents were lodged after communication of the stay orders and that the National Transport and Safety Authority (NTSA) records revealed discrepancies between the purchaser named in the certificate of sale and the actual transferee. 21.The Respondents further alleged that the Appellant engaged in unofficial arrangements involving payment of Kshs. 120,000/= for release of the vehicles. 22.The Respondents submitted that the consent order merely sought to rectify irregular execution processes, restore the parties to their lawful positions, and secure payment of the decretal sum while preserving the Appellant’s auctioneer’s fees. 23.On the issue of denial of audience, the Respondents submitted that the Appellant was in contempt of court orders and could properly be denied audience until she purged the contempt. 24.The Respondents relied on Hadkinson vs. Hadkinson [1952], Teachers Service Commission vs. Kenya National Union of Teachers & 2 Others [2013] eKLR; and Econet Wireless Ltd vs. Minister for Information & Communication of Kenya & Another [2005] eKLR for the proposition that a contemnor may be denied audience until contempt is purged. 25.The Respondents further relied on Mbogo & Another vs. Shah [1968] EA 93 and submitted that an appellate court should not interfere with the discretion of the trial court unless it is shown that the court misdirected itself or acted on wrong principles. 26.The Respondents urged the court to uphold the consent order and dismiss the appeal with costs. Issues for Determination 27.Having considered the memorandum of appeal, the record of appeal, and the submissions by counsel, I find that the following issues arise for determination:a.Whether the trial court erred in directing the Appellant to comply with a consent order in proceedings to which she was not a party;b.Whether the Appellant was denied the right to be heard;c.Whether the orders issued on 8th April 2024 ought to be set aside. Analysis and Determination 28.It is trite law that a consent judgment or order has contractual effect and binds only parties thereto or persons claiming under them. In Flora N. Wasike vs. Destimo Wamboko [1988] eKLR, the Court of Appeal held that a consent judgment can only be set aside on grounds that would justify setting aside a contract, such as fraud, mistake, collusion, or misrepresentation. 29.Similarly, in Kenya Commercial Bank Ltd vs. Specialized Engineering Co. Ltd [1982] KLR 485, the court held that a consent order entered into by counsel is binding on all parties to the proceedings unless it is shown that it was obtained through fraud, collusion, or misrepresentation. 30.The record shows that the Appellant was not a formal party to the proceedings at the time the consent was recorded on 5th February 2024. The consent nevertheless imposed obligations directly upon the Appellant, including facilitating return of the motor vehicles and compliance with execution-related directives. 31.The Appellant contended that the trial court was not informed that the vehicles had already been dealt with and that proceeds of sale had already been remitted to the decree-holder. The Respondents, on the other hand, maintained that the consent merely sought to rectify unlawful execution processes arising from the Appellant’s conduct as auctioneer. 32.The court notes that the Appellant had filed a formal application seeking joinder and setting aside of the consent order before the impugned directions were issued. 33.Article 50(1) of the Constitution guarantees every person the right to have any dispute resolved in a fair and public hearing before a court or tribunal. 34.The record shows that the Appellant’s application dated 21st March 2024 seeking joinder and setting aside of the consent order was pending when the trial court directed compliance with the consent order and barred the Appellant from being heard until compliance. 35.The Respondents submitted that the Appellant was in contempt of court orders and could properly be denied audience pursuant to the principles set out in Hadkinson vs. Hadkinson [1952] and reaffirmed in Econet Wireless Ltd vs. Minister for Information & Communication of Kenya & Another [2005] eKLR. 36.The Appellant however maintained that she had not yet been heard on whether the consent order lawfully bound her and whether the allegations of contempt were sustainable. 37.I find that the right to be heard is a cardinal principle of natural justice and that any limitation thereof must be exercised cautiously and within the confines of the law. 38.The appellate court may interfere with the discretion of a trial court where it is shown that the court misdirected itself, acted on wrong principles, failed to consider relevant matters, or reached a plainly wrong decision as stated in Mbogo & Another vs. Shah [1968] EA 93. 39.In the present matter, I note that the impugned orders were issued while the Appellant’s application seeking joinder and setting aside of the consent order remained pending and undetermined. 40.I further note that the consent order imposed obligations upon a person who was not formally a party to the proceedings at the time it was recorded. 41.My finding is that in the circumstances of this case, the issues raised by the Appellant concerning the effect of the consent order, alleged material non-disclosure, and the legality of the execution process required substantive interrogation upon hearing all parties. 42.I find that the Appellant ought to have been accorded an opportunity to prosecute her application dated 21st March 2024 before coercive directions were issued against her. 43.Accordingly, I make the following final orders:a.The appeal is hereby allowed.b.The orders issued on 8th April 2024 directing the Appellant to comply with the consent order before being heard are hereby set aside.c.The Appellant’s Notice of Motion dated 21st March 2024 shall be heard and determined on merit before a magistrate other than Hon. A. Nyoike.d.Costs of the appeal shall abide the outcome of the application before the lower court.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF MAY 2026.HON W. A. OKWANYJUDGEIn the presence ofThuku for AppellantMs Kasyoka Gachoka for 1st RespondentAbdirzak - Court Assistant