https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8159

Odongo v Mukoya t/a Yamuko Auctioneers (Miscellaneous Civil Application E021 of 2026) [2026] KEHC 8159 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8159 (KLR) Republic of Kenya In the High Court at Vihiga Miscellaneous Civil Application E021 of 2026 RN Nyakundi, J June 9, 2026 Between Omuhenje Sophie Odongo Applicant and Jairo Ounza Mukoya t/a Yamuko Auctioneers Respondent Ruling 1.What is pending before this Honourable Court for determination is a Notice of Motion application brought under Article 159(2)(d) of the Constitution of Kenya, 2010 and Section 3 and 3A of the Civil Procedure Act where the Applicant is seeking the following orders: -a.Spentb.That the Respondent be directed to avail to the precincts of the court, motor vehicle registration number KDM 396V (hereinafter referred to as “the subject motor vehicle”) during the first mention of this matter.c.That NTSA be restrained by an order of temporary injunction from effecting the transfer of the subject motor vehicle Registration No KDM 396V to third parties.d.That the OCS Kisumu Central Police Station to oversee the implementation of the orders in prayer 2 above.e.That the Respondent who is an auctioneer be cited for contempt for disobeying the orders made on 21st April 2026 in Vihiga CMCC No E140 of 2021.f.That upon finding in prayer 5 above, the Respondent be punished for being in disobedience of the orders.g.The costs hereof be provided for. 2.The Application is premised on the following grounds on the face of it among others: -a.That the Court made the orders dated 21/4/2026 pursuant to an objection filed by the applicants in Vihiga CMCC No E140 of 2021.b.That the Applicant had objected to the attachment of her motor vehicle as she was the registered owner and not party to the suit.c.That the Court made the orders dated 21/4/2026 restraining disposal of the motor vehicle pending the hearing of the objection.d.That on 13/5/2026 the applicant received a message from NTSA informing her of the process of alternative transfer initiated by the Respondent’s agent.e.That the Applicant visited the offices of the corporation and was given document indicating that the Respondent’s agent had initiated the process of transfer.f.That this was a pointer that the Respondent had disobeyed the Court orders in issue.g.That the Auctioneer/Respondent was served with the application and the orders on 22/4/2026.h.That the Plaintiff’s Counsel who instructed the auctioneer/Respondent was equally duly served.i.That this is contempt outside the face of the Magistrate’s Court.j.That it is in this Court upon the declaration of the Contempt of Court Act being unconstitutional that has jurisdiction to punish for contempt. 3.The Application was supported by the annexed Affidavit dated 19th May 2026 sworn by the Applicant. She averred that she was the registered owner of the subject motor vehicle which was one of the properties that were attached in Vihiga PMCC No E140 of 2021 and upon the attachment, she had filed an objection to the attachment. She asserted that she was aware that the court in its directions granted order of stay of sale of the subject motor vehicle and Respondent was served with the said order. She added that the Plaintiff’s Counsel who instructed the Respondent was also served. 4.She was categorical that on 13th May 2026, she received a notification from NTSA that it was in the process of causing the transfer upon the receipt of request dated 13th May 2026 by one Alfred Omondi Kuta. She added that from the documents attached to the request the third party had indicated by evidence of receipt that he purchased motor vehicle from the Respondent at a public auction. 5.She pointed out that the objection proceedings were fixed on 7th July 2026 to confirm filing of submissions and that from her application, she had sought for stay of execution of the decree which stopped the sale of the subject motor vehicle that had been illegally attached. She argued that proceeding to dispose of the subject motor vehicle to a third party, the Respondent was in blatant disobedience of the court orders in issue. 6.She was emphatic that the actions of the Respondent signified lack of respect of court orders and that this court was seized with the necessary authority to grant the orders sought pursuant to Section 5(1) of the Judicature Act. Replying Affidavit 7.The Application was opposed vide a Replying Affidavit dated 25th May 2026 sworn by Jairo Ounza Mukoya, trading as the Yamuko Auctioneers. He denied each and every allegation contained in the Applicant’s Notice of Motion and Supporting Affidavit save for expressed admissions. He averred that the application herein was misconceived, bad in law, incompetent and overtaken by events and the same ought to be dismissed with costs. He asserted that he had proceeded to carry out the execution of the lawful court warrants as there existed lawful execution proceedings arising from Vihiga CMCC No E140 of 2021 wherein Judgment had been entered in favour of the Decree Holder against the Judgment Debtor for the sum of Kshs 1,188,670/=. 8.He argued that pursuant to the said Judgment, warrants of attachment and sale were duly applied for and lawfully issued by the court on 27th March 2026. He added that in execution of the said warrants, he proclaimed the Judgment’s debtor’s attachable property vide a Proclamation Notice dated 1st April 2026. 9.He was categorical that the subject motor vehicle was identified through the relevant insurance policy records as property attachable in execution of the lawful decree. He pointed out that subsequently, the Applicant herein filed an application dated 14th April 2026 principally seeking orders for stay of sale/execution and leave for the firm of Onyango Jonyo & Co Advocates to come on record. He asserted that the said application came up in court on 21st April 2026 where the court only allowed prayer 2, namely, leave for the said firm of advocates to come on record. 10.He was emphatic that contrary to the allegations by the Applicant, no order staying the execution attachment or sale was issued against him. He asserted that the orders issued on 21st April 2026 were not preservatory in nature and did not invalidate, suspend, set aside or stay the lawful execution process already commenced. 11.He further explained that, thereafter, the Counsel acting for the Judgement Debtor expressly instructed the Respondent to proceed with the execution and sale process vide a letter dated 29th April 2026. He added that acting upon the said instructions, he advertised the subject motor vehicle for sale through public auction in the Standard Newspaper advertisement published on 21st April 2026 and that the public auction was conducted on 29th April 2026 in accordance with the law and the Auctioneers Act and Rules thereunder. He asserted that upon conclusion of the public auction on 29th April 2026. He duly issued a Certificate of Sale to the successful purchaser on the same date. 12.It was his contention that once the public auction was concluded and the hammer fell, the Applicant’s alleged equity and/or right of redemption, if any, was extinguished by operation of the law. He was emphatic that the said sale having been concluded prior to the filing of the present application, the orders sought by the Applicant were incapable of enforcement and had been overtaken by events. 13.He was categorical that he did not disobey any court order staying the execution process or restraining the sale by public auction, but acted strictly within the law. He asserted that the Applicant had failed to demonstrate any illegality, fraud, bad faith or procedural impropriety on the part of the Respondent. 14.He further contended that the present application was an abuse of the court process and was merely intended to frustrate and defeat lawful proceedings already concluded. Analysis and Determination 15.A perusal of the record herein indicated that in Vihiga MCCC No E140 of 2021, the Trial Court rendering itself on the directions for the Applicant’s Notice of Motion dated 14th April 2026 on 21st April 2026 ordered as follows: -“It Is Hereby Ordered:1.That Prayer No 2 of the Application is allowed.2.That the Applicant to serve the application upon the Respondent within 7 days of today for inter-parties hearing on 28th April 2026.” 16.It is with respect to the above-mentioned orders that the Applicant herein prayed that the Respondent herein be cited for contempt orders for disobedience of the said orders. It has been stated in a long line of authorities that the reason why courts would punish for contempt was to safeguard the rule of law and to protect the dignity of the court. It was the obligation of every person, against, or in respect of, whom an order was made by a court of competent jurisdiction to obey it unless and until that order was discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believed it to be irregular or void. 17.A party who sought orders for contempt of a court order has to bring an application that meets the threshold which is that an applicant has to demonstrate the terms of the order in question, that the respondent had knowledge of those terms and the respondent wilfully disobeyed the terms of the order. The Halsbury's Laws of England (4th Edition (9th Re-Issue), Pg. 33, para 52.) defines civil contempt as follows: -“...disobedience to process is a civil contempt of court to refuse or neglect to do an act required by a judge or order of the court within the time specified in the judgment order requiring a person to abstain from doing a specified act, or to act in breach of an undertaking given to the court by a person, on the faith of which the court sanctions a particular course of action or inaction...” 18.The court in Milka Wangoi Kamau & another v Habby Misoga Lugadiru [2014] eKLR citing the case of Ringera and 2 others v. Muite and 10 Others HCC at Nairobi, Civil Suit No. 1330 of 1991, the Learned Judge reiterated that the main salient features of disobeying court are:a.The contemnor must be aware of the existence of the court order.b.There must be an existing court order capable of being disobeyed.c.Breach thereof must be proved 19.Civil contempt proceedings, though rooted in civil law, also carry criminal consequences since they may result in the loss of a person’s liberty. For that reason, the evidence presented must be particularly cogent. While the general standard in civil cases is proof on a balance of probabilities, at the stage of committal the applicable threshold may rise to that of criminal cases proof beyond reasonable doubt. In Milka Wangoi Kamau & another v Habby Misoga Lugadiru [supra] it was held that: -“As much as civil contempt is an aspect of civil litigations it has got criminal implications/ inclinations and hence its threshold is not merely founded on balance of probability but at times it must be proved beyond reasonable doubt. Therefore, the committal law is to the effect that the standard of proof required at committal proceedings is the criminal standard” 20.The applicable standard of proof, is above a balance of probabilities, given the criminal connotations of contempt proceeding. In Mutitika v Baharini Farm Ltd [1985] KLR 229, 234, the Court of Appeal made this clear thus: -“…In our view the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to offence which can be said to be quasi- criminal in nature." 21.Upon proof of these requirements, the presence of wilfulness and bad faith on the part of the respondent would normally be inferred. However, the respondent can rebut this inference by contrary proof on a balance of probabilities. The power to punish for contempt is a discretionary one and is to be used sparingly. This is because liberty of the subject was usually at stake and the Respondent has to prove wilful and deliberate disobedience of the court order by the contemnor. Due to the gravity of consequences that ordinarily flow from contempt proceedings, it is proper that the order be served and the person cited for contempt has had personal knowledge of that order and wilfully disobeyed it. 22.There cannot therefore, be deliberate and wilful disobedience unless a contemnor had personal knowledge of the existence of that order and that he had deliberately and wilfully disobeyed as was held in the case of Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] eKLR. The law is very clear that a party whom a court order is directed to by a competent court has no choice other than to first comply with the order even if to the party the order is irregular or before taking any step, if not sure of the import of the court order, the party is supposed to rush back to court and explain its difficulties in complying with the particular court order but not to disregard the order. In Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution and Planning & 3 others [2017] eKLR the court held as follows:“The Court does not, and ought not to be seen to make orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people. A Court order is binding on the party against whom it is addressed and until set aside remains valid and is to be complied with” 23.In this instance case, the Respondent was emphatic that he did not disobey any court order. A perusal of the directions of the court as outlined above indicate that the court did not issue any stay of sale or execution of the subject motor vehicle, as alleged by the Applicant hence, there was no order that was disobeyed by the Respondent. 24.Going further, this court agrees with the Respondent’s argument that the application has been overtaken by events as the same was filed on 19th May 2026 when the sale of the subject motor vehicle took place on 29th April 2026. The only option she had was to follow up with her objection proceedings and in the event she succeeds she may claim back her alleged subject motor vehicle and/or claim for damages. 25.Having said so, this court does not find it prudent to canvass the prayer for a temporary injunction as the same has already been overtaken by events as explained. In view of the foregoing, the Applicant’s Notice of Motion Application dated 19th May 2026 is devoid of merit and the same be and is hereby dismissed with costs to the Respondent. 26.Orders accordingly. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026R. NYAKUNDIJUDGE