Kisoya v Maingi; Auctioneers & 2 others (Interested Parties) (Civil Case 198 of 2019) [2025] KEMC 295 (KLR) (24 November 2025) (Ruling)

Kisoya v Maingi; Auctioneers & 2 others (Interested Parties) (Civil Case 198 of 2019) [2025] KEMC 295 (KLR) (24 November 2025) (Ruling) Neutral citation: [2025] KEMC 295 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case 198 of 2019 YA Shikanda, SPM November 24, 2025 Between Cosmus Muia Kisoya Plaintiff and Celina Karabai Maingi Defendant and Blegif Consult Auctioneers Interested Party James Magoci Ndung’U Interested Party Grace Nkatha Njeru Interested Party Ruling The Applications 1.Before me are two applications filed by different parties. The first application is dated 26/5/2025 and was filed by the intended 2nd interested party. The second application is dated 17/6/2025 and was filed by the 3rd interested party. I have deliberately used the term “intended 2nd interested party” for reasons I will explain later in this ruling. On 18/6/2025 the parties agreed, and the court directed that the two applications would be canvassed simultaneously and by way of written submissions. The parties filed their responses as well as submissions. This ruling is thus in respect of the two applications. The Application Dated 26/5/2025 2.As already indicated, the application was filed by the intended 2nd interested party one James Magoci Ndung’u. The application is said to have been brought pursuant to the provisions of sections 1A, 1B and 3A of the [Civil Procedure Act](/akn/ke/act/1924/3) and Order 22 rules 22, 64, 66, 67 and 70 of the Civil Procedure Rules. The application seeks the following orders, the others having been spent:1.The firm of C.W. Waititu & Company Advocates be granted leave to come on record for the intended 2nd interested party;2.This Honourable court be pleased to order for the cancellation of the transfer of the subject motor vehicle registration number KCT 149B into the names of Grace Nkatha Njeru by the Registrar of National Transport & Safety Authority and the same to revert back to the names of the defendant herein Celina Karabai Maingi;3.Costs of the application be in the cause. 3.The application is supported by the affidavit sworn by the intended 2nd interested party and is premised several grounds appearing on the face of the application. The gist of the grounds contained in both the affidavit and the application is that the intended 2nd interested party placed his bid at an auction of motor vehicle registration number KCT 149B and was declared the highest bidder. That he paid the deposit and was issued with a certificate of sale. Thereafter, he moved to court and obtained a vesting order which directed the National Transport and Safety Authority to register the motor vehicle in his name. That as at 13/5/2025 when the court made orders herein, the motor vehicle was already in possession of the intended 2nd interested party. The motor vehicle was later impounded by the police on allegations that it had been stolen. The intended 2nd interested party attached documents in support of his application. The Plaintiff's response 4.The plaintiff supported the application by filing a Replying affidavit sworn by himself on 14/7/2025. The plaintiff deposed that after the intended 2nd interested party had purchased the motor vehicle at the auction, the defendant fraudulently caused the same to be transferred in the name of the 3rd interested party. The Defendant’s response 5.The defendant opposed the application by filing a Replying affidavit. The defendant deposed that the application was defective and an attempt to distort the truth. That the application was seeking adverse orders against a stranger to the suit without first seeking to join the party. The defendant further deposed that the supporting affidavit was defective as the intended 2nd interested party had deposed to facts outside his knowledge and failed to reference the sources of that knowledge. That the ruling of 13/5/2025 set aside the entire execution process and the consequential orders. The defendant deposed that the 2nd interested party had exposed the fraudulent means employed by the 1st interested party in the execution process. That as at the time the motor vehicle was being sold, there was already a stay order which had been served upon the 1st interested party. The defendant argued that the 2nd interested party was not an innocent purchaser for value as he was in possession of the proclamation and ought to have known that the sale was premature. The defendant urged the court to dismiss the application with costs. 1st interested party’s response 6.No response was filed by the 1st interested party although he was being represented by the same counsel as the plaintiff. 3rd interested party’s response 7.The 3rd interested party did not file a response to the application dated 26/5/2025 although she was made aware of it and was given time to file a response. The Application Dated 17/6/2025 8.The application was filed by the 3rd interested party. The main prayer that is yet to be determined is for release of motor vehicle registration number KCT 149B to the 3rd interested party and costs of the application. The application is supported by the affidavit sworn by the 3rd interested party and grounds appearing on the face of the application. The 3rd interested party relies on the ground that the motor vehicle was transferred to her as the registered proprietor. That the transfer was prompted by the illegal seizure of the motor vehicle by Auctioneers and the court declared the sale as illegal. The 3rd interested party argued that the sale having been nullified, the 2nd interested party had no legitimate claim over the motor vehicle. The Plaintiff’s response 9.The plaintiff opposed the application by filing a replying affidavit sworn by himself. The plaintiff deposed that he obtained judgment herein and when the defendant failed to satisfy the decree, he instructed the 1st interested party to execute. That the execution was lawful and the motor vehicle was sold through a public auction wherein the 2nd interested party emerged as the highest bidder. The plaintiff further deposed that the 3rd interested party was not party to the proceedings and neither did she lay claim over the motor vehicle during the execution process. That the registration of the motor vehicle in the name of the 3rd interested party was done fraudulently and in bad faith with the aim of defeating the interest of the lawful purchaser and interfering with the due process of court. That the defendant had no title capable of transfer as she had lost it through the auction. The plaintiff contended that allowing the application would amount to legitimizing abuse of the court process, frustrating lawful execution and unjustly enriching a person who is a stranger to the proceedings and the decree. The plaintiff urged the court to dismiss the application with costs. The Defendant’s response. 10.The defendant did not file a response to the 3rd interested party’s application. Response by the 1st interested party. 11.No response was filed by the 1st interested party. Response by intended 2nd interested party. 12.The 2nd interested party filed a response in opposition to the application. The 2nd interested party deposed that the prayers sought in the application untenable. That the 3rd interested party had failed to disclose when and how the subject motor vehicle was transferred in her name when at the time of transfer, the motor vehicle was not in possession of the 1st interested party. The 2nd interested party contended that the sale by auction was lawful and procedural. That a court order was obtained vesting the ownership of the motor vehicle in the 2nd interested party. The 2nd interested party deposed that the transfer of the motor vehicle into the name of the 3rd interested party was made after the sale by auction and when the motor vehicle was in possession of the 2nd interested party. That the transfer to the 3rd interested party was made to defeat the execution proceedings. Main Issues For Determination 13.As far as both applications are concerned, in my opinion, the main issues for determination are as follows:i.Whether the court can and should order for the cancellation of the transfer of the subject motor vehicle registration number KCT 149B into the name of Grace Nkatha Njeru by the Registrar of National Transport & Safety Authority and revert the registration to the name of the defendant herein Celina Karabai Maingi;ii.Whether the motor vehicle should be released to the 3rd interested party;iii.What other orders should the court make in respect of the applications?iv.What orders should the court make with respect to costs? Submissions By The Plaintiff. 14.The plaintiff did not file any submissions with respect to both applications. Submissions By The Defendant. 15.The defendant filed joint written submissions to both applications. The defendant submitted that the 2nd interested party’s application was one for review but disguised as an application for reversal of transfer. That the orders made by the court herein on 13/5/2025 have not been reviewed nor appealed against. The defendant argued that the purported sale by auction had been nullified by the court. That the plaintiff had the option of restarting the execution process or applying for review of the ruling made on 13/5/2025 or moving on appeal. The defendant argued that since there is no review or appeal from the ruling of 13/5/2025, no party can raise a cause of action that contradicts the ruling made on 13/5/2025. 16.The defendant further argued that she was not under any legal restraint from transferring the motor vehicle to the 3rd defendant while the execution process was ongoing. That what is not expressly forbidden is by implication permitted. It was further argued that since the purported sale of the motor vehicle had been nullified, nothing stopped the defendant from disposing of the motor vehicle. That the plaintiff and 1st interested party cannot in law be recognized as having passed good title to the 2nd interested party. The defendant argued that the plaintiff and 2nd interested party ought to have first sought to set aside the ruling made on 13/5/2025. 17.The defendant submitted that neither the plaintiff nor the 2nd interested party presented evidence of the nature presented by the 2nd interested party to this Court. That for the Plaintiff to now assert all the interactions were going on in the background between the 1st and 2nd Interested Parties, speaks volumes about the well-orchestrated attempt by the Plaintiff and the 1st interested party to sell off the suit vehicle and even using a Miscellaneous Application before a different judicial officer of the same court while putting up a facade of following due process before the judicial officer in conduct of this suit. The defendant argued that the orders in the miscellaneous applications were obtained when stay orders were in force. 18.The defendant argued that the 2nd interested party’s averments on how he allegedly purchased the suit vehicle are a clear cut revelation of the fraud perpetrated by the plaintiff and his agent, the 1st interested party. That fraud can never vest lawful title on any purchaser. The defendant contended that the 2nd interested party was not an innocent purchaser for value and is therefore incapable of claiming loss from a transaction they engaged in knowing or being expected to have known of its illegality at the onset. That the 2nd interested party never exercised due diligence to qualify as an innocent purchaser for value. The defendant submitted that she willfully and lawfully transferred the suit vehicle to the 3rd interested party. That the allegation of the defendant not being in possession of the suit vehicle is not a legally recognized prerequisite to effect a transfer and thus has no bearing to the transfer procedures thereof. The defendant urged the court to dismiss the 2nd interested party’s application with costs and allow the application by the 3rd interested party. The defendant relied on the following authorities:a.Samuel Kamere v Land Registrar, Kajiado [2015] eKLR;b.Mbugua v Kerre & 2 others [2023] KEELC 18755 (KLR). Submissions By The 1St Interested Party 19.The 1st interested party did not participate in the applications nor file any submissions. Submissions By The 2Nd Interested Party 20.The 2nd interested party filed written submissions. He submitted that he took possession of the motor vehicle on 5/3/2025 following a successful bid at an auction. That there were no stay orders for the execution process. The 2nd interested party submitted that he conducted a search on 4/3/2025 and confirmed that the motor vehicle was registered in the name of the defendant herein. That upon purchasing the motor vehicle, the 2nd interested party obtained a vesting order from court to have the motor vehicle registered in his name. The 2nd interested party contended that he followed the due procedure in obtaining possession of the motor vehicle and maintained that he was an innocent purchaser for value. He argued that the orders made on 13/5/2025 had been overtaken by events as the motor vehicle in issue was not in possession of the 1st interested party. He urged the court to allow his application. The 3Rd Interested Party’s Submissions. 21.The 3rd interested party also filed joint written submissions to both applications. She submitted that this court found that the sale of the motor vehicle was improper and that ordering for transfer of the same to the 2nd interested party will be tantamount to furthering an illegality. That since the motor vehicle has been transferred to a third party, the court lacks basis to interfere with the transfer. Further, that the transfer of the motor vehicle to the 3rd interested party by the defendant was a private affair not sanctioned by the court. As such, the court cannot be called upon to undo what it did not do. The 3rd interested party submitted that the transfer of the motor vehicle into her name was to avoid an imminent fraud. That the 2nd interested party cannot benefit from a flawed process. The 3rd interested party urged the court to dismiss the application by the 2nd interested party and allow her application. Analysis And Determination 22.I have considered the applications, the responses by the parties and given due regard to the submissions made by the parties. As far as the application dated 26/5/2025 is concerned, there is no objection to the firm of C.W. Waititu and company Advocates coming on record for the intended 2nd interested party. I note that the intended 2nd interested party did not include a prayer for him to be joined to the proceedings. It is for that reason that I kept referring to him as the intended 2nd interested party. However, since no objection or concern was raised by either party, I will invoke the provisions of Order 1 rule 10(2) of the Civil Procedure Rules and direct that James Magoci Ndung’u be joined as the 2nd interested party. 23.Contrary to what the defendant and 3rd interested party think, the main prayer by the 2nd interested party is to cancel the registration of the 3rd interested party as owner of motor vehicle registration number KCT 149B and revert the same to the defendant. The 2nd interested party has not sought for registration of his name as proprietor. However, I am sure that is his end game. The record indicates that he already obtained orders for registration of his name as owner of the motor vehicle vide Makindu SPMC Civil Misc. application No E013 of 2025 before another court. 24The 2nd interested party’s interest in the subject motor vehicle in premised on an alleged auction that was conducted in execution of the decree issued herein. There is a misconception by the defendant and the 3rd interested party that this court set aside the sale by public auction. The orders made on 13/5/2025 by this court are clear. For purposes of emphasis, I will reproduce part of my earlier ruling here:The interested party alleged that motor vehicle registration number KCT 149 B was sold already by public auction. That the sale was advertised in the Standard Newspaper for 25/2/2025. No such evidence was attached to the interested party’s replying affidavit. I am not sure whether the interested party expected the court to go out and look for the newspaper in order to confirm. In addition, no evidence was attached to show that the motor vehicle was sold. The name of the buyer was not disclosed. The price at which the motor vehicle was allegedly sold was not disclosed. It would appear that the fact of selling the motor vehicle by way of auction is known to the interested party alone. The plaintiff did not indicate whether he was aware that the motor vehicle had been sold. 25.Assuming that indeed, the interested party already sold the motor vehicle, was due process followed? The interested party alleged that the motor vehicle was sold on 5/3/2025. According to the interested party, proclamation was done on 7/2/2025. Upon proclamation, the interested party was required to issue a notification of sale of movable property. There is absolutely no evidence to show that such notification was issued. I have already indicated that there is no evidence to show that the interested party advertised the motor vehicle for sale. There is no evidence to show that the interested party made an application to court for purposes of effecting transfer of ownership of the motor vehicle to the undisclosed purchaser as required by Rule 17(5) and (6) of the Auctioneers Rules. There is also no evidence to show that the interested party issued a purchase receipt to the purchaser of the motor vehicle as required by Order 22 rule 64 of the Civil Procedure Rules and rule 18(3) of the Auctioneers Rules. No evidence has been adduced to show that the proceeds of the alleged sale were remitted to either the court or the plaintiff. There is no itemized account for such proceeds. From the material on record, I conclude that no auction or sale of the applicant’s motor vehicle was done. From the above analysis, it is clear that the execution process was flawed. Such a process cannot be allowed to stand. The decree-holder cannot be allowed to circumvent the law for the sake of expediency, just because there is a balance to be paid by the applicant. It appears that the decree-holder and the interested party are out to hoodwink the court in order to steal a match against the applicant”. 26.In the same ruling, I then proceeded to make the following orders:a.The Decree and Certificate of costs issued herein on 7/1/2015 are hereby set aside. The decree-holder is directed to follow the laid down procedure and extract a proper decree and certificate of costs;b.The warrants of attachment and sale of movable property issued on 6/2/2025 are hereby set aside. Consequently, a stay of execution of the decree is granted until such time when the Decree holder will extract a proper decree and certificate of costs and file a proper application for execution;c.The Interested Party is hereby directed to unconditionally release the Defendant's motor vehicle reg. no. KCT 149 B and any other movable property in their custody, forthwith;d.If there are any charges to be paid to the interested party, the same shall be paid by the plaintiff/respondent. 27.At no point did the court nullify the sale by public auction since it was the finding of the court that there was no evidence of such sale. Furthermore, the issue of validity or legality of the auction was not subject of the application and could not therefore be addressed by the court. However, the court was of the opinion that in the event such a sale occurred, then the same was not done according to procedure. The plaintiff and 1st interested party were well aware of the finding of the court but did not bother to either apply for review or appeal. I have reasons to believe that the failure was deliberate, owing to their actions. 28.I must deprecate in the strongest terms possible the conduct of the 1st interested party and by extension the plaintiff in this matter. The record indicates that on 5/3/2025 this court granted a stay of execution of the decree herein. However, on the same day, the plaintiff and 1st interested party purported to conduct an auction of motor vehicle registration number KCT 149B. When the plaintiff filed a Replying affidavit to the defendant’s application dated 26/2/2025, which replying affidavit was filed on 17/3/2025, he did not disclose or allege that the motor vehicle had already been sold by auction. This fact was stated by the 1st interested party vide a Replying affidavit sworn on 18/3/2025 and filed in court on 1/4/2025. However, other than merely stating that the motor vehicle had been sold, no evidence whatsoever of such sale was exhibited. 29.It is not clear whether the plaintiff and 1st interested party were made aware of the stay orders before or after the purported auction. Nevertheless, in flagrant breach of the orders of this court and with a view to circumvent the due process, the 1st interested party filed a miscellaneous application number E013 of 2025 seeking vesting orders in favour of the 2nd interested party herein. The application was heard by Hon. Mbicha, PM and the orders granted. There was also an order directing the National Transport and Safety Authority to register the name of the 2nd interested party as owner of motor vehicle registration number KCT 149B. It is not clear whether the application was served upon the defendant herein but it would appear that the same was heard and determined ex parte. I am of the opinion that the orders in Misc. application No. E013 of 2025 were obtained through non-disclosure of material particulars and in total disregard or contempt of the orders made on 5/3/2025 and extended over time. 30.Furthermore, it was unprocedural for the 1st interested party to stealthily move the court through separate proceedings seeking vesting orders. Section 34(1) of the [Civil Procedure Act](/akn/ke/act/1924/3) stipulates:All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit”. 31.The foregoing implies that if there was any vesting orders to be made or confirmation of the sale by public auction, the same ought to have been heard and determined by this court. It is quite unfortunate that the court that heard and determined Misc. application number E013 of 2025 did not question or raise concern why the application was being made in separate proceedings yet it was clear from the affidavit in support thereof that the warrants of attachment and sale had been obtained in this suit. I have perused the CTS record in respect of Misc. application No. E013 of 2025. 32.Surprisingly, no evidence of the existence of the warrants of attachment and sale was exhibited in the application and there was also no evidence of the sale having been confirmed and made absolute by the court as required by Order 22 rule 77 of the Civil Procedure Rules which provides:(1)Where no application is made under rule 74, rule 75 or rule 76, or where such application is made and disallowed, the court shall make an order confirming the sale, and thereupon the sale shall become absolute in so far as the interest of the judgment-debtor in the property sold is concerned.(2)Where such application is made and allowed and where, in the case of an application under rule 74, the deposit required by that rule is made within thirty days from the date of sale, the court shall make an order setting aside the sale:Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.(3)No suit to set aside an order made under this rule shall be brought by any person against whom such order is made”. 33.Furthermore, there was also no evidence to show that indeed an auction was conducted and that the 2nd interested party herein was the highest bidder and had purchased the motor vehicle in issue. In my view, vesting orders cannot be made before the sale is confirmed and made absolute by the court. In this case, court means the court that passed the decree and not just any other court. 34.I still maintain that if at all there was any sale of motor vehicle registration number KCT 149B by way of public auction, that sale was greatly flawed. Unfortunately, in as much as I have reservations on the orders that were made in Misc. application No. E013 of 2025, this court lacks jurisdiction to set them aside. The orders were made by a court of concurrent jurisdiction and through separate proceedings. The only remedy is for the aggrieved party or parties to move the court that made the orders for review or go to the higher court on appeal. As for the orders made herein on 13/5/2025, this court agrees with the defendant that the orders are still in force. There has been no application to have them reviewed or set aside and there is no evidence of an appeal having been filed. I further agree that the 2nd interested party’s application cannot be treated as an application for review of the orders made on 13/5/2025. 35.The unfortunate position is that there are in existence conflicting orders made by two different courts. None of the courts has jurisdiction to set aside the orders of the other. This confusion has been brought about by the conduct of the 1st interested party. The actions of the 1st interested party were deliberate since it was aware of the interim orders of stay of execution as well as the orders made on 13/5/2025 but chose to forum shop so as to defeat justice and due process. It is no wonder that the 1st interested party chose to steer clear of these proceedings. Auctioneers should not be allowed to act like thugs and circumvent the due process. I am not afraid of saying that the 2nd interested party’s interest, if at all, in motor vehicle registration number KCT 149B was borne of a flawed process. That being the case, the 2nd interested party has no legitimate capacity to move this court in the manner that he did. He obtained orders in separate proceedings. He cannot now move this court to enforce orders obtained in another court through separate proceedings. 36.The orders that were made on 13/5/2025 directed the 1st interested party to unconditionally release the motor vehicle to the defendant. Without an application for review having been made before this court and allowed, no other application can be made concerning the motor vehicle. The 2nd interested party argued that the orders made on 13/5/2025 were overtaken by events. I have already pointed out that the said events were unprocedural and in contravention of the orders made on 13/5/2025. Illegal events cannot overtake or purport to invalidate court orders in the absence of an application and orders for review. 37.The defendant is not as innocent as she purports to be. She filed an application seeking to set aside the warrants of attachment and sale and the execution herein vide an application dated 26/2/2025. The application also sought stay of execution and release of motor vehicle registration number KCT 149B to the defendant. From the affidavit sworn by the 3rd interested party, it would appear that before the application was heard and determined, the defendant transferred ownership of the above said motor vehicle to the 3rd interested party. The certificate of registration was issued on 5/3/2025 at 1339 hours. This was before the orders of stay of execution were published on 5/3/2025 at 1819 hours. It is disheartening that after transferring the motor vehicle to the 3rd interested party, the defendant went ahead and prosecuted her application and obtained orders knowing very well that she had no title to the subject motor vehicle. Both the defendant and 3rd interested party alleged that the transfer was to curb fraud by the plaintiff and 1st interested party. 38.It is clear to me that the transfer of the subject motor vehicle to the 3rd interested party by the defendant was calculated to evade execution of the decree. It was not made in good faith. The 3rd interested party was aware that the motor vehicle was the subject of pending litigation but agreed to the transfer in her favour. The transfer was without consideration. The defendant wasted precious judicial time and obtained orders in respect of the subject motor vehicle, knowing that she had already resorted to “self-help”. I have pondered over the question of whether the 3rd interested party’s remedy lies in these proceedings. A careful analysis of the two applications will reveal that the question that both the 2nd and 3rd interested parties would want the court to determine is who between the two is the rightful owner of the subject motor vehicle. It is a dispute over ownership. 39.The million dollar question is; Are they before the right forum? The two are not original parties to the suit. The import of the ruling delivered herein on 13/5/2025 is that the warrants of attachment and sale that led to the seizure of the subject motor vehicle by the 1st interested party were set aside as well as the decree and certificate of costs. Any property belonging to the defendant, including the subject motor vehicle was to be released to her. The plaintiff was required to extract a fresh decree and certificate of costs then file a proper application for execution. To date, no step has been taken by the plaintiff to comply with the orders of the court. Having set aside the warrants of attachment and sale and ordered for the unconditional release of the subject motor vehicle, it meant that motor vehicle registration number KCT 149B was no longer a subject of execution of the decree herein. 40.It is alleged by both the 2nd and 3rd interested parties that the subject motor vehicle was impounded by the police following a complaint that had been lodged. The 3rd interested party wants the court to direct the police to release the motor vehicle to her. There is no pending litigation over the motor vehicle in these proceedings. In my view, the 3rd interested party’s cause of action has nothing to do with these proceedings. She deposed in her affidavit that the motor vehicle was impounded following a complaint that she lodged at the police station. She further deposed that the matter is still under investigation. If the motor vehicle was impounded following a criminal complaint, why is the 3rd interested party before this court? Her application seeks orders against the police and not any other party in these proceedings. The police or whoever is legally mandated to represent them are not parties to this suit. 41.Two strangers, that is the 2nd and 3rd interested parties, have invaded these proceedings which have nothing to do with them and expect the court to resolve their dispute(s). If the 2nd interested party has a dispute with the 3rd interested party, this is not the right forum. Similarly, this is not the place to resolve disputes between the 3rd interested party and the police. A dispute over ownership of a motor vehicle by strangers cannot be resolved in these proceedings, particularly where the said motor vehicle is not subject to litigation herein. Both of them engaged in irregularities and now want the court to sanitize their dirty games. I decline the invitation to be part of the scam. In fact, all the parties right from the plaintiff, defendant and all the interested parties acted dishonestly. None of them is clean. Disposition 42.In view of the foregoing, I find that both applications are devoid of merit. I proceed to decree as follows:a.The application by the 2nd interested party dated 26/5/2025 and that of the 3rd interested party dated 17/6/2025 are hereby dismissed;b.Since both the 2nd and 3rd interested parties acted dishonestly and appeared before the wrong forum, each party shall bear own costs;c.For avoidance of doubt, the interim orders made herein on 18/6/2025 are hereby discharged. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 24 TH DAY OF NOVEMBER, 2025.****Y.A SHIKANDA****SENIOR PRINCIPAL MAGISTRATE.**