Kisoya v Maingi; Auctioneers & 2 others (Interested Parties) (Civil Case 198 of 2019) [2025] KEMC 295 (KLR)
The bottom line
#A Kenyan magistrate dismissed both sides' applications over a vehicle seized in execution, finding they obtained orders through dishonesty and forum shopping.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court can and should order the cancellation of the transfer of motor vehicle KCT 149B into the name of Grace Nkatha Njeru by the Registrar of National Transport & Safety Authority and revert the registration to the defendant Celina Karabai Maingi
- 2.Whether the motor vehicle should be released to the 3rd interested party
- 3.What other orders the court should make in respect of the applications
- 4.What orders the court should make with respect to costs
Key legal issues
#Effect of the ruling of 13/5/2025 setting aside the execution process
The ruling set aside the decree, warrants of attachment and sale and directed unconditional release of the motor vehicle to the defendant; it did not nullify any sale because no sale was proved, and the orders remain in force unreviewed and unappealed
The court reproduced its earlier ruling and the orders made therein, clarifying that it found there was no evidence that an auction ever occurred, so it could not have nullified a sale. The plaintiff and 1st interested party never sought review or appeal of those orders, and the 2nd interested party's application was not a review. Accordingly the orders of 13/5/2025 remain binding and no application contradicting them could be entertained.
Validity of the vesting orders in Misc. application No. E013 of 2025
The vesting orders were obtained through non-disclosure, in contempt of stay orders, and unprocedurally in separate proceedings, but this court lacks jurisdiction to set them aside
The 1st interested party filed a miscellaneous application before a different judicial officer of the same court seeking vesting orders, apparently ex parte, despite being aware of stay orders and the ruling of 13/5/2025. Section 34(1) of the Civil Procedure Act requires execution questions to be determined by the executing court. No evidence of warrants, sale confirmation under Order 22 rule 77, or the auction itself was exhibited. The court deprecated this forum shopping but held the orders could only be revisited by review or appeal.
Good faith of the defendant's transfer of the motor vehicle to the 3rd interested party
The transfer was made without consideration and calculated to evade execution; the defendant prosecuted her application knowing she had no title
The certificate of registration was issued to the 3rd interested party before the stay orders were published, while the defendant's application dated 26/2/2025 was still pending. The defendant continued to prosecute her application and obtained orders knowing she had already transferred the vehicle. Both defendant and 3rd interested party alleged the transfer was to curb fraud, but the court found it was a dishonest self-help device to evade execution of the decree.
Whether the court should resolve the ownership dispute between the two interested parties
No; both are strangers to the suit and the motor vehicle is no longer subject to execution, so this is the wrong forum
Having set aside the warrants, decree and certificate of costs, the motor vehicle was no longer subject of execution in these proceedings. The dispute between the 2nd and 3rd interested parties is one of ownership, and the 3rd interested party's claim is actually against the police, who are not parties. The court declined to sanitize the irregularities of parties who all acted dishonestly.
Legal principles established
#- All questions relating to the execution, discharge or satisfaction of a decree must be determined by the court executing the decree, not in separate proceedings
- Vesting orders cannot be made before the sale is confirmed and made absolute by the court that passed the decree
- A court of concurrent jurisdiction cannot set aside orders made by another court in separate proceedings; the remedy is review before the same court or appeal
Court orders
#- 1.The application by the 2nd interested party dated 26/5/2025 is dismissed
- 2.The application by the 3rd interested party dated 17/6/2025 is dismissed
- 3.Each party shall bear own costs
- 4.The interim orders made on 18/6/2025 are discharged
- 5.James Magoci Ndung'u is joined as the 2nd interested party pursuant to Order 1 rule 10(2) of the Civil Procedure Rules
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original execution/interlocutory jurisdiction under the Civil Procedure Act and Civil Procedure Rules
Relief refused
#Cancellation of the transfer of motor vehicle KCT 149B to the 3rd interested party and reversion of registration to the defendant
The 2nd interested party's interest was borne of a flawed process; the court lacks jurisdiction to set aside orders of a court of concurrent jurisdiction; both parties acted dishonestly and are strangers to the suit
Release of motor vehicle KCT 149B to the 3rd interested party
Her cause of action concerns orders against the police, who are not parties to the suit; the motor vehicle is no longer subject to execution in these proceedings
Costs
Each party shall bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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
Since both the 2nd and 3rd interested parties acted dishonestly and appeared before the wrong forum, each party shall bear own costs
For avoidance of doubt, the interim orders made herein on 18/6/2025 are hereby discharged
Auctioneers should not be allowed to act like thugs and circumvent the due process.
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.
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.
Issues in the judgment
#The case number of the principal suit is not stated anywhere in the judgment
The plaintiff is not named in the judgment; he is referred to only by role
The 1st interested party (the auctioneer) is never named in the judgment
The judgment recites the decree as issued on 7/1/2015 while the warrants were issued on 6/2/2025, suggesting a typographical error in the year of the decree
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisoya v Maingi; Auctioneers & 2 others (Interested Parties) (Civil Case 198 of 2019) [2025] KEMC 295 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/295/eng@2025-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.