Milimani Law Courts /FILE A judge has overturned a magistrate’s ruling that awarded a mandatory injunction and cited three parties for contempt in a dispute over distress for rent involving adjacent properties in Eastleigh.
Justice Edward Wabwoto of the Environment and Land Court at Milimani set aside the ruling and orders issued by a Principal Magistrate on July 30, 2025, and dismissed an application by Osman Ali Mohamed that had resulted in the orders.
The dispute arose after Saadia Madey Adan, the registered proprietor of LR No 36/1/1033 in Eastleigh, instructed licensed auctioneer Joseph Nderitu, trading as Jogan Dries Auctioneers, to levy distress for rent arrears of Sh810,000 against her tenant, Abdullahi Sheikh Hirsi.
A proclamation notice issued on May 9, 2025 listed items including sofa sets, a computer, office chairs and a water dispenser, valued at about Sh181,600.
After the auctioneer was allegedly denied access, he obtained an ex parte order on June 16, 2025 authorising the Officer Commanding Station at Eastleigh North police station to assist in executing the distress and supervise the exercise for the maintenance of law and order.
The order expressly stated that it was not an order for eviction or demolition.
On July 11, the auctioneer issued notifications advertising the sale of assorted scrap metals, motor vehicle KAR 100H, valued at Sh5,000, and motor vehicle KBJ 855J, valued at Sh20,000.
The same day, Osman moved the trial court seeking to be enjoined in the proceedings, a stay of the June order, a mandatory injunction for the return of goods he claimed had been illegally attached from his parcel, LR No 36/1/1034, and contempt citations.
The magistrate allowed his joinder and granted the mandatory injunction, finding that the items listed in the sale notifications were different from those contained in the original proclamation notice.
The magistrate also found that the auctioneer had failed to file a fresh application for leave to attach other movable property under Rule 12(2)(b) of the Auctioneers Rules, rendering the attachment unprocedural and an illegality.
On the disputed question of whether the goods had been taken from the wrong property, the magistrate considered conflicting affidavit evidence.
The court found Mohamed’s position to have been corroborated by three witnesses and therefore believable, while noting that the tenant had remained silent on whether the auctioneer went to his property.
The magistrate subsequently cited the auctioneer, Adan and the police officer for contempt and issued notices requiring them to show cause.
On appeal, Adan argued that the matter was never a proper suit but a miscellaneous application filed to obtain police assistance for a distress levy.
She argued that under Order 3 Rules 1 and 2 of the Civil Procedure Rules, such an application could not be used to obtain permanent or final orders.
Justice Wabwoto agreed, finding that the magistrate had granted final relief rather than temporary orders.
He noted that the mandatory injunction effectively declared that the goods belonged to Mohamed and ordered their return, despite the absence of the normal processes of a proper suit, including formal pleadings, evidence being taken in court and cross-examination of witnesses.
The judge also faulted the contempt findings, noting that contempt proceedings are quasi-criminal and require a higher standard of proof than ordinary civil proceedings.
He found that the magistrate had resolved conflicting and untested affidavit evidence by preferring one account over another, effectively applying the civil standard of proof on a balance of probabilities.
Justice Wabwoto ruled that the contempt finding against Adan could not stand.
He noted that the June 16 order, which the magistrate found had been breached, contained no prohibition directed at Adan.
Instead, it was addressed to the police officer, whose role was limited to supervision.
The judge found no evidence that Adan was present or gave any instructions beyond her initial directions to levy distress.
He said contempt required proof of personal and deliberate conduct and could not be established merely through a principal-agent relationship.
Justice Wabwoto also rejected the magistrate’s finding that the tenant had remained silent.
He pointed to an application filed by Hirsi on July 15, 2025 seeking to restrain the sale of the two motor vehicles on the basis that the attached motor vehicle belonged to a third party, his client.
Idow Trading Company Limited, which owns the neighbouring parcel LR No 36/1/1034, had also argued that Mohamed had no legal claim to the property.
The judge noted that the Court of Appeal had already ruled against Mohamed in June 2026, holding that a temporary occupation licence did not confer ownership of land.
Justice Wabwoto agreed with that position.
He consequently overturned the magistrate’s ruling, dismissed Mohamed’s application, cancelled the contempt orders and ordered him to pay the legal costs.
