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ELCStruck OutNot stated in the judgment· [2017] KEELC 1117 (KLR)

Ezekiel Kiminza t/a Auto Land Auctioneers v Mistry Valji Naran Mulji [2017] KEELC 1117 (KLR)

High Court of Kenya
6 November 2017
CYC. Yano
1,838 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court struck out a challenge to a Kshs.4.1 million auctioneer's bill because it used the wrong procedure and missed a strict 7-day deadline.

What this practically means

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Executive summary

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The Respondent, Mistry Valji Nulji Naran Mulji, filed a 'Reference' seeking to set aside the ruling and order of the Taxing Master, Hon. A. S. Lesootia (Deputy Registrar), made on 8th December 2016, taxing the Auctioneer's Bill of Costs dated 6th September 2016 at Kshs.4,103,445.91. The Respondent argued the assessment was manifestly excessive, that item No.4 was an aggregate of items 1-3 wrongly allowed at almost double the scale amount, that items lacked evidentiary support, and that the Taxing Master failed to give reasons. The Auctioneer opposed, contending the Reference was an unknown, incompetent procedure: challenges to an Auctioneer's Bill of Costs lie under Rule 55 of the Auctioneers Rules by way of a memorandum of appeal by way of chamber summons filed within 7 days, not a reference under the Advocates (Remuneration) Order, and the Reference was also filed outside the 7-day window without leave. Relying on Mutia Muindi ya Matiba Auctioneers v CFC Stanbic Ltd and the Lilian S jurisdiction doctrine, the Auctioneer urged dismissal. The court (C. Yano, J) agreed: the prescribed procedure and 7-day limit under Rule 55 are mandatory; the Reference was an unknown procedure filed out of time without leave, raising procedural and substantive issues going to jurisdiction. The court therefore lacked authority to entertain the matter on the merits. The Reference was struck out with costs to the Applicant/Auctioneer.

Key legal issues

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01

Competence of a 'Reference' as a mode of challenging an Auctioneer's Bill of Costs assessment

Holding

A 'Reference' is an unknown procedure for challenging an auctioneer's costs; the Auctioneers Rules prescribe only a memorandum of appeal by way of chamber summons under Rule 55(4) and (5)

Reasoning

The court examined Rule 55 of the Auctioneers Rules, which requires that an appeal from a registrar's assessment be by memorandum of appeal by way of chamber summons within 7 days. The Respondent instead filed a 'Reference', a mechanism applicable to advocates' bills under the Advocates (Remuneration) Order, not auctioneers' bills. Using the wrong procedure was both procedural and substantive, defeating the court's jurisdiction.

p. 2
02

Effect of filing outside the 7-day window under Rule 55(5) without leave

Holding

The time limit is mandatory; filing outside it without an extension of time extinguishes the court's authority over the dispute

Reasoning

The Taxing Master's decision was rendered on 8th December 2016, so the 7-day window lapsed on 15th December 2016. The Reference was filed on 16th March 2017, outside the period and without leave. The court held the time bar procedural and substantive, going to jurisdiction, and rendered the application a non-starter.

p. 3

Legal principles established

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  • Where one challenges a Taxing Officer's assessment of an Auctioneer's Bill of Costs, the prescribed procedure is a memorandum of appeal by way of chamber summons filed within 7 days; failure to use the prescribed form and time goes to jurisdiction
  • A party who fails to come to court under the prescribed form and within the prescribed time cannot have the matter entertained on the merits; the application is incompetent in limine

Court orders

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  1. 1.The Reference (Application) is struck out
  2. 2.Costs of the Reference to the Applicant/Auctioneer

Authorities

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Legislation

  • Auctioneers RulesRule 55(2), 55(4), 55(5)
  • Auctioneers ActFourth Schedule; Rule 7
  • Advocates (Remuneration) OrderParagraph 11; Rule 11
  • Advocates ActNot specified
  • Civil Procedure Rules (Cap 21, Sub. Leg.)Definition of 'registrar'

Cases cited (7)

  • Nyagito & Company Advocates –vs- Doinyo Lessos Creameries Ltd
    (2014) eKLR
  • Evan Twiga Gaturu Advocate –vs- Kenya Commercial Bank Ltd
    Misc. Appl. No.343 of 2011
  • Republic –vs- Otieno Kajwang Minister for Immigration and Registration of Persons and Another Ex parte Mohammed Muhuned Siret
    (2008) eKLR
  • Rustam Hira – vs- Oriental Commercial Bank
    (2009) eKLR
  • Mutia Muindi ya Matiba Auctioneers –vs- CFC Stanbic Ltd & Ano
    (2015) eKLR
  • Owners of motor vessel “Lilian S” –v- Caltex Oil (K) Ltd
    (1989) KRL 1
  • Kakuta Maimai Hamis –v- Peris Tobiko & 2 others
    (2013) eKLR
Jurisdiction invoked
Rule 55 of the Auctioneers Rules (appeal from a registrar's assessment of an auctioneer's fees to a judge in chambers)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ezekiel Kiminza t/a Auto Land Auctioneers v Mistry Valji Naran Mulji [2017] KEELC 1117 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1117/eng@2017-11-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.