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ELCDismissedNot stated in the judgment· [2019] KEELC 839 (KLR)

Andrew Kiptonui Biegon & another v Thomsa Kiplangat Chirchir & another [2019] KEELC 839 (KLR)

High Court of Kenya
15 November 2019
3,416 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 dismissed debtors' complaint over auctioned cows, ruling that grievances against auctioneers belong before the Auctioneers Licensing Board, not civil applications.

What this practically means

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Executive summary

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The applicants, who lost a suit in which judgment was delivered on 12th October 2017 and were ordered to pay costs to the 1st respondent, moved the court by notice of motion dated 2nd April 2019 complaining about the manner of execution. The 2nd respondent, an auctioneer, attached ten animals (said by the applicants to be ten cows; by the auctioneer, five cows and five calves) on 26th October 2018, allegedly without notice or proclamation, and sold them for Kshs 143,000 against an asserted value of Kshs 1,234,000. The applicants sought an order that the respondents render accounts of the attachment, directions, and costs. The respondents maintained that the execution was for the only taxed bill of about Kshs 200,000, that the auctioneer rendered accounts by letter of 14th November 2018 showing proceeds of Kshs 143,000, expenses of Kshs 99,288 and a balance of Kshs 43,712 remitted to the decree holder, and that complaints against an auctioneer lie before the Auctioneers Licensing Board. Kaniaru J held that the stay prayers were perfunctory and lapsed with the determination of the application; that the prayer for accounts was already answered; that the applicants' valuation was speculative since they failed to invoke rule 10 of the Auctioneers Rules for a pre-sale valuation; that sections 4, 24 and 26 of the Auctioneers Act channel grievances about auctioneers' conduct to the Licensing Board or a damages suit; that rules 18, 22 and 55 impose duties on auctioneers towards instructing clients, not debtors; and that the police escort application was properly brought as a miscellaneous application under rule 9. The bare allegation of an unlicensed process server, unsupported by evidence or cross-examination, also failed. The application was dismissed with costs to the respondents.

Key legal issues

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01

Proper forum for complaints against an auctioneer's conduct

Holding

The applicants misapprehended their remedies; complaints about auctioneers' conduct and fees lie before the Auctioneers Licensing Board or the Registrar, and a civil suit for damages under section 26 was available, but this application was not such a suit

Reasoning

The court examined sections 4 and 24 of the Auctioneers Act and rules 18, 22 and 55 of the Auctioneers Rules, holding that rule 18 imposes on the auctioneer a duty to account to the instructing client or the court, not to the debtor, and rule 22 concerns books of account owed to the instructing client. Rule 55 complaints on fees go to the registrar or the Board. The applicants were therefore 'completely wrong in the way they approached the matter'.

p. 3
02

Valuation of attached property

Holding

The applicants' figure of Kshs 1,234,000 was speculative because they declined the option of a pre-sale independent valuation under rule 10 of the Auctioneers Rules, 1997

Reasoning

Rule 10 permits a debtor, before sale of seized property, to apply to court for valuation by an independent valuer. The applicants did not exercise that option and instead advanced an unexplained figure after the sale. The court could not place reliance on such a conjectural figure and held the applicants should have used rule 10 to strengthen their complaint.

p. 3
03

Accounts of the execution

Holding

The prayer for accounts was answered by the 2nd respondent's letter of 14th November 2018 showing sale proceeds of Kshs 143,000, expenses of Kshs 99,288 and a balance of Kshs 43,712 forwarded to the instructing client

Reasoning

The court found the chronology in the auctioneer's letter sufficient, leaving no intelligible basis for a further order for accounts. The grievance about undervalue was a matter for the Board or a damages suit, not this application.

p. 3
04

Service and burden of proof on the unlicensed process server allegation

Holding

Service was established on the record, and the applicants' bare allegation that the process server was unlicensed, without supporting documentation or cross-examination, could not shift the burden to the respondents

Reasoning

The court noted the applicants shifted from denying service to alleging an unlicensed server. It held that such an allegation required a letter or document from the licensing body, or cross-examination of the server. A mere allegation cannot discharge the applicants' burden of proof.

p. 4

Legal principles established

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  • The Auctioneers Licensing Board is the mandated forum for grievances relating to the conduct of auctioneers in the course of their work
  • A debtor who disputes the value of attached property must seek a pre-sale valuation under rule 10 of the Auctioneers Rules, 1997, before sale; a post-sale speculative figure will not be relied on
  • A party alleging that a process server was unlicensed must substantiate the allegation with documentary evidence from the licensing body and cannot shift the burden of proof to the opposing party
  • An application for police escort by an auctioneer under rule 9 of the Auctioneers Rules, 1997 may properly be made by way of a miscellaneous application, potentially ex parte, rather than in the substantive suit
  • Interim stay orders framed to operate 'pending hearing and determination of this application' lapse upon determination and cannot be granted at the disposal stage

Court orders

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  1. 1.The notice of motion dated 2nd April 2019 was dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure RulesOrder 22 rule 22(1)
  • Auctioneers Rules, 1997Rules 9(1)(a),(b),(c) and (2), 10, 18, 22, 55
  • Auctioneers Act (Cap 526)Sections 4, 24, 26
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 63(e) of the Civil Procedure Act (Cap 21), Order 22 rule 22(1) of the Civil Procedure Rules and rules 18, 22 and 55 of the Auctioneers Rules, 1997

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Andrew Kiptonui Biegon & another v Thomsa Kiplangat Chirchir & another [2019] KEELC 839 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/839/eng@2019-11-15

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