Andrew Kiptonui Biegon & another v Thomsa Kiplangat Chirchir & another [2019] KEELC 839 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Proper forum for complaints against an auctioneer's conduct
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
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'.
Valuation of attached property
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
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.
Accounts of the execution
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
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.
Service and burden of proof on the unlicensed process server allegation
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
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 2nd April 2019 was dismissed with costs to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.