Kennedy Ooko Jacob t/a Ssebo Intel Co. Auctioneer v Agricutural Finance Corporation; Legacy Auctionnering Services & another (Defendants/Debtors) [2019] KEELC 2725 (KLR)
The bottom line
#Kenya's High Court confirmed that state corporations like the Agricultural Finance Corporation must pay auctioneers' costs, which are taxed by the Deputy Registrar.
What this practically means
#Executive summary
#Key legal issues
#Whether the Agricultural Finance Corporation is a government entity whose assets cannot be attached, bringing the matter within the Government Proceedings Act (Cap 40)
The respondent is a public entity established under section 3(1) of the Agricultural Finance Corporation Act as read with the State Corporations Act, funded, functionally controlled and regulated by the state, but this does not oust its obligation to satisfy costs
The court considered the constitutional definitions of 'public office', 'public officer' and 'state organ' under Article 260 and the concept of a 'public entity' in Black's Law Dictionary, 10th Edition. Noting the respondent's establishment under the AFC Act and State Corporations Act, the court found it a public entity controlled and regulated by the state under Articles 227 and 260 of the Constitution, as recognized in the Githunguri Dairy Farmers case.
Whether there is illegality in the accruing auctioneer's costs and whether the Deputy Registrar has jurisdiction to tax the bill
There are lawful costs due to the applicant that the taxing officer would tax; the Deputy Registrar has jurisdiction under Rule 55 of the Auctioneers Rules, 1997, and the judgment debtor is obligated to pay the applicant's costs under section 7 of the Auctioneers Act
The court noted it was common ground that the decretal sum had been paid in full, leaving only the applicant's unpaid costs. Following the Githua J dictum in the Joseph Githinji Mwai case on government responsibility to satisfy decrees and costs, and the Abincha case holding that the High Court determines whether costs are due, the court found lawful costs due and jurisdiction in the taxing officer. The preliminary objection was therefore dismissed.
Legal principles established
#- A body corporate established under a statute, such as a state corporation, is a public entity but is not immune from attachment or payment of auctioneer's costs merely because it is funded and regulated by the state
- The judgment debtor is obligated to pay the auctioneer's costs under section 7 of the Auctioneers Act, and the Deputy Registrar has jurisdiction under Rule 55 of the Auctioneers Rules, 1997 to entertain such an application
Court orders
#- 1.The respondent's preliminary objection dated 6th June 2018 and filed on 11th June 2018 is dismissed
- 2.The application dated 30th April 2018 is referred back to the Deputy Registrar, being the taxing officer, for taxation of the applicant's bill of costs as sought in the application
- 3.Mention before the Deputy Registrar on 24th April 2019
- 4.The respondent/judgment debtor be served
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, 2010; Rules 7 and 55(2) of the Auctioneers Rules, 1997; reference by the Deputy Registrar for determination of the legality of the bill of costs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennedy Ooko Jacob t/a Ssebo Intel Co. Auctioneer v Agricutural Finance Corporation; Legacy Auctionnering Services & another (Defendants/Debtors) [2019] KEELC 2725 (KLR)", Case Analysis (2019). Miscellaneous Application dated 30th April 2018 (arising from Migori ELCC No. 149 of 2017, formerly Kisii ELCC No. 198 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2725/eng@2019-04-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.