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ELCDismissedEnvironment and Land Miscellaneous Application E002 of 2020· [2023] KEELC 17076 (KLR)

Kennedy Shikuku t/a Eshikhoni Auctioneers v Kenya Electricity Transmission Company Ltd (KETRACO)

Environment and Land Court
27 April 2023
ECE.C. CHERONO
4,074 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed auctioneers who proclaim goods far exceeding the debt lose their fees entirely.

What this practically means

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Executive summary

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The appellant, an auctioneer trading as Eshikhoni Auctioneers, appealed by chamber summons against a ruling of the Deputy Registrar/Taxing Master delivered on 29 October 2020 striking out his bill of costs dated 17 July 2020. He raised twelve grounds, principally that the taxing master lacked jurisdiction to strike out the bill without a formal application or affidavit by the respondent, that the issue of illegality was time barred, and that his submissions were ignored. The respondent, KETRACO, opposed, deposing through its Company Secretary that following a consent order in ELC Case No. 53 of 2016 and a decree of Kshs. 418,521.05, the appellant proclaimed goods worth Kshs. 6,180,000 - an excess of over Kshs. 5.7 million - a deliberate scheme to inflate auctioneer fees. The court held that the taxing master's jurisdiction is grounded in the Auctioneers Act CAP. 526 and the Auctioneers Rules, 1997, and that Rule 12 obliges an auctioneer to proclaim goods equivalent or approximate to the decretal sum. Relying on Lakeland Motors v Harbhajan Singh Sembi and Barry Scutt v Hitesh Jethwa, which it adopted as binding, the court found the unchallenged exaggerated proclamation irregular and illegal, and that fees founded on it could not stand. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Compliance with Rule 12 of the Auctioneers Rules in proclamation of goods

Holding

The appellant proclaimed goods worth Kshs. 6,180,000 against a decretal sum of Kshs. 418,521.05, an unchallenged exaggeration rendering the proclamation and the fees founded on it irregular and illegal

Reasoning

The court found the sworn averments on the exaggerated proclamation unchallenged. Adopting Lakeland Motors and Barry Scutt, it held the Auctioneers Rules must be obeyed and that an auctioneer is under a fiduciary duty to act professionally and in good faith, proclaiming only goods approximating the decretal sum.

p. 7
02

Jurisdiction of the taxing master to strike out the bill of costs

Holding

The taxing master's jurisdiction over auctioneers' bills is grounded in the Auctioneers Act and Rules, and illegality properly brought to the court's attention could be acted upon

Reasoning

The court noted the jurisdiction of the taxing master in assessing auctioneers' bills is grounded in the Auctioneers Act CAP. 526 and Rules thereunder, and endorsed the respondent's position that illegality once brought to the attention of the court overrides questions of pleading.

p. 5

Legal principles established

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  • An auctioneer must proclaim goods equivalent or approximate to the decretal sum; grossly exaggerated proclamations are irregular and illegal and fees founded on them cannot stand
  • The Auctioneers Rules must be obeyed; non-compliance with Rule 12 in the execution process is a gross irregularity

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 201(d), 201(e), Article 10
  • Auctioneers ActCAP. 526
  • Auctioneers Rules, 1997Rule 55, Rule 12
  • Civil Procedure RulesOrder XX Rule 7

Cases cited (3)

  • Moindi Zaipeline v Karatina University & Another
    (2017) KLR

    Attachment amounts in excess of Kshs. 1,000,000 considered unlawful and illegal; value attached should be close to the decree

  • Lakeland Motors Limited v Harbhajan Singh Sembi
    (1998) eKLR, Civil Application No. 24 of 1998

    Non-compliance with Rule 12 of the Auctioneers Rules in execution is a gross irregularity justifying setting aside the execution process

  • Barry Scutt & Another v Hitesh Jethwa & 2 Others
    (2000) KLR

    Proclamation in general terms without values or condition of items breaches Rule 12 and is irregular and illegal

On appeal from
Deputy Registrar/Taxing Master (ELC Bungoma)
Bill of Costs dated 17/7/2020
Jurisdiction invoked
Rule 55(4) of the Auctioneers Rules, 1997 - appeal from a registrar's decision to a judge in chambers

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, "Kennedy Shikuku t/a Eshikhoni Auctioneers v Kenya Electricity Transmission Company Ltd (KETRACO)", Case Analysis (2023). Environment and Land Miscellaneous Application E002 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17076/eng@2023-04-27

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