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ELCPartially AllowedEnvironment & Land Case 177 of 2013· [2023] KEELC 21540 (KLR)

Wanjala v Walukhuchi & 3 others

Environment and Land Court
16 November 2023
ECE.C Cherono
2,837 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled auctioneers illegally seized and sold a farmer's cattle too quickly, but the farmer got no compensation because he couldn't prove the animals' value.

What this practically means

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Executive summary

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The applicant moved the court by notice of motion dated May 26, 2023 seeking to restrain the respondents from selling movable property attached on May 25/26, 2023, a declaration that the attachment without notice of proclamation was unlawful, restitution of specified livestock (2 bulls, 2 calves, 2 goats, 1 ram and 1 ewe) or payment of their market value of Kshs.134,000/=, and costs. The attachment was in execution of taxed costs of Kshs.159,093.33 under a certificate of costs issued April 18, 2023. The respondents opposed, asserting that proclamation was effected on April 19, 2023 with a 7-day notice, that a notification of sale issued for a public auction on May 29, 2023, and that the goods were sold before they were served with the interim court order. The court framed two issues: entitlement to the orders sought and costs. It held that execution by auction involves three distinct steps - proclamation, attachment and sale - each on a separate date, and that section 13 of the Auctioneers Act required a 72-hour redemption notice for livestock. The attachment on May 26, 2023 and sale on May 29, 2023 breached this procedure and were illegal and irregular. However, the restraining order was overtaken by events, and the monetary claim failed as unproven special damages given conflicting valuations (Kshs.57,500/= by the auctioneer versus Kshs.134,000/= claimed). The application was allowed only to the extent of the finding of non-compliance with section 13, with the respondents ordered to bear the costs jointly and severally.

Key legal issues

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01

Whether the attachment and sale of the applicant's livestock complied with the Auctioneers Act and Rules

Holding

The attachment and sale were illegal and irregular for non-compliance with section 13 of the Auctioneers Act; the earliest lawful auction date would have been 31st May 2023, yet the sale occurred on 29th May 2023

Reasoning

The court set out the statutory sequence: proclamation, then Sale Form 3 notice giving 72 hours to redeem, then removal, storage, advertisement and auction. The record showed a proclamation notice dated 18th April 2023 and a notification of sale for 29th May 2023, but attachment occurred on 26th May 2023 without the 72-hour redemption period having run, rendering the process irregular.

p. 5
02

Whether the applicant was entitled to restitution or the market value of the sold livestock

Holding

Refused; the goods were already disposed of and the monetary claim failed as unproven special damages

Reasoning

The court noted the auctioneer had valued the cattle at Kshs.57,500/= in the notification of sale while the applicant claimed Kshs.134,000/=, and found the value unascertained on the evidence. Special damages must be strictly proved, so the alternative monetary prayer failed.

03

Whether the restraining order sought was still available

Holding

Not granted, having been overtaken by events since the goods were sold on 29th May 2023

Reasoning

The respondents deponed and the applicant did not dispute that the attached assets were auctioned on 29th May 2023 at 10:00 a.m., before service of the interim court order, so an order of restraint could no longer serve any purpose.

p. 5

Legal principles established

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  • An execution by auction comprises three distinct steps - proclamation, attachment and sale - each of which must take place on a separate date within statutory timelines
  • An auctioneer executing against perishable goods or livestock must comply with section 13 of the Auctioneers Act, including giving the owner 72 hours' notice to redeem the goods
  • A claim for the market value of attached and sold goods is a claim for special damages which must be pleaded and strictly proved

Court orders

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  1. 1.The application dated 26/5/2023 is allowed only to the extent of a finding that there was no compliance with section 13 of the Auctioneers Act
  2. 2.Prayer (c) (restraint from selling/disposing of attached property) is overtaken by events and not granted
  3. 3.Prayer (d) (declaration that the seizure was unlawful) is granted in substance - the attachment and sale were found illegal and irregular
  4. 4.Prayer (e) for restitution or payment of market value of the livestock is refused for failure to strictly prove special damages
  5. 5.The respondents shall jointly and severally bear the costs of the application

Authorities

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Legislation

  • Auctioneers Act (Cap 526)Section 7
  • Auctioneers Act (Cap 526)Section 13
  • Auctioneers Act (Cap 526)Section 21
  • Auctioneers RulesRules 12, 13, 13(c) and 14
  • Civil Procedure ActSection 91(1)
  • Civil Procedure Rules 2010Order 22 rules 6, 7(h), 7(i); Order 50 rules 2 and 8; Form No. 14 of Appendix A
  • Constitution of Kenya 2010Articles 47 and 50

Cases cited (6)

  • Maina Wanjigi & another v Bank of Africa Ltd & 2 others
    eKLR

    Requirement that an auctioneer comply with proclamation procedure and be available for cross-examination on it

  • Robella Betty Ayode Omaido v Eliphineas Jockson Ekim Omaido and Eshikoni Auctioneers & 2 others
    Kitale ELC Case No. 42 of 2015

    Notice requirements for sale of attached assets under the Auctioneers Rules

  • K-Rep Bank Limited v John Onchoke
    Nairobi HC Appeal No. 336 of 2010 eKLR

    Notification of sale of attached assets

  • Real People Kenya Limited & another v Nyandeya t/a Akmal Enterprises & another
    Civil Appeal No. 23 of 2020

    Compliance with Rule 12 of the Auctioneers Rules where the debtor declines to sign the proclamation notice

  • Kalysoi Farmers Co-operative Society v Paul Kiryi & another
    (2013) eKLR

    Proposition that orders sought may be overtaken by events

  • Cyrus Komo v Hannah Nyambura Gikamu
    (2018) eKLR

    Restitution requires a decree to have been varied or reversed; section 91(1) Civil Procedure Act

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over execution/attachment arising in a land matter (ELC Case 177 of 2013)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Wanjala v Walukhuchi & 3 others", Case Analysis (2023). Environment & Land Case 177 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21540/eng@2023-11-16

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