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ELCPartially AllowedMiscellaneous Appeal E038 of 2023· [2023] KEELC 21782 (KLR)

Kindest Auctioneers v Orbit Chemicals Industries Limited

Environment and Land Court of Kenya
13 November 2023
4,789 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed auctioneer commission is based on the value of goods attached, not the debt amount, and struck out a late cross-appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (JA Mogeni J) determined three applications: the Applicant auctioneer's appeal by chamber summons dated 15/08/2023 against the Taxing Master's ruling of 10/08/2023 on Item No. 5 (commission) of an Amended Bill of Costs; the Respondent's cross-appeal dated 6/09/2023 seeking an increase of the award from Kshs. 2,327,583 to Kshs. 14,242,091.78; and the Applicant's preliminary objection to the cross-appeal. The court first upheld the preliminary objection, holding that Rule 55(5) of the Auctioneers Rules prescribes a mandatory 7-day period for filing an appeal by chamber summons, that a time bar goes to jurisdiction, and that the cross-appeal filed on 7/09/2023 without leave or extension was incompetent. Although Order 42 Rule 32 of the Civil Procedure Rules recognises cross-appeals without prescribing timelines, the court held that a cross-appeal must be filed within a reasonable time or with leave sought without inordinate delay, none of which the Respondent demonstrated. The cross-appeal was therefore struck out. On the merits of the Applicant's appeal, the court held that taxation is discretionary and interference requires an error of principle or a manifestly excessive award. Applying National Industrial Credit Bank Ltd v S.K. Ndegwa, it held that an auctioneer's commission is pegged to the value of goods actually attached, not the decretal sum, and that where attachment is stayed the auctioneer is entitled to half fees plus expenses. The Taxing Master's assessment of Kshs. 1,966,846.52 was sound, and the Applicant's appeal was dismissed with costs.

Key legal issues

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01

Timeliness and jurisdiction over the cross-appeal

Holding

The cross-appeal filed on 7/09/2023, well outside the 7-day window of Rule 55(5) and without leave or extension, was incompetent and the court lacked jurisdiction to entertain it

Reasoning

Rule 55(5) prescribes a mandatory 7-day period for filing an appeal by chamber summons. A time bar is both procedural and substantive, extinguishing the court's authority over the dispute. The Respondent made no application for extension of time and offered no explanation for the delay, so the court was not properly clothed with jurisdiction.

p. 5
02

Whether the Taxing Master erred on Item No. 5 (commission)

Holding

No error of law or principle; the assessment of Kshs. 1,966,846.52 was sound because attachment was stopped by the stay of execution and commission is pegged to the value of goods attached

Reasoning

Relying on National Industrial Credit Bank Ltd v S.K. Ndegwa, the court held that auctioneer's charges for attachment must be based on the value of goods attached, not the decretal sum. Part II of the Fourth Schedule entitles the auctioneer to half fees plus expenses where the sale is stayed or postponed after requisite notices. The Taxing Master's reasoning was therefore sound.

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Whether an unopposed appeal should be allowed automatically

Holding

No; the court has a duty to determine an unopposed appeal on its merits

Reasoning

Although the Respondent only filed grounds of opposition to a now-spent stay application, the court held that an unopposed appeal cannot simply be deemed allowed; it must be considered and determined on its merits.

Legal principles established

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  • The 7-day timeline for filing an appeal under Rule 55(5) of the Auctioneers Rules is mandatory; filing out of time without leave goes to jurisdiction and cannot be cured by Article 159(2)(d)
  • An auctioneer's commission for attachment is to be based on the value of goods actually attached, not the decretal sum
  • Where no statutory timeline exists for filing a cross-appeal, it should be filed within a reasonable time after service of the memorandum of appeal, or leave sought without inordinate delay
  • A court should be slow to interfere with a Taxing Officer's decision unless it is based on an error of principle or the fee awarded is manifestly excessive

Court orders

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  1. 1.The Notice of Preliminary Objection dated 14/09/2023 is allowed as prayed; the cross-appeal (Chamber Summons dated 6/09/2023) is struck out as incompetent
  2. 2.The Applicant's appeal by Chamber Summons dated 15/08/2023 is dismissed with costs

Authorities

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Legislation

  • Auctioneers RulesRule 55(2), (4), (5); Fourth Schedule Part II paragraph 4
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 42 Rule 32; Order 51 Rule 10(2)
  • Code of Civil Procedure, 1908 (India)Order 41 Rule 22; Order 21 Rule 43
  • Auctioneer Rules No. 5 of 1996 (Revised 2017)Part II of the Fourth Schedule

Cases cited (13)

  • Ezekiel Kiminza t/a Auto Land Auctioneers v Mistry Valji Naran Mulji
    [2017] eKLR

    Rule 55 procedure and timelines are mandatory

  • Mutia Muindi ya Matiba Auctioneers vs CFC Stanbic Ltd & Ano
    [2015] eKLR

    Time bar is procedural and substantive, extinguishing the court's jurisdiction

  • Owners of Motor Vessel "Lilian S" vs Caltex Oil (K) Ltd
    [1989] KRL 1

    Appellate jurisdiction is a creation of statute and must be exercised within statutory limits

  • Kakuta Maimai Hamis vs Peris Tobiko & 2 Others
    [2013] eKLR

    Appellate jurisdiction is a creation of statutes

  • Ocheja Emmanuel Dangana vs Hon. Attai Aidoko Alo Usman & Others
    SC 480/2011 and SC 11/2012

    Conditions for a court to be competent and have jurisdiction

  • Aprim Consultants vs Parliamentary Service Commission & Another
    Civil Appeal No. E039 of 2021

    Plain and unambiguous statutory provisions leave no interpretive wiggle room

  • Kenya Power & Lighting Co. Ltd v Peter Langi Mwasi
    [2018] eKLR

    Cross-appeals should be filed within reasonable time or with leave where no timeline is prescribed

  • First American Bank of Kenya vs Shah & Others
    [2002] EALR; (Nairobi Milimani) HC Civil Case No. 2255 of 2000

    Court cannot interfere with taxing master's decision absent error of principle or manifestly excessive fee

  • Zacharia Barasa vs Dubai Bank Kenya Limited
    (2015) eKLR

    Adopted the First American Bank principles on interference with taxation

  • Bank of Uganda vs Benco Arabe Espanal
    (199) Z EA 45 (2020) Z EA 297 (SCU)

    Judge should interfere only where error of principle substantially affected quantum and injustice would result

  • Butt vs Khan
    [1981] KLR 470

    Appellate court will not disturb an award unless inordinately high or low representing an erroneous estimate

  • Kitavi vs Coastal Bottlers Ltd
    [1985] KLR 470

    Principles for appellate interference with quantum

  • National Industrial Credit Bank Limited vs S. K. Ndegwa Auctioneer
    Civil Appeal No. 195 of 2004

    Auctioneer's charges for attachment based on value of goods attached, not decretal sum

On appeal from
High Court of Kenya (Taxing Master / Deputy Registrar)
Amended Bill of Costs dated 23/05/2023
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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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, "Kindest Auctioneers v Orbit Chemicals Industries Limited", Case Analysis (2023). Miscellaneous Appeal E038 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21782/eng@2023-11-13

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