Bahati Ridge Management Phase 1A Ltd v Mbote (Environment and Land Appeal 21 of 2020) [2024] KEELC 5149 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the auctioneer's fees of Kshs.49,000/- charged by Compliance Auctioneers complied with the Auctioneers Rules/Remuneration Order
The fees were excessive; the correct chargeable amount was Kshs.32,890/-, an overcharge of Kshs.16,110/-
Paragraph 4 and 5 of Part II of the Fourth Schedule to the Auctioneers Rules band charges by value of goods attached. On a proclaimed value of Ksh.427,000/-, the first Kshs.100,000/- attracts 10% (Kshs.10,000/-) and the balance Kshs.327,000/- attracts 7% (Kshs.22,890/-), totalling Kshs.32,890/-. Charging Ksh.49,000/- breached paragraph 5 of Part II of the Fourth Schedule.
Whether the Applicant had settled the decretal amount and was entitled to stay of execution
The Applicant had not paid the decretal amount; the cheques were rejected (the current cheque bearing an alteration) and stay was refused on merits and for unclean hands
The applicant did not meet the Order 42 Rule 6 conditions (sufficient cause, substantial loss, security). The court found the claim of payment misleading, held the applicant had not approached the court with clean hands, and declined to compel the decree-holder to accept piecemeal payment. Only the revision of auctioneer's fees succeeded.
Legal principles established
#- Proclamation of movable goods under the Auctioneers Rules is legally and effectively an attachment
- Auctioneer's charges for attachment should be based on the value of the goods attached and not on the decretal sum
- An applicant for stay of execution must show sufficient cause, substantial loss and willingness to furnish security
- A litigant who does not approach the court with clean hands is denied equitable relief
Court orders
#- 1.Prayer No. (3) of the Notice of Motion dismissed entirely with costs
- 2.The whole Notice of Motion dated 20th February, 2024 dismissed entirely with costs to the Appellant/Respondent
- 3.Auctioneer's charges revised and fixed at Ksh.32,890/- in place of the Ksh.49,000/- claimed
- 4.Determination that the Applicant owes the Appellant/Respondent Ksh.181,890/- (decretal sum of Kshs.149,100/- plus revised auctioneer's charges)
- 5.The Appellant/Respondent granted liberty to execute against the Respondent/Applicant for the total amount of Ksh.181,890/-
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 22 Rules 18 and 22; Order 51 Rule 1 of the Civil Procedure Rules; Articles 47, 50(1), 159(2)(a) and (d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bahati Ridge Management Phase 1A Ltd v Mbote (Environment and Land Appeal 21 of 2020) [2024] KEELC 5149 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5149/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.