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ELCDismissedNot stated in the judgment as provided· [2024] KEELC 6112 (KLR)

Nayer v Mohamed & another (Environment & Land Case E027 of 2023) [2024] KEELC 6112 (KLR)

High Court of Kenya
25 September 2024
554 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court dismissed a request for permission to sell attached goods, ruling the Auctioneers Rules already provide the complete procedure.

What this practically means

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Executive summary

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This was an application dated 24th October 2023 by the plaintiff, brought under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 22 Rule 46 of the Civil Procedure Rules, seeking leave for Nimag Auctioneers to sell attached goods by public private treaty in recovery of rental income due to the plaintiff, together with storage charges, advocates' fees, auctioneers' fees and incidental disbursements. The background was that on 30th June 2023 the court had granted break-in orders in respect of the plaintiff's premises known as Shop 1, 2 and 3 on Plot No. 209/4864/XVII/135/Section 1 Kengeleni Centre; the plaintiff instructed Nimag Auctioneers, who took an inventory of the goods. The respondents, through Mogaka Omwenga, claimed Kshs 28,850,000 as the value of property allegedly taken, while the plaintiff's advocates confirmed the goods were in custody and valued them at Kshs 3,552,600. The defendants never entered appearance; the plaintiff filed submissions. The court framed two issues: whether the application had merit, and who bears the costs. Holding that the auctioning process is governed by the Auctioneers Rules, particularly rules 11 to 17 and more specifically rules 12 and 16, which set out the procedure for public auction or private treaty, the court found it need not grant the orders sought. Referencing Maina Wanjigi & another v Bank of Africa Kenya Ltd & 2 others (2015) eKLR for the process, the court directed that the matter be dealt with administratively rather than by application, dismissed the application, and made no orders as to costs.

Key legal issues

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01

Whether the court should grant leave for sale of attached goods by private treaty under the Civil Procedure Act and Order 22 Rule 46

Holding

The application lacks merit because the Auctioneers Rules, specifically rules 11 to 17 and more particularly rules 12 and 16, already set out the procedure for public auction or private treaty, and the court need not issue the orders sought

Reasoning

The court held that the relevant law and procedure are governed by the Auctioneers Rules, particularly rules 11 to 17, and more specifically rules 12 and 16, which prescribe the auctioning process. Since that framework already regulates the sale, the court's intervention by way of application was unnecessary; the matter should be handled administratively. The court also referenced the process outlined in Maina Wanjigi & another v Bank of Africa Kenya Ltd & 2 others (2015) eKLR for reference purposes.

p. 2
02

Costs of the application

Holding

No orders as to costs were made

Reasoning

Although the plaintiff sought costs of the application, the defendants had never entered appearance and the application was dismissed, with the court directing that each side bear its own costs by way of 'no orders as to costs'.

p. 2

Legal principles established

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  • Where the Auctioneers Rules prescribe the procedure for sale by public auction or private treaty, the court need not give orders in respect of such sale; the process should be handled administratively rather than by application

Court orders

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  1. 1.The application dated 24th October 2023 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure RulesOrder 22 Rule 46
  • Auctioneers RulesRules 11 to 17, particularly rules 12 and 16

Cases cited (1)

  • Maina Wanjigi & another v Bank of Africa Kenya Ltd & 2 others
    (2015) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 22 Rule 46 of the Civil Procedure Rules

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, "Nayer v Mohamed & another (Environment & Land Case E027 of 2023) [2024] KEELC 6112 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6112/eng@2024-09-25

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