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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 6503 (KLR)

Kimuyu v Ngulili & 2 others (Environment and Land Case 040 of 2024) [2025] KEELC 6503 (KLR)

Environment and Land Court
3 July 2025
EOE. O. Obaga
1,840 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that disputed auctioneer's fees must go through official taxation, attached goods stay held until fees are paid, and damages claims need a separate case.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (E. O. Obaga, J) determines a Notice of Motion dated 21st February 2025 by the Plaintiff/Applicant, a tenant of the 3rd Defendant/Respondent in Itumbule Building. After a demand for rent arrears of Kshs.386,000/- in September 2024, Eastern Kenya Auctioneers proclaimed and carted away the Applicant's goods, which the Applicant valued at over Kshs.10,000,000/-. The Applicant sought orders declaring the rent fully settled, directing deposit of any sale proceeds into a joint account, and indemnity and compensation for alleged unlawful attachment. The 3rd Respondent confirmed full settlement of rent arrears, leaving only auctioneer's fees agreed at Kshs.403,500/-, which she said could be taxed under Rule 55(2) of the Auctioneers Rules. The court framed three issues: taxation of the auctioneer's bill, unconditional release of the goods, and costs. It held that as the Applicant disputed the fees with no agreement, the Deputy Registrar should tax the bill. It declined to order unconditional release, holding that the auctioneer is not a party and cannot be adversely ordered unheard, that he was entitled to fees having attached before the arrears were cleared, and that he has a lien over the goods. The indemnity claim was disallowed, damages being recoverable only through a separate action. Prayer 4 succeeded partially; the Applicant, having substantially lost, was ordered to pay costs to the 3rd Respondent.

Key legal issues

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01

Whether the auctioneer's bill should be taxed by the Deputy Registrar

Holding

Yes - the Applicant disputes the bill and there is no agreement on fees, so the Deputy Registrar should tax the bill to be filed by the auctioneers

Reasoning

Rule 55(2) of the Auctioneers Rules empowers a registrar to assess fees payable where a dispute arises in proceedings before the High Court. The Applicant disputes the Kshs.403,500/- charged and there is no agreement on fees, so the statutory route of taxation was the appropriate remedy.

p. 4
02

Whether the attached goods should be unconditionally released

Holding

No - the auctioneer retains a lien over the attached property pending settlement of fees, and adverse orders cannot issue against a non-party unheard

Reasoning

The auctioneer is not a party to the suit, so orders against him would breach the right to be heard. The goods were attached before rent arrears were cleared, so the auctioneer is entitled to his fees and has a lien. Any claim for unlawful attachment must be brought as a separate action for damages.

p. 4
03

Whether the Applicant is entitled to indemnity and compensation for alleged irregular attachment

Holding

No - damages for alleged unlawful action are recoverable through a separate action which has not been filed

Reasoning

The present application was not for determination of the lawfulness of the attachment. Nothing in it provides a basis for assessing alleged damages, and the Auctioneers Act contemplates recovery of such damages through an action, which the Applicant has not instituted.

p. 4

Legal principles established

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  • Where proceedings are before the court and there is a dispute as to auctioneer's fees with no agreement, the Deputy Registrar may tax the auctioneer's bill under Rule 55(2) of the Auctioneers Rules
  • No adverse orders may be made against a non-party without affording that party an opportunity to be heard
  • An auctioneer who attached goods before rent arrears were cleared is entitled to payment of his fees and retains a lien over the attached property pending settlement

Court orders

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  1. 1.The auctioneer's bill to be filed by the auctioneers and taxed by the Deputy Registrar of the court under Rule 55(2) of the Auctioneers Rules (prayer 4 allowed partially)
  2. 2.Prayer 5 found misplaced and not granted as the attached goods have not been sold
  3. 3.Prayer 6 (indemnity and compensation) disallowed
  4. 4.Costs of the application granted to the 3rd Respondent
Jurisdiction invoked
Dispute referred to taxation/assessment of auctioneer's fees under Rule 55(2) of the Auctioneers Rules in proceedings before the court

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, "Kimuyu v Ngulili & 2 others (Environment and Land Case 040 of 2024) [2025] KEELC 6503 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6503/eng@2025-07-03

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