Mutia Muindi t/a Mutibra Auctioneers v CFC Stanbic Bank Ltd Garnishee & another [2015] KEELRC 623 (KLR)

Rule 55(5) allows only 7 days to appeal against taxation of an auctioneer's bill. The decision was delivered on 1.4.2015 and the appeal lodged on 13.4.2015. The appellant's excuse that two Easter holidays and a Sunday should be excluded failed because Order 50 rule 2 of the Civil Procedure Rules excludes such days only where the period is 6 days or less. Time bar is procedural and substantive and extinguishes the court's authority; no extension of time was sought or obtained, so the appeal had to be struck out.

The appellant argued the taxed sum of Kshs.21,763,126.00 was manifestly excessive contrary to the Auctioneers Act and its Rules, relying on the fourth schedule. The respondents relied on authority that a taxing officer's decision should not be disturbed absent an error of principle or manifestly excessive fee. However, because the court found the appeal time barred and therefore outside its jurisdiction, it did not rule on the quantum of costs.

The appellant complained that the Deputy Registrar's refusal of an adjournment denied her a fair hearing and that reasons for objections to the bill were not recorded. The respondents contended the appeal was not the proper forum for that complaint. The court did not adjudicate this ground because it held the appeal was time barred and struck out on jurisdictional grounds.

The 1st Respondent pointed out that the appeal lacked the typed proceedings and the impugned ruling. The court agreed the record was incomplete, observing that an appellant must always prepare a complete record of appeal. However, it noted the default may have been caused by the Deputy Registrar's delay in supplying the documents, and treated these as issues of form not warranting striking out on their own.