Minnie Mbue v Jamii Bora Bank Limited & another [2019] KEELRC 2048 (KLR)
The bottom line
#A Nairobi court cancelled an auctioneer's seizure of a company's essential work equipment but refused to refund the agreed Kshs.1.5 million fee.
What this practically means
#Executive summary
#Key legal issues
#Whether the Kshs.1,500,000.00 paid as auctioneers' fee before any proclamation was recoverable by the applicant
The payment was valid; the fee was voluntarily negotiated and agreed between the applicant's Legal Manager and the auctioneer, as confirmed by the applicant's own letters (exhibits CK2, CK4 and CK6), and no ground existed to disturb the agreement.
The Court examined the exhibits on the replying affidavit showing that after settlement of the decretal sum by instalments was agreed, the applicant's Legal Manager undertook to negotiate and settle the auctioneers' fees directly, and confirmed the fee had been negotiated and paid. The applicant's argument based on assessment against the value of goods attached rather than the decretal sum did not displace the voluntary agreement. Section 26 of the Auctioneers Act was inapplicable because the application was not an 'action' as envisaged by that section.
Whether the proclamation of 17.07.2018 was amenable to nullification
Yes. The proclaimed goods - computers, laptops, photocopying machines, cabinets and printers - were the applicant's books of trade and tools and implements of trade, excluded from attachment under section 44(1)(ii) and (iv) of the Civil Procedure Act.
The applicant's evidence that the proclaimed items were excluded categories under section 44(1)(ii) and (iv) was unchallenged. Although the proclamation followed pressure from the claimant's advocates who thereafter withdrew instructions, the statutory exemption applied, and the Court held the proclamation liable to nullification as prayed.
Whether the Court was functus officio as urged in the preliminary objection
The preliminary objection failed; satisfaction of a decree does not amount to a fresh cause of action and is properly determined by the Court which gave the judgment and decree.
The 2nd respondent objected that the Court had rendered judgment in the suit and had already determined part of the application, so it was functus officio. The Court accepted the applicant's submission that execution and satisfaction matters remain within the competence of the Court that issued the decree, and dismissed the objection.
Legal principles established
#- Matters of satisfaction of a decree do not amount to a fresh cause of action and are properly determined by the Court which gave the judgment and decree; such a Court is not functus officio in dealing with execution-related applications.
- Books of trade and tools and implements of a person in the performance of its trade or profession are excluded from proclamation and attachment under section 44(1)(ii) and (iv) of the Civil Procedure Act, and a proclamation attaching such goods is liable to be nullified.
- Where parties voluntarily agree on auctioneers' fees and there is no established ground to interfere with the agreement, the Court will respect the parties' contractual position.
Court orders
#- 1.The proclamation by Charles Mwangi Kamande t/a Chaka & Company Auctioneers dated 17.07.2018 is nullified
- 2.The preliminary objection filed on 23.07.2018 for the 2nd respondent is dismissed
- 3.Each party to bear own costs of the application and the preliminary objection
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over satisfaction of its decree, under the Civil Procedure Act (sections 1A, 1B, 3A and 44(1)(ii) and (iv)) and the Auctioneers Act (sections 26 and 28)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Minnie Mbue v Jamii Bora Bank Limited & another [2019] KEELRC 2048 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2048/eng@2019-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.