Kamene Mukuti Musili & another v CFC Stanbic Bank Limited & 40 others [2021] KEELRC 211 (KLR)
The bottom line
#Kenya's Employment Court threw out a Kshs. 21.7 million auctioneer's bill because it ignored the Auctioneers Rules' fee scale, ordering it to be recalculated—though the bank must still pay.
What this practically means
#Executive summary
#Key legal issues
#Service of the notice of taxation and bill of costs on the 2nd respondents
The 2nd respondents were duly served through their advocates but chose not to attend taxation
Affidavits of service showed the taxation notices and bill of costs, addressed to the 2nd respondents care of Tindika & Company Advocates, were served on those advocates on 26.01.2015 and 23.02.2015. Service on the instructed advocates was valid service, so the claim of being unheard was unfounded; they were granted a chance to attend and failed to do so.
Liability of the 2nd respondents for the auctioneer's charges
The 2nd respondents, having instructed the auctioneer and having become solely liable after execution against the bank was nullified, are liable to pay the charges
The 2nd respondents admitted instructing the deceased auctioneer for execution. Following the court's ruling of 11.07.2019 in ELRCC No. 1262 of 2015 nullifying execution against the 1st respondent bank, which was not appealed, the 2nd respondents became solely liable to satisfy the auctioneer's charges, and the consent with the 1st respondent was a just progression.
Compliance with Rule 55 of the Auctioneers Rules and whether to set aside the certificate of costs
The bill was taxed as drawn without regard to Rule 55, an error of principle warranting setting aside and remittal for re-taxation
It was not disputed the bill was taxed as drawn without regard to Rule 55. Applying Kamunyori & Company Advocates v Development Bank of Kenya Limited, an error of principle can be inferred where an award is manifestly excessive. Comparing the party-and-party costs of Kshs. 5,682,828.00 in the same suit, the auctioneer's charges of Kshs. 21,763,126.00 appeared manifestly excessive.
Whether the 2nd respondents' application was res judicata or an abuse of process
It was not; the issues raised had not been previously raised and decided
The court found the matters in the application had not previously been raised and decided. The change in liability arose only from the 11.07.2019 ruling nullifying execution against the bank, and the consent with the 1st respondent was a legitimate progression rather than an abuse.
Legal principles established
#- Where the taxing master fails to apply the applicable scale rules (Rule 55 of the Auctioneers Rules), an error of principle is established justifying remittal for re-taxation
- A party duly served with notice of taxation who elects not to attend cannot later claim they were not heard, but may still establish an error of principle on the face of the award
- An award may be manifestly excessive by comparison with related taxed costs, inferring an error of principle
Court orders
#- 1.The ruling by the taxing officer determining the auctioneer's bill of costs dated 16.01.2015 and the ensuing certificate of costs dated 22.08.2014 were set aside
- 2.The application filed on 19.07.2021 by way of the amended notice of motion dated 08.07.2021 was determined as overtaken
- 3.The auctioneer's bill of costs dated 16.01.2015 was remitted to the taxing officer for re-taxation between the applicants and the 2nd respondents, the ensuing award to be satisfied by the 2nd respondents
- 4.The 2nd respondents to pay the applicants' costs of the two applications
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Section 51(2) of the Advocates Act, Order 12 Rule 7 of the Civil Procedure Rules and Rule 55 of the Auctioneers Rules, with Article 40 and 159 of the Constitution invoked in the 2nd respondents' application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamene Mukuti Musili & another v CFC Stanbic Bank Limited & 40 others [2021] KEELRC 211 (KLR)", Case Analysis (2021). Misc. Application No 2 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/211/eng@2021-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.