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ELRCAllowedAppeal No 34 of 2019· [2021] KEELRC 985 (KLR)

Agricultural Society of Kenya v Benjamin K Kwambai & another [2021] KEELRC 985 (KLR)

High Court of Kenya (matter transferred to this Court by Mbogholi Msagha J on 24th September 2019; the extract does not print the division/station)
21 September 2021
919 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The High Court struck out an auctioneer's bill of costs filed in the wrong court after the case file had been transferred, warning against circumventing court orders.

What this practically means

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Executive summary

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The Appellant/Applicant, the Agricultural Society of Kenya, moved the Court by notice of motion dated 23rd June 2021 seeking suspension and striking out of an Auctioneer's Bill of Costs dated 23rd October 2020 filed by Faith Muthee T/A Compliance Auctioneers in NBI HC COMM No. 1164 of 2019, where stay orders pending the appeal were in place and security had been deposited. The Respondents opposed, arguing that the Deputy Registrar's taxation decision of 21st May 2021 could only be challenged by reference within 7 days under Rule 55(5) of the Auctioneers Rules; that the Court had no power to suspend or strike out an already taxed bill; that an auctioneer cannot be joined to an appeal post-judgment; and that an auctioneer is entitled to be paid for work done notwithstanding a stay order. The court held that the file had been transferred to this Court on 24th September 2019 by Mbogholi Msagha J, and that order stood unimpeached; consequently any proceedings in the High Court after the transfer were a nullity ab initio. The Auctioneer had cunningly filed the bill in a High Court division where the facts were not apparent. The court struck out the bill of costs as it had no place in the matter before either the High Court or its Deputy Registrar, and ordered the Respondents to pay the costs of the motion for attempting to circumvent this Court's orders. Judgment delivered at Nairobi on 21st September 2021 by Nzioki wa Makau J.

Key legal issues

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01

Jurisdiction to strike out a bill of costs filed in the wrong court

Holding

The High Court (Commercial Division) had no jurisdiction to tax the Auctioneer's Bill once the file had been transferred to this Court; the bill filed there was struck out.

Reasoning

The file was transferred to this Court on 24th September 2019 by Mbogholi Msagha J and that order was never challenged or reviewed, so it stands unimpeached. Taxation proceedings continued in the High Court after that date were invalid ab initio, and the Auctioneer's bill had no place before that court or its Deputy Registrar.

p. 2
02

Whether the lapse of the 7-day reference period under Rule 55(5) barred the application

Holding

The court disregarded the Respondents' Rule 55(5) objection, holding the taxation itself was a nullity for want of jurisdiction, and struck out the bill.

Reasoning

The court conceded the decision of the Deputy Registrar would ordinarily be challenged by reference within 7 days under Rule 55(5), and that the Applicant did not do so. However, it attributed the situation to the Auctioneer filing the bill in a court devoid of jurisdiction after the transfer, and held the inevitable result was that the bill must be struck out.

p. 2

Legal principles established

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  • Proceedings commenced in a court after the file has been transferred away from that court are a nullity ab initio
  • An auctioneer's bill must be filed for taxation in the court seized of the main matter; filing it elsewhere to circumvent pending orders is impermissible

Court orders

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  1. 1.The Bill of Costs dated 23rd October 2020 filed in NBI HC COMM NO. 1164 of 2019 before the High Court is struck out
  2. 2.The Respondents to meet the costs of the motion

Authorities

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Legislation

  • Auctioneers ActRule 55(2) (as cited by Respondents)
  • Auctioneers RulesRule 55(5)
On appeal from
High Court of Kenya (Commercial Division)
NBI HC COMM NO. 1164 of 2019
Jurisdiction invoked
Auctioneers Act and Auctioneers Rules (Rule 55), in an appeal pending before this Court pursuant to transfer order of 24th September 2019

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, "Agricultural Society of Kenya v Benjamin K Kwambai & another [2021] KEELRC 985 (KLR)", Case Analysis (2021). Appeal No 34 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/985/eng@2021-09-21

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