Agricultural Society of Kenya v Benjamin K Kwambai & another [2021] KEELRC 985 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction to strike out a bill of costs filed in the wrong court
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.
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.
Whether the lapse of the 7-day reference period under Rule 55(5) barred the application
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.
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.
Legal principles established
#- 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
#- 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.The Respondents to meet the costs of the motion
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.