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ELRCPartially AllowedChamber Summons dated 29th September 2020· [2022] KEELRC 946 (KLR)

Kennedy Shikuku/ t/a Eshikhoni Auctioneers v China National Aero- Technology International Engineering [2022] KEELRC 946 (KLR)

High Court of Kenya
31 January 2022
2,773 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled auctioneer fees must be based on the value of attached property, and auctioneers appeal under the Auctioneers Rules, not advocates' rules.

What this practically means

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Executive summary

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The appellant, an auctioneer, appealed by chamber summons against the decision of the Taxing Master/Deputy Registrar E. N. Mwenda dated 25th September 2020, seeking to set aside the taxation of items c, d, e, f, g, h, i, j, k, l and m of his bill of costs dated 4th March 2020. The respondent filed a preliminary objection contending that the appeal violated paragraph 11 of the Advocates (Remuneration) Order 2009. The court overruled the objection, holding that auctioneers are governed by the Auctioneers Rules; under Rule 55(4) the appeal lies to a Judge in chambers, and paragraph 11 of the Advocates (Remuneration) Order did not apply since the auctioneer was an agent of a party, not a party to the suit. The application was also filed within the 7 days allowed by Rule 55(5). On the merits, the court held that the taxing master erred in law in disallowing expenses related to the attachment on grounds of illegality, because Justice Nderi had already ruled that the attachment of motor vehicle KCM 465C was procedural and lawful. The court further held, applying the Court of Appeal decision in National Credit Bank Ltd v S.K. Ndegwa Auctioneers, that attachment commission must be based on the value of the attached property, not the decretal sum. The appeal failed on item E (half commission on sale, for want of evidence of costs incurred towards the sale) and the court declined to disturb items C, F and L. The bill of costs was remitted to the taxing master for reassessment of items d, g, h, i, j and k, with a certificate of costs to issue thereafter. Each party was ordered to bear its own costs.

Key legal issues

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01

Applicable procedure for challenging a taxing master's decision against an auctioneer

Holding

Rule 55(4) of the Auctioneers Rules applies, not paragraph 11 of the Advocates (Remuneration) Order; the chamber summons appeal was properly before the court

Reasoning

The court held the Auctioneer was an agent of a party, not a party to the suit, so paragraph 11 did not apply. It relied on Machira & Co. Advocates v Magugu and Sino Hydro Corporation Limited v Samson Tonde Tumbo, and adopted Odunga J's holding that no separate reasons need be sought where reasons are contained in the decision itself.

p. 2
02

Whether the taxing master erred in disallowing items related to the attachment as unlawful

Holding

The taxing master erred in law in finding the proclamation and attachment unlawful, since Justice Nderi had held the attachment procedural and lawful; items g, h, i and k set aside for reassessment

Reasoning

The taxing master had disallowed all expenses related to the seizure because a different vehicle than the one proclaimed was attached. However, a ruling by Justice Nderi dated 13th May 2020 had already found the attachment of KCM 465C procedural and lawful. That finding was binding and could only be altered by the Judge himself or the Court of Appeal.

p. 3
03

Basis of calculating attachment commission (item D)

Holding

Commission on attachment should be based on the value of the attached motor vehicle, not the decretal sum; bill remitted for reassessment

Reasoning

Relying on Ostrich Lion Auctioneers v Paul Muchuri and the Court of Appeal decision in National Credit Bank Ltd v S.K. Ndegwa Auctioneers, the court held auctioneer fees ought to be calculated based on the value of property attached, and that proclamation is effectively attachment.

p. 3
04

Timeliness of the appeal

Holding

The application filed on 1st October 2020 was within the 7 days allowed by Rule 55(5)

Reasoning

The Deputy Registrar's decision was delivered on 25th September 2020 and the application was filed on 1st October 2020, within the 7-day window provided under the Auctioneers Rules.

p. 2

Legal principles established

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  • Auctioneers' appeals from taxation decisions are governed by Rule 55(4) of the Auctioneers Rules, not paragraph 11 of the Advocates (Remuneration) Order
  • A lower court or judge's finding binds the taxing master; only the judge himself or the Court of Appeal may alter it
  • Auctioneer's fees/commission on attachment should be calculated on the value of the attached property, not the decretal sum

Court orders

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  1. 1.Preliminary objection by the Respondent overruled and dismissed
  2. 2.Bill of costs remitted to the taxing master Deputy Registrar E. N. Mwenda to re-assess fees on items d, g, h, i, j and k
  3. 3.Other items to remain as taxed
  4. 4.Certificate of costs to issue by the Deputy Registrar after re-assessment
  5. 5.Each party to bear own costs in the Application
On appeal from
Taxing Master / Deputy Registrar
Auctioneer's Bill of Costs dated 4th March 2020
Jurisdiction invoked
Rule 55(4) of the Auctioneers Rules - appeal from a decision of a Registrar to a Judge in chambers

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, "Kennedy Shikuku/ t/a Eshikhoni Auctioneers v China National Aero- Technology International Engineering [2022] KEELRC 946 (KLR)", Case Analysis (2022). Chamber Summons dated 29th September 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/946/eng@2022-01-31

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