Shikuku t/a Eshikhoni Auctioneers & another v National Bank of Kenya Ltd (Civil Miscellaneous Application 64 of 2022) [2023] KEELRC 1043 (KLR)
The bottom line
#Challenging an auctioneer's taxed fees in Kenya requires an appeal to a judge within seven days—using a motion instead gets your case thrown out with costs.
What this practically means
#Executive summary
#Key legal issues
#Competence of a motion/reference to set aside ex parte taxation of an Auctioneers Bill of Costs
The application was incompetent because Rule 55(4) and (5) of the Auctioneers Rules requires a party dissatisfied with a registrar's decision on an auctioneer's fees to file an appeal by chamber summons within 7 days
The court examined Rule 55 of the Auctioneers Rules, which expressly provides that an appeal from a decision of a registrar on auctioneers' fees lies to a judge in chambers and must be filed within 7 days. The Respondent instead filed a notice of motion styled as a reference, a procedure unknown to the Rules, following the reasoning in Ezekiel Kiminza. Because the provision is mandatory and unambiguous, the court had no discretion to entertain the motion, which was struck down as incompetent and an abuse of process.
Interpretation of plain and unambiguous procedural provisions
Where the terms of a provision are plain and unambiguous, the court has no interpretive wiggle room
Relying on Aprim Consultantz v Parliamentary Service Commission, the court held that clear statutory language admits no contrary interpretation. Rule 55's mandatory terms therefore foreclosed any latitude to treat the Respondent's motion as a proper challenge to the taxation.
Legal principles established
#- The procedure for challenging a taxing officer's decision on an Auctioneers Bill of Costs is by appeal to a Judge in Chambers filed within 7 days, and Rule 55 is mandatory
- A motion or reference filed instead of the prescribed appeal is incompetent and an abuse of process
Court orders
#- 1.The Respondent's notice of motion dated February 7, 2023 is dismissed
- 2.Costs of the application awarded to the Auctioneer (Applicant)
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act; Order 10 Rule 11(1) and Order 22 Rule 22 of the Civil Procedure Rules; Rule 55 of the Auctioneers Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shikuku t/a Eshikhoni Auctioneers & another v National Bank of Kenya Ltd (Civil Miscellaneous Application 64 of 2022) [2023] KEELRC 1043 (KLR)", Case Analysis (2023). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1043/eng@2023-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.