Njau t/a The Place v Onsongo t/a Hegeons Auctioneers (Miscellaneous Reference Application 12 of 2022) [2023] KEELRC 1435 (KLR)
The bottom line
#An Employment and Labour Relations Court dismissed a challenge to an auctioneer's fees because it was filed as a 'reference' instead of the appeal required within 7 days under Kenya's Auctioneers Rules.
What this practically means
#Executive summary
#Key legal issues
#Whether an application styled a 'Reference' can sustain a challenge to taxation of an auctioneer's bill of costs
No. Rule 55 of the Auctioneers Rules prescribes an appeal within 7 days; filing a reference is a procedure not contemplated by the rules and renders the application irregularly before the court.
The court held that the Auctioneers Rules mandate a party aggrieved by a decision on auctioneer's costs to file an appeal within 7 days. Although the Applicant invoked rule 55(5) and relied on authority that labelling an appeal a reference does not change its substance, the court found the application as filed was a reference and therefore irregular. Even though leave had been obtained to file out of time, the fatal defect was the wrong procedural vehicle, and the application failed on that basis alone.
Whether the Applicant was liable to pay the auctioneer's costs for a proclamation made against third-party goods
Not determined; the application was dismissed on the jurisdictional/procedural ground without reaching the merits.
The Applicant contended the taxing master erred in taxing the bill without first determining who, between the judgment debtor and the instructing party, was liable, given that the proclamation targeted goods of Ripple Grill and Lounge Limited and an objection to it was upheld. The Respondent maintained the proclamation was valid and prompted payment. The court did not resolve these rival contentions, dismissing the application on the threshold procedural defect.
Legal principles established
#- A party opposed to a determination on auctioneer's costs must file an appeal under rule 55 of the Auctioneers Rules within 7 days; a 'reference' is not a procedure contemplated by those rules
Court orders
#- 1.The Chamber Summons dated April 3, 2023 was found without merit and dismissed
- On appeal from
- Deputy Registrar, Employment and Labour Relations Court (Taxing Master)
- Miscellaneous Application 21 of 2022
- Jurisdiction invoked
- Rule 55 of the Auctioneers Rules, 1997 (appeal against taxation of an auctioneer's bill of costs to a judge in chambers)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njau t/a The Place v Onsongo t/a Hegeons Auctioneers (Miscellaneous Reference Application 12 of 2022) [2023] KEELRC 1435 (KLR)", Case Analysis (2023). Chamber Summons dated April 3, 2023 arising from Miscellaneous Application 21 of 2022 (number not stated on the face of the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1435/eng@2023-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.