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ELRCDismissedChamber Summons dated April 3, 2023 arising from Miscellaneous Application 21 of 2022 (number not stated on the face of the judgment)· [2023] KEELRC 1435 (KLR)

Njau t/a The Place v Onsongo t/a Hegeons Auctioneers (Miscellaneous Reference Application 12 of 2022) [2023] KEELRC 1435 (KLR)

Employment and Labour Relations Court
6 June 2023
3,436 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a ruling of the Employment and Labour Relations Court on a Chamber Summons dated April 3, 2023, brought under rule 55(5) of the Auctioneers Rules, seeking to set aside the decision of Deputy Registrar Hon. Margaret Kyalo dated February 14, 2023 taxing an auctioneer's bill of costs in Miscellaneous Application 21 of 2022, and a declaration that the Applicant was not liable to pay the auctioneer's costs. The dispute arose from execution of the decree in ELRC Cause No. 99 of 2016 (Gladys Nyambura v Nicholas Njau t/a The Place): the auctioneer, Hezron Getuma Onsongo, proclaimed goods belonging to Ripple Grill and Lounge Limited, a third party, after which the decretal sum of Kshs 130,080 was paid on April 28, 2022; an objection by Ripple Grill was upheld on May 17, 2022, but the auctioneer nonetheless taxed his bill of costs. The Respondent raised a preliminary objection on jurisdiction, contending the application, styled a 'Reference', offended rule 55(4) and (5) of the Auctioneers Rules, which prescribe an appeal by chamber summons filed within 7 days. He further argued the application was overtaken by events since the fees had been paid. The Applicant, relying on the Sinohydro decision, submitted that substance prevails over the mislabelling of the application. The court held that the Auctioneers Rules mandate an appeal within 7 days and that filing a reference was a procedure not contemplated by the rules, rendering the application irregularly before the court. Even though leave to file out of time had been obtained, the application was found without merit and dismissed. No separate costs order appears in the disposition.

Key legal issues

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01

Whether an application styled a 'Reference' can sustain a challenge to taxation of an auctioneer's bill of costs

Holding

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.

Reasoning

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.

p. 7
02

Whether the Applicant was liable to pay the auctioneer's costs for a proclamation made against third-party goods

Holding

Not determined; the application was dismissed on the jurisdictional/procedural ground without reaching the merits.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Chamber Summons dated April 3, 2023 was found without merit and dismissed

Authorities

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Legislation

  • Auctioneers Rulesrule 55(5), rule 55(4), rule 55, rule 7
  • Auctioneers Actsection 7 (including section 7(c))
  • Employment and Labour Relations Court Procedure Rulesrule 2
  • Advocates Act (Advocates Remuneration Order)paragraph 11 / rule 11
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (14)

  • Sinohydro Corporation Limited v Samson Itonded Tumbo t/a Dominion Yards Auctioneers
    [2021] eKLR
  • Mukhisa Biscuits Manufacturing Co. Ltd v West End Distributors Company Limited
    [1969] EA 696
  • James O Makori T/A Lifewood Traders Auctioneers v Star Publications Ltd
    [2022] eKLR
  • Cooperative Bank of Kenya Ltd v Jeoffrick N Muinde t/a Kimu Auctioneers
    [2019] eKLR
  • Owners of Motor Vessel 'Lilian S' v Caltex Oil (K) Limited
    [1989] eKLR
  • Ocheja Emmanuel Dangana v Hon. Attai Aidoko Alo Usman & others
    SC 480/2011 and SC 11/2012 (Consolidated)
  • Kiminza t/a Autoland Auctioneers v Mistry Valji Naran Mulji
    [2017] eKLR
  • St Elizabeth Academy Karen Limited v Joseph Gikonyo t/a Garam Investment
    (Miscellaneous Application No. 488 of 2013) [2022] KEHC 133 (KLR)
  • Joel Titus Musya T/A Makuri Enterprises v Southern Credit Trading Corporation
    Misc. Civil Application No. 544 of 2004
  • Ezekiel Kiminza T/A Auto Land Auctioneers v Mistry Valji Naran Mulji
    ELC Misc. Application No. 21 of 2016 (Mombasa)
  • Machira & Co. Advocates v Magugu
    [2002] 2 EA 428
  • Jafred Wamukoya & Gideon Osundwa v Kennedy Shikuku t/a Eshikhoni Auctioneers and Ibrahim Muhumed
    [2021] eKLR
  • Nadeem A Kana v Lucy Wambui Mwangi
    [2021] eKLR
  • Oscar Otieno Odongo t/a Odongo Investment Auctioneers v Sukari Industries Limited
    [2019] eKLR
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

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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, "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.