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ELRCPartially AllowedChamber Summons dated 2nd May 2023 (not stated in the judgment)· [2023] KEELRC 3165 (KLR)

Shikuku t/a Eshikhoni Auctioneers v Chandai (Miscellaneous Application E007 of 2023) [2023] KEELRC 3165 (KLR)

High Court of Kenya (Judge in Chambers), Bungoma
30 November 2023
2,046 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 an auctioneer can only charge fees backed by warrants of attachment, but courts should not dismiss bills over paperwork technicalities.

What this practically means

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Executive summary

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The Applicant auctioneer appealed, by chamber summons dated 2nd May 2023 under Rule 55(4) of the Auctioneer Rules, against the taxing master's dismissal on 25th April 2023 of its bill of costs dated 2/3/2023. The bill related to auctioneer fees arising from instructions to execute warrants of attachment and sale issued in Bungoma ELC Misc. Appl (JR No. 2 of 2020). The applicant contended the taxing master wrongly dismissed the bill on the basis of a consent, whereas that consent was between a different auctioneer firm and the respondent. The respondent opposed, arguing the application was filed out of time and defective, and that all fees had been paid. The court framed two issues: whether the application was properly before the court in form and time, and whether the applicant was entitled to the reliefs sought. It held the appeal was filed within the seven days allowed by Rule 55(5) and invoked Article 159(2)(d) to disregard formal objections. On the merits, the court found the taxing master erred in holding that a consent covered the fees for the warrant for the outstanding decretal amount of Kshs. 29,305. However, it observed that no warrant was produced to support the proclamation of 21 October 2022, and that item 1 of the bill (Kshs. 4,000) and related transport costs should be disallowed. The court remitted the bill of costs to the taxing master for taxation in light of its observations and ordered each party to bear its own costs. Judgment delivered by Jemimah Keli, Judge, at Bungoma on 30th November 2023.

Key legal issues

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01

Timeliness and form of the appeal from the taxing master

Holding

The application was properly before the court, having been filed within 7 days of the taxing master's decision as required by Rule 55(5) of the Auctioneer Rules, and the respondent gave no particulars of any delay

Reasoning

The taxing master's decision was dated 25th April 2023 and the chamber summons was filed on 2nd May 2023, within the 7-day window under Rule 55(5). Although a copy of the decision was not provided, the respondent failed to give particulars of the alleged delay for comparison. The court invoked Article 159(2)(d) to discount purely formal objections.

p. 4
02

Whether the taxing master erred in dismissing the bill of costs on the basis of an alleged consent

Holding

The taxing master erred: the consent on the file related to the costs of a different auctioneer (Dominion Yard) and not to the auctioneer fees arising from the warrant for the outstanding decretal amount of Kshs. 29,305

Reasoning

The applicant's earlier costs had been settled after warrants of arrest, pursuant to a consent entered by the firm of Samson Tumbo T/A Dominion Yard. The second bill related to subsequent execution instructions for a balance of Kshs. 29,305, to which no consent by the applicant's firm related. The taxing master misapprehended the facts, and her dismissal of the bill on that ground was erroneous, though the court noted no copy of the taxing master's decision was provided.

p. 5
03

Entitlement to item 1 of the bill of costs and transport costs

Holding

Item 1 of the bill and the related transport costs should be disallowed because no warrant was produced to support the proclamation of 21 October 2022

Reasoning

Part II of the Fourth Schedule of the Auctioneer Rules provides that Kshs. 4,000 is payable on receipt of a court warrant or letter of instructions. The applicant produced no warrant pegging the proclamation of 21 October 2022. Without warrants of attachment the proclamation had no basis, so the fee for item 1 and the transport costs for that trip fall away.

p. 5

Legal principles established

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  • An appeal from a taxing master's decision on an auctioneer's bill lies to a Judge in Chambers and must be filed within 7 days of the decision under Rule 55(5) of the Auctioneer Rules
  • A court should be guided by Article 159(2)(d) of the Constitution to ignore arguments relating to form and procedural issues and administer substantive justice
  • An auctioneer cannot proclaim without warrants of attachment; in their absence the item claiming fees for the warrants ought to be disallowed

Court orders

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  1. 1.The Court holds that the Taxing Master erred in holding there was a consent on the auctioneer fees for the warrant of attachment for the outstanding decretal amount of Kshs. 29,305
  2. 2.The Auctioneer's bill of costs dated 19th January 2022 is returned to the Taxing Master for taxation taking into account the observations of the Court
  3. 3.Each party to bear own costs in the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Auctioneer Rules, 1997Rule 55(4) and (5)
  • Auctioneer Rules, 1997Part II of the Fourth Schedule

Cases cited (1)

  • scar Otieno Odongo t/a Odongo Investment Auctioneers v Sukari Industries Limited
    [2019] eKLR
On appeal from
Taxing Master (Bungoma)
Jurisdiction invoked
Rule 55(4) and (5) of the Auctioneer Rules, 1997 - appeal from a decision of a registrar or magistrate 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, "Shikuku t/a Eshikhoni Auctioneers v Chandai (Miscellaneous Application E007 of 2023) [2023] KEELRC 3165 (KLR)", Case Analysis (2023). Chamber Summons dated 2nd May 2023 (not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3165/eng@2023-11-30

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