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ELRCDismissedELRC Miscellaneous No. E039 of 2023 (Eldoret)· [2024] KEELRC 1119 (KLR)

Friends Lugulu Mission Hospital v Tumbo t/a Creescent Auctioneers (Miscellaneous Civil Appeal 39 of 2023) [2024] KEELRC 1119 (KLR)

Employment and Labour Relations Court
25 April 2024
MOMaureen Onyango
1,297 words in judgment
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The bottom line

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The Employment and Labour Relations Court dismissed a challenge to an auctioneer's fee assessment because it was filed outside the strict 7-day appeal window.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Eldoret (Maureen Onyango, J) determines an application dated 19th September 2023 seeking to set aside the Deputy Registrar's decision of 13th September 2023 assessing fees payable to an auctioneer (the Respondent) at Kshs. 167,274, and alternatively asking the court itself to assess the fees. The fees arose from execution against the Applicant pursuant to warrants of attachment issued in Eldoret ELRC No. E004 of 2022. The Applicant, through its Acting CEO Grace Khayota Tago, contended that the Deputy Registrar erred in assessing fees absent a dispute, misapplied the Fourth Schedule of the Auctioneers Rules, 1997, and awarded excessive fees unsupported by evidence. The Respondent opposed, arguing there was no competent appeal, no certificate of costs was attached, no written request for reasons was made, and the application was premature. The Respondent relied on authorities including South Nyanza Sugar Co. Ltd vs Simeona A. Opola on compliance with Order 42 Rule 13(4) of the Civil Procedure Rules. The court framed the sole issue as whether the Applicant was entitled to orders setting aside the assessment. Applying Rule 55(4) and (5) of the Auctioneers Rules, 1997, which requires an appeal from a registrar's assessment by chamber summons within 7 days, the court held that the application was filed outside the statutory period without any extension of time and was therefore incompetent. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Applicant's application to set aside the Deputy Registrar's assessment of auctioneer's fees was properly before the court

Holding

The application was incompetent as it was not filed within the 7-day period prescribed by Rule 55(4) and (5) of the Auctioneers Rules, 1997, and no extension of time was sought.

Reasoning

Rule 55 of the Auctioneers Rules, 1997 prescribes the procedure for disputing an auctioneer's fees and provides that an appeal from a registrar's decision lies to a judge in chambers by way of a chamber summons filed within 7 days. The taxing master's ruling was delivered on 13th September 2023, so the appeal should have been filed by 21st September 2023. The application was filed on 20th September 2023 but the court found it was outside the statutory time and no extension had been sought.

p. 3

Legal principles established

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  • An appeal against a registrar's assessment of an auctioneer's fees must be filed by way of chamber summons within 7 days of the decision under Rule 55(4) and (5) of the Auctioneers Rules, 1997; an application filed outside this period without extension of time is incompetent.

Court orders

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  1. 1.The application dated 19th September 2023 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Auctioneers Rules, 1997Rule 55(1), (2), (3), (4), (5)
  • Auctioneers Rules, 1997Fourth Schedule
  • Civil Procedure RulesOrder 42 Rule 13(4)

Cases cited (4)

  • Oscar Otieno t/a Odongo Investment Auctioneers v Sukari Industries Limited
    (2019) eKLR
  • Ndegwa Kamau t/a Sideview Garage vs Fredrick Isika Kalumbo
    (2016) eKLR
  • Law Society of Kenya vs Center of Human Rights & Democracy & 12 others
    (2014) eKLR
  • South Nyanza Sugar Co. Ltd vs Simeona A. Opola
    (2020) eKLR
Jurisdiction invoked
Rule 55(4) of the Auctioneers Rules, 1997 - appeal from a registrar's assessment of auctioneer's fees 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, "Friends Lugulu Mission Hospital v Tumbo t/a Creescent Auctioneers (Miscellaneous Civil Appeal 39 of 2023) [2024] KEELRC 1119 (KLR)", Case Analysis (2024). ELRC Miscellaneous No. E039 of 2023 (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1119/eng@2024-04-25

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