Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedMiscellaneous Application dated 2nd May 2024 (ELRC, Kisumu)· [2024] KEELRC 2663 (KLR)

Wainanina t/a Seventy-Seven Auctioneers v SBI International Holdings AG Kenya (Miscellaneous Cause E045 of 2024) [2024] KEELRC 2663 (KLR)

Employment and Labour Relations Court
29 October 2024
NMNzioki Wa Makau
981 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

An auctioneer cannot hand execution instructions to another auctioneer, and the ELRC dismissed a Kshs. 347,140 costs claim, awarding punitive higher-scale costs.

What this practically means

#

Executive summary

#
The Applicant, an auctioneer trading as Seventy Seven Auctioneers, moved the Court by application dated 2nd May 2024 seeking party and party costs of Kshs. 347,140/- arising from execution in Kisumu ELRC Misc. No. E013 of 2020, contending that he was instructed to execute a money decree, proclaimed the Respondent's movable property and was unpaid. The Respondent filed a preliminary objection asserting the bill of costs was filed by a stranger to the proceedings, that no proclamation issued, that the costs had already been paid under a prior bill, and that the Court lacked jurisdiction since an auctioneer cannot instruct another auctioneer. The Court held the preliminary objection was not a proper one as it required ascertainment of facts, and therefore considered the motion alongside it. Examining the record, the Court found the underlying cause was Rono Cheruiyot & 15 others v SBI International Holdings AG Kenya, decided by Nduma J. on 19th July 2019; that warrants of attachment were for Kshs. 125,000/- while the sum claimed was Kshs. 347,140/-; and that no returns of warrants had been filed in any of the three miscellaneous applications despite attachment of tractors, a crane and a prime mover. Applying the maxim delegatus non potest delegare, the Court held an auctioneer cannot instruct another auctioneer, and further held the action was res judicata, Baari J. having conclusively determined the question of execution on 26th February 2024. The motion was dismissed, the preliminary objection allowed, and costs awarded to the Respondent on the higher scale due to vexatious litigation.

Key legal issues

#
01

Delegation of an auctioneer's authority

Holding

The Applicant, an auctioneer, could not be invested with the cause by another auctioneer; delegated powers cannot be further delegated

Reasoning

The Court invoked the common law maxim delegatus non potest delegare governing agency, holding that the auctioneer originally granted the power to execute (Mary Nyaboke t/a Lister Auctioneers) appears to have been supplanted by Seventy Seven Auctioneers, which repeatedly made applications without indicating the outcome of the proclamations and attachments.

p. 2
02

Res judicata in respect of execution

Holding

The issue of execution had been conclusively determined by Baari J. on 26th February 2024 and could not be revisited

Reasoning

The Court found that Misc. Application E013 of 2020 and E024 of 2024 had already litigated the execution, with warrants of attachment for Kshs. 125,000/- issued and break-in orders granted by Baari J. The present motion for Kshs. 347,140/- was therefore barred as res judicata.

p. 2
03

Compliance with execution procedure and status of returns

Holding

No returns of warrants, executed or unexecuted, were filed in any of the files despite attachment of property valued in the millions

Reasoning

The Court noted warrants for Kshs. 125,000/- but a claim of Kshs. 347,140/-, and that proclamations covering six shovel tractors, a crane and a prime mover had no returns explaining their fate, raising concern about the conduct of the execution and the applicant's involvement in the causes.

p. 2

Legal principles established

#
  • An auctioneer cannot instruct another auctioneer; an auctioneer receives instructions from a client (the decree holder) and cannot further delegate that power
  • A preliminary objection that requires ascertainment of facts is not a proper preliminary objection

Court orders

#
  1. 1.The Applicant's application dated 2nd May 2024 seeking party and party costs is declined and dismissed
  2. 2.The Respondent's preliminary objection is allowed
  3. 3.Costs of the preliminary objection and application awarded to the Respondent on the higher scale due to the vexatious litigation

Authorities

#

Legislation

  • Advocates (Remuneration) Orderparagraph 69(3)

Cases cited (3)

  • Rono Cheruiyot & 15 others v SBI International Holdings AG Kenya
  • Kisumu Misc. ELRC No. E013 of 2020 – Mary Onywondi Nyaboke t/a Lister Auctioneers v SBI International Holdings AG Kenya
  • Kisumu Misc. ELRC No. E024 of 2024 (break-in orders application)
Jurisdiction invoked
Inherent jurisdiction of the Employment and Labour Relations Court over taxation/awards of party and party costs arising from execution of a decree in ELRC cause Rono Cheruiyot & 15 others v SBI International Holdings AG Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wainanina t/a Seventy-Seven Auctioneers v SBI International Holdings AG Kenya (Miscellaneous Cause E045 of 2024) [2024] KEELRC 2663 (KLR)", Case Analysis (2024). Miscellaneous Application dated 2nd May 2024 (ELRC, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2663/eng@2024-10-29

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