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ELRCPartially AllowedAppeal against the ruling of the Deputy Registrar in Kisumu ELRCC No. 187 of 2018 (Chamber Summons under Rule 55(3) & (4) of the Auctioneer Rules, 2017)· [2025] KEELRC 1508 (KLR)

Dominion Yards Auctioneers v Board of Management Nyangori Boys High School (Miscellaneous Case E018 of 2025) [2025] KEELRC 1508 (KLR)

Employment and Labour Relations Court
21 May 2025
2,719 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed auctioneers earn attachment fees once goods are proclaimed, even if a stay stops the sale later.

What this practically means

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Executive summary

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The auctioneer, Samson Itonde Tumbo t/a Dominion Yards Auctioneers, appealed by Chamber Summons under Rule 55(3) & (4) of the Auctioneer Rules, 2017 against a ruling of the Deputy Registrar at Kisumu delivered in February 2025, which taxed off items 3, 4 and 6 of his Bill of Costs arising from execution of warrants of attachment in Kisumu ELRC Cause No. 187 of 2018. The Deputy Registrar had held that item 4 (commission) failed because the court stayed the warrants on 20th May 2021 before sale commenced, that item 3 (inventory) lacked proof, and that item 6 (travelling) lacked proof of expenditure. The respondent filed no submissions. Gakeri J, applying first-appeal principles, held that proclamation of movable goods is legally and effectively an attachment under Rule 12 read with Rule 14 and Sale Form 2, so the auctioneer earned attachment fees under paragraph 4 of Part II of the Fourth Schedule once the goods were proclaimed on 13th May 2021, notwithstanding the subsequent stay; the Taxing Officer therefore erred on item 4. However, the proclamations were generic and did not comply with the mandatory requirements of Rule 12(1)(b), and no evidence showed an actual inventory was taken, so item 3 was rightly disallowed. Credible evidence of travel to serve the proclamation supported reasonable travelling expenses under item 6, to be assessed. The appeal was partially successful: the decisions on items 4 and 6 were set aside for reassessment by a different taxing officer, and each party was to bear its own costs.

Key legal issues

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01

Whether attachment/fees on attachment are earned upon proclamation despite subsequent stay orders

Holding

The Taxing Officer erred; commission under item 4 was payable because attachment is complete upon proclamation, and the subsequent stay does not disentitle the auctioneer to attachment fees

Reasoning

The court read Rule 12 with Rule 14 and Sale Form 2 to conclude that proclamation deprives the judgment-debtor of possession and places the goods in the custody of the law through the auctioneer. Following the Court of Appeal in National Industrial Credit Bank Ltd v S.K. Ndegwa Auctioneers, fees for attachment are payable as prescribed in paragraph 4 of Part II of the Fourth Schedule, based on the value of the goods attached, not the decretal sum, and the stay of warrants did not defeat the entitlement.

p. 5
02

Whether the auctioneer was entitled to fees for taking inventory (item 3)

Holding

Refused; the proclamations did not comply with the mandatory requirements of Rule 12(1)(b) and no proof of an actual inventory was adduced

Reasoning

The proclamations described goods generically ('assorted school furniture', 'assorted school stationery') without the number, condition and value of specific items, save for the two buses. No evidence was given of who took the inventory or when. The generalized descriptions betrayed the claim for taking inventory, and the charge of Kshs.30,000 was not merited.

p. 5
03

Whether travelling expenses (item 6) were payable

Holding

Yes; credible evidence showed the auctioneer travelled to serve the proclamation, and reasonable travelling expenses based on actual distance covered are payable

Reasoning

Although the Taxing Officer taxed off this item for want of proof of expenditure, the court found credible evidence that Samson I. Tumbo presented the proclamation at the respondent's school on 13th May 2021, a distance of about 94 kilometres, and held the appellant entitled to reasonable travelling expenses based on actual distance, to be assessed.

p. 6

Legal principles established

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  • Proclamation of movable goods is legally and effectively an attachment; the auctioneer is entitled to fees for attachment under paragraph 4 of Part II of the Fourth Schedule to the Auctioneer Rules once goods are proclaimed, even if sale does not proceed
  • A taxing officer's assessment can only be interfered with where the decision was based on an error of principle or the fee awarded was manifestly high or low
  • Compliance with Rule 12(1)(b) — indicating the value and condition of each specific item — is mandatory for a valid proclamation supporting a claim for taking inventory

Court orders

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  1. 1.The decision of the taxing officer on items 4 and 6 of the Appellant's Bill of Costs dated 23rd September, 2024 is set aside
  2. 2.The two items of the Bill of Costs be assessed by a different taxing officer
  3. 3.Each party to bear own costs of the appeal

Authorities

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Legislation

  • Auctioneer Rules, 2017Rule 55(3) & (4)
  • Auctioneer Rules, 20174th Schedule, Part II, paragraph 4
  • Auctioneer Rules, 2017Rule 12(1)
  • Auctioneer Rules, 2017Rule 14
  • Auctioneer Rules, 2017Sale Form 2 and Sale Form 3 of the Schedule
  • Advocates ActSection 40

Cases cited (7)

  • George Gikubu Mbuthia v Peter Njeru Mugo & 3 Others
    [2005] eKLR
  • National Industrial Credit Bank Ltd v Majani Mingi Sisal Estate
    HCCC No. 1818 of 2020
  • National Industrial Credit Bank Ltd v S. K. Ndegwa Auctioneer
    Appeal No. 195 of 2004
  • Oscar Otieno Odongo t/a Odongo Investment Auctioneers v Sukari Industries Ltd
    Misc. Civil Appeal No. 293 of 2018
  • Selle & another v Motor Boat Co. Ltd
    [1968] CA 123
  • Peters v Sunday Post
    [1958] EA 424
  • Kennedy Shikuku t/a Exhikhoni Auctioneers v Nzoia Sugar Company Ltd
    [2022] KEHC 10361 (KLR)
On appeal from
Employment and Labour Relations Court (Deputy Registrar, Kisumu)
Kisumu ELRCC No. 187 of 2018 - Kenya Tertiary and School Workers Union (KETESWO) v The Board of Management Nyang'ori Boys School & Samson Itonde Tumbo t/a Dominion Yards Auctioneers
Jurisdiction invoked
Rule 55(3) & (4) of the Auctioneer Rules, 2017 and Part II of the 4th Schedule to the Rules (first appeal against a Taxing Officer's assessment)

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, "Dominion Yards Auctioneers v Board of Management Nyangori Boys High School (Miscellaneous Case E018 of 2025) [2025] KEELRC 1508 (KLR)", Case Analysis (2025). Appeal against the ruling of the Deputy Registrar in Kisumu ELRCC No. 187 of 2018 (Chamber Summons under Rule 55(3) & (4) of the Auctioneer Rules, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1508/eng@2025-05-21

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