Kenya Power & Lighting Company Ltd v David Obare Omwoyo t/a Omwoyo Auctioneers
The bottom line
#If a court judgment is set aside due to procedural errors, you are usually not liable for the auctioneer's costs.
What this practically means
#Executive summary
#Key legal issues
#Liability for auctioneer's charges where the underlying judgment is set aside
Rule 7 of the Auctioneers Rules, 1997 places the burden on the judgment debtor, but the court may depart from it where it would be unjust; here the judgment was annulled on setting aside for irregular service and no blame was placed on the appellant.
The court accepted that Rule 7 makes no provision for exceptions, but held that rigid application would be unjust where the judgment giving rise to the charges was set aside for irregular service. The judgment was annulled once the appellant met the conditions imposed, and the outcome of the retrial was uncertain, so liability for the charges should await the final judgment.
Correct assessment of the auctioneer's bill of costs
The charges were not assessed as provided in Part II of the Fourth Schedule, item 7, which limits the auctioneer to half fees plus expenses where the sale is stayed or postponed.
The court found that the appellant's properties were proclaimed and advertised but the sale did not proceed because the judgment was set aside. Under item 7 of Part II of the Fourth Schedule, the auctioneer would then be entitled only to half fees plus expenses. The ruling did not show that this mode of assessment was applied, undermining the taxed figure of Kshs. 80,000.
Legal principles established
#- Where a judgment giving rise to auctioneer's charges is set aside for irregular service, it would be unjust to order the defendant to bear the auctioneer's costs where no blame attaches to it for the irregular service.
- Where requisite notices are served and the sale is stayed or postponed, the auctioneer is entitled only to half of the fees to which he would have been entitled after the sale, plus expenses.
Court orders
#- 1.The ruling of the Hon. Magistrate dated 10th February 2016 be and is hereby set aside and substituted with an order that the auctioneer's charges in this appeal shall abide the judgement of the trial court in the on-going case
- 2.Should the case against the appellant succeed then the appellant shall bear the charges but should the case be dismissed, those charges shall be borne by the defendant in that case
- 3.The costs of this appeal shall also abide the judgement in the lower court
- On appeal from
- Keroka Principal Magistrate's Court
- Misc. Appl. No. 1 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over the ruling and decree of the Keroka Principal Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company Ltd v David Obare Omwoyo t/a Omwoyo Auctioneers", Case Analysis (2019). Civil Appeal No. 4 of 2016. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.