Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
MagistratePartially AllowedTaxation of Auctioneer's Bill of Costs dated 13th March 2025 in Bungoma CMCC No. 265 of 2021· [2025] KEMC 402 (KLR)

Areba t/a Rema Auctioneers & another v Sabuni & another (Civil Miscellaneous Application E166 of 2025) [2025] KEMC 402 (KLR)

Chief Magistrate's Court at Bungoma (Resident Magistrate's Court)
1 July 2025
621 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

A Bungoma court cut an auctioneer's bill sharply, confirming commissions are calculated on the decretal sum and every expense claim needs receipts.

What this practically means

#

Executive summary

#
This is a taxation ruling by Resident Magistrate T.O. Omono at Bungoma, delivered on 1st July 2025, concerning an ex-parte Notice of Motion dated 13th January 2025 by Zephania Amenya Barasa, an auctioneer, seeking costs for execution duties rendered for the Plaintiff/Decree Holder against the Defendant/Respondent in Bungoma CMCC No. 265 of 2021. The application, brought under sections 3 and 3A of the Civil Procedure Act and rule 7 of the Auctioneers Rules 1997, was canvassed by written submissions, with the Defendant opposing. The court framed a single issue: the costs due to the auctioneer. It taxed items drawn to scale (items 1, 3 and 13) as drawn, taxed off item 2 as a repetition of item 1 since instruction fees are payable only once, and applied the Julius Mwale decision to base commission under item 4 on the decretal sum of Kshs. 142,150/= (5% = Kshs. 7,107.50/=) rather than the proclaimed property value of about Kshs. 800,000/=. Item 5 was taxed off as execution had been stayed. Travel costs under item 7 were taxed down to Kshs. 3,000/= because the vehicle used was owned by Auto Mega Limited; unsupported disbursements (item 12) were taxed off for want of receipts, while service (item 14) was awarded at Kshs. 5,000/= and advocate instruction costs (item 15) at Kshs. 10,000/=. The Bill was finally taxed at Kshs. 39,564.70/= with 16% VAT (item 17) of Kshs. 5,457.20/=.

Key legal issues

#
01

Basis of auctioneer's commission where proclaimed property exceeds the decretal sum

Holding

Commission taxed on the decretal sum of Kshs. 142,150/=, yielding 5% (Kshs. 7,107.50/=) under item 4, following Julius Mwale v Kennedy Shikuku.

Reasoning

The proclaimed property was valued at approximately Kshs. 800,000/= while the decretal sum was Kshs. 142,150/=. Relying on the Mwale decision, the court held that commission must be pegged to the decretal sum, not the higher value of the proclaimed property, and taxed item 4 accordingly at 5% of the decretal sum.

p. 3
02

Proof of disbursements and expenses claimed by an auctioneer

Holding

Claims for disbursements and travel must be proved by receipts or other evidence; unsupported items are taxed off or taxed down in the court's discretion.

Reasoning

Item 12, a disbursement, had no receipt and was taxed off. The travel claim under item 7 was unsupported because the logbook showed the vehicle was owned by Auto Mega Limited, not the auctioneer; the court nonetheless exercised discretion to award Kshs. 3,000/= since the auctioneer admittedly visited the judgment debtors' homes. Item 15, though unreceipted, was reasonably awarded at Kshs. 10,000/= as the instruction of an advocate was common ground.

p. 4
03

Items rendered nugatory by stay of execution

Holding

Item 5 (inventory on proclamation) was taxed off because execution was stayed and the service never took place.

Reasoning

The court found that the execution of the decree in the primary suit had been stayed by the court, so the taking of inventory on proclamation did not occur. An auctioneer cannot recover costs for execution steps that were never actually carried out, and the item was therefore taxed off entirely.

p. 3

Legal principles established

#
  • Where the value of proclaimed property exceeds the decretal sum, the auctioneer's commission should be based on the decretal sum.
  • An auctioneer's instruction fees are payable only once.

Court orders

#
  1. 1.The Auctioneer/Applicant's Bill of Costs dated 13th March 2025 is taxed at Kshs. 39,564.70/=.

Authorities

#

Legislation

  • Civil Procedure ActSections 3, 3A
  • Auctioneers RulesRule 7

Cases cited (1)

  • Julius Mwale t/a Mwal-Mart Supermarket v Kennedy Shikuku t/a Eshikhoni Auctioneers & another
    (Miscellaneous Civil Case E006 of 2023) [2023] KEHC 23863 (KLR)
Jurisdiction invoked
Section 3, 3A of the Civil Procedure Act and rule 7 of the Auctioneers Rules 1997

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Areba t/a Rema Auctioneers & another v Sabuni & another (Civil Miscellaneous Application E166 of 2025) [2025] KEMC 402 (KLR)", Case Analysis (2025). Taxation of Auctioneer's Bill of Costs dated 13th March 2025 in Bungoma CMCC No. 265 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/402/eng@2025-07-01

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