Areba t/a Rema Auctioneers v Wachaye & 2 others (Civil Miscellaneous Application E106 of 2025) [2025] KEMC 403 (KLR)
The bottom line
#A Bungoma court allowed most of an auctioneer's fee claim, confirming that stay orders do not cancel valid execution already carried out.
What this practically means
#Executive summary
#Key legal issues
#Whether execution prior to the stay orders was lawful
The Applicant is entitled to costs for execution services rendered before 10th September 2024.
The stay orders of 10th September 2024 and 9th January 2025 merely stayed execution in the primary suit; they did not declare the prior execution illegal. Stay orders operate prospectively and have no retroactive effect, so execution carried out before the stay was lawful and compensable.
Whether failure to sign sale form 2 invalidates execution
It does not; the Auctioneers Rules allow the auctioneer to note a refusal to sign, which was done.
The 2nd Respondent argued he did not sign sale form 2 so execution against him was improper. The court found the Rules permit completion of the form where the auctioneer records that the person served declined to sign. The form in question was appropriately filled capturing the words 'declined to sign', so the Applicant complied.
Basis for assessing commission on proclamation
Commission computed on the decretal sum of Kshs. 603,715/=, yielding 5% = Kshs. 30,185.75/=
Following Julius Mwale t/a MwalMart Supermarket v Kennedy Shikuku, the court held that where proclaimed property far exceeds the decretal amount, computing commission on the value of attached goods would unjustly enrich the auctioneer. The proclaimed items were valued at Kshs. 970,000/= against a decree of Kshs. 603,715/=, so the 5% commission under paragraph 4 of the fourth schedule was assessed on the decretal sum.
Legal principles established
#- Stay of execution orders are prospective only and do not retroactively invalidate execution already undertaken.
- Where a judgment debtor declines to sign sale form 2, the form is complete if the auctioneer notes that the person served declined to sign.
- Where the value of proclaimed property exceeds the decretal sum, the auctioneer's commission is computed on the decretal sum.
Court orders
#- 1.The Auctioneer/Applicant's Bill of Costs dated 10th February 2025 assessed at Kshs. 54,494.19/=
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act; 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 v Wachaye & 2 others (Civil Miscellaneous Application E106 of 2025) [2025] KEMC 403 (KLR)", Case Analysis (2025). Bungoma CMCC/208/2022 (Auctioneer's Bill of Costs dated 10th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/403/eng@2025-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.