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MagistratePartially AllowedBungoma CMCC/208/2022 (Auctioneer's Bill of Costs dated 10th February 2025)· [2025] KEMC 403 (KLR)

Areba t/a Rema Auctioneers v Wachaye & 2 others (Civil Miscellaneous Application E106 of 2025) [2025] KEMC 403 (KLR)

Magistrates' Court at Bungoma
25 March 2025
1,152 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling by Resident Magistrate T.O. Omono at Bungoma determines an Auctioneer's ex-parte Notice of Motion dated 10th February 2025, in which Zephania Amenya Barasa, instructed by the decree holder in Bungoma CMCC/208/2022, sought costs for execution services against the Respondents. The 2nd Respondent opposed the claim, arguing that execution had been stayed on 10th September 2024 and by a ruling of 9th January 2025 in Bungoma HCCA E110 of 2024, and that he never signed sale form 2. The court framed two issues: entitlement to costs and quantum. On entitlement, it held the stay orders merely stayed future execution and did not declare prior execution illegal; stays have no retroactive effect, so execution undertaken before 10th September 2024 was lawful and compensable. On the unsigned sale form, the court found the Auctioneers Rules permit completion of the form where the auctioneer notes that the person served declined to sign, which had been done. On quantum, the court taxed the Bill of Costs item by item: items drawn to scale were assessed as drawn; duplicated, unproven and inapplicable items were taxed off; and, following Julius Mwale t/a MwalMart Supermarket v Kennedy Shikuku, the commission on proclamation was computed on the decretal sum of Kshs. 603,715/= rather than the value of proclaimed goods (Kshs. 970,000/=). The Bill was assessed at Kshs. 54,494.19/=.

Key legal issues

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01

Whether execution prior to the stay orders was lawful

Holding

The Applicant is entitled to costs for execution services rendered before 10th September 2024.

Reasoning

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.

p. 2
02

Whether failure to sign sale form 2 invalidates execution

Holding

It does not; the Auctioneers Rules allow the auctioneer to note a refusal to sign, which was done.

Reasoning

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.

p. 3
03

Basis for assessing commission on proclamation

Holding

Commission computed on the decretal sum of Kshs. 603,715/=, yielding 5% = Kshs. 30,185.75/=

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Auctioneer/Applicant's Bill of Costs dated 10th February 2025 assessed at Kshs. 54,494.19/=

Authorities

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Legislation

  • Civil Procedure Actsections 3, 3A
  • Auctioneers Rulesrule 7; fourth schedule paragraphs 4 and 10

Cases cited (1)

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

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, "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.