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Case Brief · caselaw.co.ke
MagistratePartially AllowedApplication in execution arising from Bungoma CMCC/E054/2024· [2025] KEMC 410 (KLR)

Auctioneer/Applicant v Defendant/Respondent (Notice of Motion dated 12th June 2025)

Magistrates' Court (Bungoma)
18 September 2025
1,605 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 ruled a Kenyan debtor must pay auctioneer fees even when debt collection was stopped partway, though some charges were cut.

What this practically means

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Executive summary

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This is an unopposed ruling by the Senior Resident Magistrate's Court at Bungoma on a Notice of Motion dated 12th June 2025 by an auctioneer seeking payment of auctioneers' charges and expenses arising from execution of a warrant of attachment of movable property issued on 15th April 2025 in Bungoma CMCC/E054/2024. The Respondent did not file a response or submissions despite directions of 2nd September 2025, but the court held it was still duty bound to assess merit. The court framed a single issue: whether the Applicant was entitled to auctioneer fees and in what amount. Relying on Rule 7 of the Auctioneers Rules and Nduati v Kioko, the court held that having served a proclamation notice on 7th May 2025, the auctioneer was entitled to fees even though execution was stayed before conclusion. On quantum, the court applied Oscar Otieno Odongo v Sukari Industries and Odongo v Credit Bank, holding that proclamation fees must be pegged on the relevant single percentage in Part II of the Fourth Schedule rather than calculated through multiple bands, and that where proclaimed property value (Kshs. 3,357,500/=) exceeds the decretal sum (Kshs. 2,395,713/=), fees must be assessed on the decretal sum. Several items were taxed off for duplication, want of particulars, or because court collection fees are borne by the decree holder. Submissions were held not to be evidence. The court assessed total fees at Kshs. 69,882.87/=, with interest at court rates from the date of the ruling until payment in full, and awarded the Applicant costs of the application assessed at Kshs. 10,000/=.

Key legal issues

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01

Entitlement to auctioneer fees where execution was stayed before completion

Holding

The Applicant, having served a proclamation notice on the Respondent, is entitled to auctioneer fees notwithstanding that execution was stayed before conclusion

Reasoning

Rule 7 of the Auctioneers Rules places liability for auctioneer charges on the debtor unless the debtor cannot be found, has no executable goods, or proceeds are insufficient. The court applied Nduati v Kioko to hold that even where execution is stayed before conclusion of the execution process, the auctioneer may recover fees from the Respondent. Since the proclamation was served on 7th May 2025, entitlement was established.

p. 3
02

Quantum: basis of assessment where proclaimed property value exceeds the decretal sum

Holding

Fees on proclamation must be assessed on a single percentage from Part II of the Fourth Schedule and, where proclaimed value exceeds the decretal sum, on the decretal sum

Reasoning

The court adopted Mrima J's holding in Oscar Otieno Odongo v Sukari Industries rejecting band-by-band calculation, and Magare J's ruling in Odongo v Credit Bank that an auctioneer who finds goods in abundance must limit fees to the maximum of the decretal sum, to avoid auctioneers carting away unnecessary goods to inflate bills. Item 4 was thus assessed at 5% of Kshs. 586,621/=, yielding Kshs. 29,331.05/=.

p. 4
03

Evidentiary value of submissions in substantiating disbursements

Holding

Submissions are not evidence; items lacking particulars or proof (such as vehicle ownership for travel) are taxed off or assessed at reduced reasonable sums

Reasoning

On item 11, the Applicant relied on submissions referencing a motor vehicle without proof of ownership; the court held submissions are not evidence and proof of ownership should be attached to the Bill of Costs. Nonetheless, since travel occurred, Kshs. 5,000/= was allowed. Items 12 and 14 were taxed off for want of particulars, and item 15 because court collection fees are borne by the decree holder, not recoverable from the judgment debtor.

p. 4

Legal principles established

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  • An unopposed application must still be determined on its merits by the court
  • Under Rule 7 of the Auctioneers Rules, a debtor must pay auctioneer's charges unless the debtor cannot be found, has no executable goods, or sale proceeds are insufficient; even where execution is stayed before conclusion, the auctioneer may recover fees
  • Auctioneer fees on proclamation must be pegged on the relevant single percentage in Part II of the Fourth Schedule, not calculated through multiple bands
  • Where the value of proclaimed property exceeds the decretal sum, the auctioneer's commission should be assessed on the debt or decretal sum

Court orders

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  1. 1.The Respondent is ordered to pay the Applicant fees assessed at Kshs. 69,882.87/=
  2. 2.The assessed fees will earn interest at court rates from the date of the ruling till payment in full
  3. 3.The Applicant will have the costs of the Application assessed at Kshs. 10,000/=
Jurisdiction invoked
Sections 3, 3A and 63(e) of the Civil Procedure Act and Rule 7 of the Auctioneer Rules (1999)

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, "Auctioneer/Applicant v Defendant/Respondent (Notice of Motion dated 12th June 2025)", Case Analysis (2025). Application in execution arising from Bungoma CMCC/E054/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/410/eng@2025-09-18

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