Areba t/a Rema Auctioneers v Bhole Pan House Enterprises Ltd & another (Civil Miscellaneous Application E010 of 2025) [2025] KEMC 459 (KLR)
The bottom line
#A Bungoma court awarded an auctioneer Kshs. 153,021 in costs, ruling that a party who disputes an affidavit must file evidence, not just written arguments.
What this practically means
#Executive summary
#Key legal issues
#Whether submissions can be used to impeach the contents of a Supporting Affidavit
No - submissions are neither pleadings nor evidence; a party must file a Replying Affidavit or apply for cross-examination of the deponent.
The court relied on the Court of Appeal decision in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another, holding that what appears in submissions cannot aid a party who failed to prove their claim by evidence. Where a Supporting Affidavit is disputed, the proper procedure is a Replying Affidavit or an application to summon the deponent for cross-examination. Absent either, the averments stand as true.
Whether the Auctioneer is entitled to costs for execution services rendered
Yes - the Auctioneer is entitled to fees for services rendered as set out in the Supporting Affidavit, since the Respondent failed to impeach it.
The Respondent relied solely on written submissions alleging improper service of pre-completed proclamation notices, without filing a Replying Affidavit or seeking cross-examination. Having failed to disprove the Supporting Affidavit's contents, the Respondent could not defeat the claim. The court upheld the presumption of truth of the affidavit's averments and allowed the fees.
Assessment of individual items in the Bill of Costs
Several items were taxed down or off: item 4 assessed at Kshs. 40,200/= (2% of proclaimed value per paragraph 4 of the fourth schedule); item 5 taxed off; item 12 taxed off for want of proof; item 14 assessed at Kshs. 1,400/=; item 15 assessed at Kshs. 5,000/=; item 17 taxed at Kshs. 21,106.40/=.
The court applied the fourth schedule to the Auctioneers Rules, assessing commission on proclamation by reference to the value of items proclaimed (Kshs. 2,010,000/=). Items requiring proof by receipt that lacked receipts were taxed off, while items evidenced on the record were taxed as drawn. Email service was assessed guided by Aburili J.'s holding in Aoro v Were.
Legal principles established
#- Submissions are neither pleadings nor evidence and cannot be used to lead evidence or impeach an affidavit.
- In the absence of evidence to the contrary, there is a presumption of truth of the averments in a Supporting Affidavit, and a party disputing them bears the onus of disproving them.
Court orders
#- 1.The Auctioneer/Applicant's Bill of Costs dated 13th January 2025 is assessed at Kshs. 153,021.40/=.
- 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 Bhole Pan House Enterprises Ltd & another (Civil Miscellaneous Application E010 of 2025) [2025] KEMC 459 (KLR)", Case Analysis (2025). Bungoma CMCC No. 006 of 2020 (Auctioneer's Notice of Motion dated 13th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/459/eng@2025-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.