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MagistratePartially AllowedBungoma CMCC No. 006 of 2020 (Auctioneer's Notice of Motion dated 13th January 2025)· [2025] KEMC 459 (KLR)

Areba t/a Rema Auctioneers v Bhole Pan House Enterprises Ltd & another (Civil Miscellaneous Application E010 of 2025) [2025] KEMC 459 (KLR)

Chief Magistrate's Court at Bungoma
4 March 2025
1,124 words in judgment
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The bottom line

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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

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Executive summary

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This ruling by Resident Magistrate T.O. Omono, delivered on 4th March 2025 at Bungoma, determines an Auctioneer's Notice of Motion dated 13th January 2025 seeking costs for execution services rendered for the Plaintiff/Decree Holder in Bungoma CMCC No. 006 of 2020, brought under sections 3 and 3A of the Civil Procedure Act and rule 7 of the Auctioneers Rules 1997. The Defendant/Respondent opposed the application solely through written submissions dated 24th February 2025, contending that pre-completed proclamation notices had been served in Nairobi on 9th October 2024 by one Victor Musonye, rendering the proclamation unprocedural and irregular. The court framed two issues: entitlement to the costs sought and quantum. On entitlement, the court held that submissions are neither pleadings nor evidence and cannot be used to impeach a Supporting Affidavit, relying on Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi and Mwavula v Waweru. The Respondent, having filed no Replying Affidavit and sought no cross-examination of the deponent, failed to displace the presumption of truth of the affidavit's averments. The court therefore found the Auctioneer entitled to fees. On quantum, the court applied the fourth schedule to the Auctioneers Rules: item 4 was assessed at Kshs. 40,200/= (2% of the Kshs. 2,010,000/= value of proclaimed items); item 5 was taxed off for want of transportation of proclaimed goods; item 12 was taxed off for want of a receipt; item 14 was assessed at Kshs. 1,400/= guided by Aoro v Were; item 15 was reduced to Kshs. 5,000/= for want of a receipt; and item 17 was taxed at Kshs. 21,106.40/=. The court allowed the application in part, assessing the Bill of Costs at Kshs. 153,021.40/=.

Key legal issues

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01

Whether submissions can be used to impeach the contents of a Supporting Affidavit

Holding

No - submissions are neither pleadings nor evidence; a party must file a Replying Affidavit or apply for cross-examination of the deponent.

Reasoning

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.

p. 3
02

Whether the Auctioneer is entitled to costs for execution services rendered

Holding

Yes - the Auctioneer is entitled to fees for services rendered as set out in the Supporting Affidavit, since the Respondent failed to impeach it.

Reasoning

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.

p. 4
03

Assessment of individual items in the Bill of Costs

Holding

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/=.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Auctioneer/Applicant's Bill of Costs dated 13th January 2025 is assessed at Kshs. 153,021.40/=.

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A
  • Auctioneers Rules 1997Rule 7; Fourth Schedule, paragraphs 4 and 10

Cases cited (3)

  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Mwavula v Waweru t/a Antique Auctioneers Agencies & another
    (Civil Appeal E374 of 2023) [2024] KEHC 5988 (KLR)
  • Aoro v Were
    (Miscellaneous Reference Application E019 of 2022) [2022] KEHC 14628 (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 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.