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MagistratePartially AllowedCivil Case No E184 of 2024· [2026] KEMC 648 (KLR)

Ratika v Mumias Sugar (2021) Ltd (Civil Case E184 of 2024) [2026] KEMC 648 (KLR)

Magistrates' Court
3 March 2026
1,417 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a judgment debtor must pay auctioneer's fees even when the auction never happened, but capped the fees at a fair, single-rate calculation.

What this practically means

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Executive summary

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This ruling by the Senior Resident Magistrate's Court at Bungoma determines an Auctioneer's Bill of Costs dated 19th December 2025, brought under Part II of the Fourth Schedule of the Auctioneers Rules 1997. It was common ground that the Auctioneer served a proclamation notice on the Defendant/Judgment Debtor in execution of the decree, but the proclaimed goods were never auctioned because the Judgment Debtor settled the decretal sum before auction. Applying Rule 7 of the Rules, the court held that since the debtor was traceable, had executable goods, and the decretal sum paid did not include auctioneer's fees, the Judgment Debtor must settle the fees. On assessment, the court rejected the Auctioneer's banded calculation of commission, following Mrima J in Odongo v Sukari Industries, and pegged commission at 2% of the decretal sum of Kshs. 2,395,711.30, yielding Kshs. 47,914.26. Items 1(c), 11, 14 and 15 were struck off for repetition or want of particulars and proof; travelling expenses particularised only in submissions could not be proved, the court applying Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi on the irrelevance of submissions as evidence, though it fixed item 11 at Kshs. 5,000/= in its discretion. VAT at 16% was allowed. The Bill of Costs was assessed at Kshs. 77,620.54/= and each party was ordered to bear its own costs of the Bill.

Key legal issues

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01

Liability for auctioneer's fees where no auction takes place

Holding

The Judgment Debtor must settle the fees as goods existed for execution and the decretal sum was paid

Reasoning

Rule 7 of the Auctioneers Rules shifts charges to the creditor only where the debtor cannot be found, has no executable goods, or proceeds are insufficient. Nothing on record suggested those circumstances applied, nor that the decretal sum paid included auctioneer's fees.

p. 2
02

Method of calculating commission where proclaimed goods exceed the decretal sum

Holding

Commission is calculated on the decretal sum using the single applicable percentage (2%)

Reasoning

Following Mrima J in Odongo v Sukari Industries, fees must be pegged on the relevant single percentage rather than banded, to avoid unjust enrichment of auctioneers and keep litigation costs low in line with Article 48. Since proclaimed goods (Kshs. 3,357,500) exceeded the decretal sum (Kshs. 2,395,711.30), commission was computed on the decretal sum.

p. 2
03

Whether written submissions can introduce evidence

Holding

No - submissions do not constitute evidence

Reasoning

Relying on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the court held that particulars of travelling expenses introduced only through submissions could not stand as proof, but nevertheless assessed item 11 at Kshs. 5,000/= in the exercise of its discretion since service was proved.

p. 3
04

VAT on auctioneer's fees

Holding

VAT at 16% is payable on the assessed fees as auctioneer income attracts VAT

Reasoning

The court took judicial notice that an auctioneer's firm is a VAT entity and that the fees claimed constitute income attracting VAT, following Kenya Tea Packers Company Limited v Hezron Getuma.

p. 3

Legal principles established

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  • A debtor shall pay the auctioneer's charges unless he cannot be found, has no goods for execution, or sale proceeds are insufficient
  • Auctioneer fees on proclamation are calculated on the relevant single percentage, not through bands
  • Submissions cannot take the place of evidence

Court orders

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  1. 1.The Auctioneer's Bill of Costs dated 19th December 2025 is assessed at Kshs. 77,620.54/=
  2. 2.Each party shall bear their costs of the instant Bill of Costs

Authorities

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Legislation

  • Auctioneers Rules 1997Part II of the Fourth Schedule; Rule 7
  • Constitution of KenyaArticle 48

Cases cited (6)

  • Youth Enterprise Development Fund Board v Macharia t/a Platinum Auctioneers
    Miscellaneous Civil Application E118 of 2021 [2022] KEHC 9913 (KLR)
  • Julius Mwale t/a Mwal-Mart Supermarket v Kennedy Shikuku t/a Eshikhoni Auctioneers & another
    Miscellaneous Civil Case E006 of 2023 [2023] KEHC 23863 (KLR)
  • Oscar Otieno Odongo t/a Odongo Investment Auctioneers v Credit Bank Limited
    Civil Appeal E052 of 2024 [2025] KEHC 3526 (KLR)
  • Oscar Otieno Odongo t/a Odongo Investment Auctioneers v Sukari Industries Limited
    [2019] KEHC 9116 (KLR)
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Kenya Tea Packers Company Limited v Hezron Getuma t/a Hegeons Auctioneers
    [2021] KEHC 7796 (KLR)
Jurisdiction invoked
Part II of the Fourth Schedule 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, "Ratika v Mumias Sugar (2021) Ltd (Civil Case E184 of 2024) [2026] KEMC 648 (KLR)", Case Analysis (2026). Civil Case No E184 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/648/eng@2026-03-03

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