Mugandi t/a Clear Real Auctioneers v Jiangxi Water and Hydropower Construction Company Limited (Environment & Land Miscellaneous Case E005 of 2023) [2024] KEELC 6200 (KLR)

4. The respondent avers that it is not true that the applicant was not aware of the proclamation form and that he is not aware of any other alleged proclamation with varying figures or values, such as the ones attached to the application by the applicant otherwise, they did not emanate from his ofice. 5. Similarly the respondent avers that if there were any variations or discrepancies, as alleged or at all the applicant should have raised the issues during the taxation process; otherwise, the application was an afterthought. The respondent avers that the taxing master acted on the correct principles of law and was guided by the court record in arriving at Kshs.3505,280/=; hence, the award should not be disturbed. 6. The applicable law in taxation of auctioneers bill in the Auctioneers Act and the Rules made thereunder. Any party aggrieved by the taxation under Rule 55 (4) of the Rules has to file an appeal to a judge in chambers. What is before me is, however, not an appeal but an application for a stay of execution and or setting aside of the taxation award. 7. The applicant did not file an appeal in line with the Auctioneers Act and rules made thereunder, within seven days of the award. Without such an appeal this court lacks jurisdiction to entertain the application in the nature it has been brought. 8. Additionally, there is no certificate of taxation or decree capable of execution for this court to stay. In Ezekiel Kiminza t/a Auto Land Auctioneers v Mistry Valji Naran Mulji (2017) eKLR, the court was clear on the procedure to follow in challenging a taxation award. There is no memorandum of appeal attached to the application for this court to gauge the basis of challenging the exercise of discretion by the taxing master. 9. The applicant has not followed the procedure set for this court to interfere with the discretion of the taxing master as held in Oscar Otieno Odongo t/a Obongo Investment Auctioneers v Sukari Industries Ltd (2019) eKLR. It is only after following such a procedure a court establishes if there was an error of principle or if the fee awarded was manifestly high. 10. The manner in which auctioneer charges are assessed was settled in NIC Bank Ltd v S.K Ndegwa Auctioneer (2005) eKLR. Values as per paragraph 4 of Part II of the Fourth Schedule of the Act are defined to be as per the value of the goods attached and not the decretal sum. 11. An auctioneer is to be remunerated for the actual work done and not on the basis of what he could have done had the attached goods been equivalent in value to the decretal sum. 12. The bill of costs was attached to the application dated 14.9.2023 as annexures marked SM “3,” “4” & “5”. 13. The applicant filed a notice of appointment dated 14.11.2023 upon service with the notice of motion. It opted to oppose the taxation by grounds of opposition dated 19.12.2023 and through written submissions. Matters of facts and evidence as per the supporting afidavit sworn by Samuel Mugendi on 14.9.2023 and the attachments to that were not disputed by way of a rival afidavit. 14. The ruling dated 14.6.2024 was guided by the caselaw of NIC Bank Ltd v S.K Ndegwa (supra). There is no error of principle demonstrated before this court. The upshot is that I find the application both incompetent and lacking merits. It is dismissed with costs. DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 18th DAY OF SEPTEMBER, 2024. In presence of C.A Kananu https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6200/eng@2024-09-18 2

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Otieno for Ndaka for the applicant Kiogora Nganga for Kariuki for respondent HON. C K NZILI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6200/eng@2024-09-18 3

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