Mombasa Car Impoeters Limited v Makini Auctioneers Agencies (Miscellaneous Reference Application 029 of 2025) [2025] KEHC 19619 (KLR) (5 December 2025) (Ruling) Neutral citation: [2025] KEHC 19619 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MOMBASA MISCELLANEOUS REFERENCE APPLICATION 029 OF 2025 F WANGARI, J DECEMBER 5, 2025 BETWEEN MOMBASA CAR IMPOETERS LIMITED ........................................... APPLICANT AND MAKINI AUCTIONEERS AGENCIES ............................................. RESPONDENT RULING 1. This ruling relates to a Preliminary Objection dated 10/06/2025 by the Respondent and the Chamber Summons dated 29/01/2025 which sought to have the decision of the Taxing Master in respect to Item No. 3, Item 9 and Item 10 on commission, Advocate’s fees on taxation and 16% VAT on commission charges respectively, be set aside and the same b taxed afresh before a different Taxing Master. The Applicant also prayed for costs. 2. The application was supported by the Supporting Affidavit sworn by the 2nd Applicant stating that the Taxing Master failed to take into account the provisions of the Schedule 4 of the Auctioneers (Practice) Rules, 2009 in awarding the disputed items. 3. The Respondent in the Preliminary Objection stated that the application offended the provisions of Rule 55 (3), (4) & (5) of the Auctioneers Rules which requires such a reference be filed within 7 days of the Taxing Master’s decision. The Respondent further stated that the Reference was filed out of time. It was prayed that the Chamber Summons be dismissed with costs. 4. Directions were taken that the application and the P.O be disposed of simultaneously by way of written submissions. Only the Applicants filed their submissions. Analysis 5. Considering that a Preliminary Objection was raised, I propose to deal with it first. The Respondent did not prosecute the Preliminary Objection as no submissions were filed in respect of the objection. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19619/eng@2025-12-05 1
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The Applicants filed further submissions dated 10/06/2025 stating that leave to file the reference out of time had already been granted by the court in Mombasa Misc. Civil Suit No. E367 of 2024 on 21/01/2025. 6. The Respondent having failed to prosecute the Preliminary Objection and having considered the Supplementary Submissions by the Respondent, I find that the P.O has got no merits and is hereby dismissed 7. Now turning to the merits of the application, it is clear that the Applicant was dissatisfied by the awards on the selected items by the Taxing Master pertaining Auctioneer’s Bill of Costs. In Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, the Court of Appeal held as follows: “ .... On reference to a Judge from the Taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the Taxing Officer erred in principle in assessing the costs…” 8. I have perused through the attached documents in support of the application. There has been attached the Auctioneer Bill of Costs, a Schedule of Documents in Support of the Auctioneer’s Bill of Costs both in Mombasa High Court Misc. App. No E382 of 2022. This court is not equipped with the said documents to make a determination on the disputed items in the Auctioneer’s Bill of Costs. I therefore direct that the file be place before a Taxing Master for re-taxation other than Hon. J.B. Kalo. 9. On the issue of costs, it is settled that the same follows the event. That is the import of section 27 of the Civil Procedure Act. The court reserves its discretion on whether to award costs to a party or not. Each party is to bear its own costs Determination 10. Following the foregone discourse, the upshot is that the following orders do hereby issue: a. The Preliminary Objection dated 10/06/2025 is devoid of merit and the same is hereby dismissed b. The Chamber Summons application dated 29/01/25 is allowed on the following terms; c. i. The Bill of Costs dated 04/09/2022 be placed before a different Taxing Master for retaxation. ii. The original file (Mombasa High Court Misc. Application No. E382 of 2022 be placed before the Taxing Master to give effect to order (i) above. Each party to bear its own costs. Orders accordingly. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 5TH DAY OF DECEMBER, 2025. HON. F. WANGARI JUDGE In the presence of; N/A by the Applicant Mr. Muriithi Advocate h/b for Mr. Masore Advocate for the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19619/eng@2025-12-05 2
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