The Monarch Insurance Limited v George Munyambu Kinyua T/A Makini Auctioneers Agencies

Kshs. 100,001 – 1,000,000 and 2% for over Kshs. 1,000,000. According to the Appellant, the correct attachment of fee for the sum of Kshs. 2,222,089 ought to have been 10% of Kshs. 100,000 = Kshs. 10,000, 5% of Kshs. 900,000 = Kshs. 45,000 and 2% of Kshs. 1,222,089 = Kshs. 24,441.78, amounting to Kshs. 79,441.78. 5. The Respondent filed Grounds of Opposition dated 22nd May 2025 stating that the Taxing Master relied on provisions of the Second Schedule Sales Form 2 under Rule 12 of the Auctioneer Rules, 1997 to allow the Auctioneer’s Bill of Costs at Kshs. 355,631 exclusive of 16% VAT, for proclamation of movable property. That however, the Appellant relies on item 4 of the Fourth Schedule of Part II of the Auctioneers Rules, anchored on Rule 15 of the Auctioneers Rules, 1997 that exclusively deals with immovable property. 6. The Appellant in their submissions relied on the High Court decision in James Kilonzo t/a Base Auctioneers v China Wu Yi Limited (Misc. App. No. 405 of 2019) where it was held that splitting sums across bands is an error and the correct practice is to apply a single percentage. That the Respondent is entitled to Kshs. 79,441.78 and the excess of Kshs. 236,871.22 should therefore be taxed off. 7. The parties were directed to file their respective submissions. Only the Applicant complied by filing its submissions (undated). Analysis 8. 9. This court has considered the Chamber Summons, Grounds of Opposition by the Respondent and Submissions by the Appellant. The issues for determination are a. whether the taxed Auctioneer’s Bill of Costs is excessive as drawn; and b. what orders on costs should issue. The court in First American Bank of Kenya vs Shah and Others [2002] 1 EA 64 at 69 held: “ First, I find that on the authorities, this court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an interference that it was based on an error of principle.” 10. The Appellant argued that fees of Kshs. 316,313 for attachment of Kshs. 2,222,089 was erroneous and did not conform to Part II of the Auctioneers Rules, 1997 which provided for a maximum of 10%, 5% and 2% on the respective bands. Further, that the Respondent erroneously split the decretal sum into bands when they ought to have placed it within the appropriate band based on the entire decretal sum. 11. The Second Schedule, Sale Form 2 on the schedule for movable property under the Auctioneers Rules, 1997 provides for fees for auctioneers on attachment/repossession/distraint of movable property under Rule 12 as Kshs. 2,000 to Kshs. 50,000 – 5%, Kshs. 50,000 to Kshs. 100,000 – 3% and over Kshs. 100,000 – 15%. 12. The Fourth Schedule, Part II, Item 4 provides for the rate of charging fees on attachment/repossession/ distraint and expenses of immovable property under Rule 15 as Kshs. 4,001 to Kshs. 100,000 – 10%, Kshs. 100,001 to Kshs. 1,000,000 – 5% and over Kshs. 1,000,000 – 2%. 13. This court has perused the impugned ruling which held: “ The item on insurance cover is taxed off as the same is not provided for under the Schedule 2 of the Auctioneers Rules. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4274/eng@2026-02-12 2

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In the final analysis the statement of costs is assessed at Kshs 355,631.00 exclusive of 16% VAT.” 14. The Respondent in their Grounds of Opposition raised the issue that the proclaimed property was movable, which position has not been disputed by the Appellant. Item 2 of the Bill of Costs is in respect to the fees on attachment. Under the Auctioneers Rules, 1997 the auctioneer charges for attachement/ repossession/ distraint and expenses are in accordance with Part II of the Fourth Schedule. 15. It is therefore the duty of the auctioneer to draw his Bill to conform with the Rules. I do concur with the Applicant that the Bill was erroneously drawn and taxed in regard to item 2. In the absence of the primary documents for purposes of determining if the other items were drawn to scale, the file be placed before a different Taxing Master for re-taxation. 16. On costs, due to the relationship between the parties herein, this court exercises its discretion and orders that each party to bear its own costs Determination 17. In the upshot, the court makes the following orders; a. b. The Chamber Summons application dated 21st March 2025 is merited and is allowed on the following terms; i. The ruling of the Taxing Master delivered on 14th March 2025 is hereby set aside ii. The Auctioneers Bill of Costs be placed before a different Taxing Master for retaxation. Each party to bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 12TH DAY OF FEBRUARY, 2026 ……………………….. HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of: N/A by the Applicant Mr. Masore Advocate for the Respondent Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4274/eng@2026-02-12 3

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