Richard Wainaina T/A Seventy Seven Auctioneers v Crown Bus Services Ltd

The Appellant’s Submissions 3. Counsel for the Appellant submitted that the Appellant’s bone of contention is embodied in the Ruling dated, signed and delivered in 28th January 2022 by Honorable B.K. Kiptoo (SRM). Counsel highlighted that the learned taxing master held in part that: “ On item (c) I do find that the applicant’s work ended at the proclamation stage. The Applicant did not tender any evidence to confirm that the Respondent’s property was ever attached. A letter to Court confirming attachment of property for sale would have suficed in that respect. None is on record. I sustain the position that part II, paragraph 4 of the Auctioneer’s Rule and on the basis of which item (c) is sought (sic) is only applicable where there is actual seizure of the proclaimed property. I therefore find and hold that the proclaimed property was never seized from the Respondent to justify the award of costs of attachment as sought. Item (c) is therefore taxed off.” 4. Counsel urged the Court to make a finding that the above holding is at variance with the decision of the Court of Appeal as laid down in the case of National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer [2005] eKLR and submitted that by dint of the holding in the aforementioned case, it is evident that the learned taxing master fell into error by holding that a proclamation is not an attachment and thus erred in taxing off fees for attachment claimed by the Appellant. Counsel submitted that the said decision is binding both to this Court and to the Learned Taxing Master. 5. Counsel implored the Court to be guided by the holding in the said decision to find and hold that the Learned Magistrate fell into error and to set aside his decision to the extent that he found that the proclamation was not an attachment. Counsel further urged the Court to subsequently find that the proclamation is indeed an attachment and to assess the fees on attachment based on the value of the proclaimed property. Counsel submitted that on 9th April 2021, the fees on attachment was earned by the Auctioneer upon the proclamation of the Respondent’s property. Counsel added that according to the proclamation, the value of the proclaimed property was Kshs. 3,000,00 and fees chargeable was as follows: 6. i. Kshs. 4,001 to Kshs. 100,000 the fees chargeable being 10 % amounts to Kshs. 10,000 ii. Kshs. 100,001 to Kshs. 1,000,000 the fees chargeable being 5% amounts to Kshs. 50,000 iii. On the balance of Kshs. 1,900,000 the fees chargeable being 2 % amounts to Kshs. 38,000/=. Counsel thus urged the Court to assess this item at Kshs. 98,000/=. Determination 7. I have duly considered the appeal before me. The following issue arises for determination: a. 8. Whether the taxing master assessed the Auctioneer’s Bill of Costs to scale. The auctioneer’s fees on attachment is as set out in item (3) on the Auctioneer’s Bill of Costs dated 27th July 2021. The Appellant though not denying that by the time the parties to the suit entered into a consent, he had simply proclaimed the good and had not yet attached them by transporting them from the location at which they were attached. However, he has faulted the Taxing Master for failing to award fees on attachment as already herein explained. He relied on the decision of the Court of Appeal https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7786/eng@2026-06-03 2

page 2 of 4

in National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer [2005] eKLR which he cited in extenso as hereunder; “ …The purpose of the attachment is the execution of the decree. The essence of the attachment is to remove the goods from the possession of the judgment-debtor and place them in the custody of the law so that they can be sold to satisfy the judgment debt if the judgment-debtor does not pay the debt. To place the goods in the custody of the law it is not necessary, as Mr. Gatonye correctly submitted, that the goods must be carried away from the premises of the judgment-debtor. In the commentary to Order 21 Rule 43 of the Indian rule which is in pari materia to Order 21 Rule 38, the authors of Mulla, The Code of Civil Procedure 16th Edition state in part at page 2667: “where a warrant of attachment is executed by afixing it to the out door of the warehouse in which goods belonging to the judgment debtor are stored, it amounts to “actual seizure” within the meaning of the present rule”. It is clear from Rule 12 as read with Rule 14 of the Auctioneers Rules and the contents of the prescribed form, that is, Sale Form 2 that the proclamation of the movable goods is legally and effectively an attachment. From the moment the goods are proclaimed, the judgment-debtor is deprived of the legal possession and physical control of the goods and instead the goods are placed in the custody of the law and the court through the auctioneer. The judgment-debtor can only redeem them by the payment of the debt. If the judgmentdebtor fails to pay the auctioneer moves to the second stage of conducting the sale of the attached goods. We are satisfied that the learned Judge correctly construed the word “proclamation” in the context in which it is used in the Auctioneers Rules and reached the correct decision that the auctioneer was entitled to fees for attachment prescribed in paragraph 4 of Part II of the Fourth Schedule. …We think that it is reasonable that the auctioneer’s charges for attachment should be based on the value of the goods attached and not on the decretal sum. It is to be remembered that the auctioneer is to be remunerated for the actual work done and not on the basis of what he could have done had be attached goods equivalent in value to the decretal sum.” 9. In noting that the Appeal is not opposed and there are no rival submissions by the Respondent contradicting, contrasting and or distinguishing the herein cited decision of the Court of Appeal, it is my finding that the said decision is binding upon this court by dint of the doctrine of precedent and in this regard, the court finds that the proclamation of the goods as was done by the Appellant herein amounts to an actual attachment of the goods as envisaged under paragraph 4 of Part II of the 4th Schedule of the Auctioneers Rules 1997 and to this extent the Appeal now herby allowed 10. However, the court herein notes that the Court of Appeal decision in the said decision was on the considered opinion that it would be unjust to base the auctioneer’s fees on attachment on the decretal amount because in some cases, the value of the attached goods may be many times less than the decretal amount shown in the warrant of attachment and sale. The court therefore held that the auctioneers commission on proclamation should be based on the value of the proclaimed goods and thus referred the matter back to the Taxing Master to tax the fees as such. 11. In the instant case, the court notes that the Auctioneers Bill of Cost at the contested item number 3 which is the subject matter of this Appeal simply stated thus; “Fees on attachment considering the value of the proclaimed/attached property was Kshs. 3,000,000/.” The court however notes that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7786/eng@2026-06-03 3

page 3 of 4

the Proclamation Notice indicating what goods were attached and what value was attached to each property was not annexed to the Bill of Costs presented before the Taxing Master to justify the stated value of Ks. 3, 000, 000/12. For this reason, this matter is therefore referred back to the Taxing Master to tax the Bill afresh based on the value of the goods proclaimed as per the relevant Proclamation Notice which the court now hereby directs is to be availed to the court by the Appellant. The Chief magistrate is to allocate the Matter to a Deputy Registrar in the station for purposes of the taxation for reasons that this court is aware that the Hon B. Kiptoo has since been transferred from Eldoret Law Courts. 13. Orders accordingly READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 3RD JUNE 2026 E. OMINDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7786/eng@2026-06-03 4

page 4 of 4