Daniel Kariru v Phillip Kamuya T/A Crater View Auctioneer

Ruling in Civil Misc. No E317 of 2025 Daniel Kariru Vs Philip Kamuya Ta Crater View Auctioneer was delivered on 7th November 2025 in Nakuru SCC Civil Misc Application No. E017 of 2025 whereby the Respondent herein was awarded net award of Kshs. 181,573. 3. It is averred that the Taxing Officer failed to tax the Bill of Costs on merit in allowing some items. According to the Applicant, the amount was too excessive and not justifiable as to be indicative of an error in principle and warrants setting aside. 4. In response, the Respondent filed Grounds of Opposition: a) That the Applicant’s Application is defective, unknown to law, vexatious, frivolous and scandalous and that it is an abuse of the Court process and a delay tactic. b) That the taxing officer officer’s decision is sound both law and in fact. c) That the Respondent’s Bill of Cost taxed on 7 th November, 2025 is taxed in accordance with the scale provided for under Rule 55 (1) Part ii of the fourth Schedule of the Auctioneer Rules and, d) That the Applicant’s application lacks merit. Applicant’s Submissions 5. The Applicant submits that subject to Paragraph 11 of the Advocate Remuneration Order and the finding in David Maingi vs Juma Wadhier & Daniel Omondi Juma (suing as Legal Representative on Behalf of the Estate of Angeline Aoko Juma) [2022] KEHC 16239 (KLR) the High Court can entertain a reference on assessment of Bill of Costs. Page 2 of 10

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Ruling in Civil Misc. No E317 of 2025 Daniel Kariru Vs Philip Kamuya Ta Crater View Auctioneer 6. It is also submitted that the Reference has been brought without delay and within the prescribed timelines. 7. On whether the taxation by the Taxing Master should be set aside, it is argued that the Respondent did not file any receipts or Supporting documents in his Bill of Costs as provided for under Order 21 Rule 9A of the Civil Procedure (Amendment) Rules. The opposed items are: a) Item 3 (Fees on Proclamation and taking inventory) that although the law provides for this, the Applicant proposed Kshs, 3000 as reasonable instead of the Kshs, 6000 b) Item 4 & 8 (Transport and Mileage). The same should be taxed down to Kshs. 10,000 as the Respondent has its registered office within Nakuru and from the Court’s jurisdiction to where service was affected by public means is less that Kshs. 200. Further that the Respondent has not provided actual proof in form of receipts of the actual expenses incurred amounting to Kshs. 62,010 or that he travelled from Nairobi to Nakuru to attach the Motor vehicle as alleged. c) Item 6 (Fees on investigation and pointing out) should be taxed off since Part II Schedule Four of the Auctioneers Act does not provide for fee payable on investigations and pointing out and relied on Milimani Miscellaneous App No. E095 of 2023 Peter Mwangi Gathogo T/A Daystar Auctioneers versus Directline Assurance Co. LTD. Page 3 of 10

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Ruling in Civil Misc. No E317 of 2025 Daniel Kariru Vs Philip Kamuya Ta Crater View Auctioneer d) Item 7 (out of Pocket expenses and other disbursements) no receipts have availed to confirm these expenses and the same is not provided for in the Remuneration Order e) Item 9 (Fees on Security) Schedule four of the Auctioneer’s Act does not provide for fees payable during attachment. Further there is no evidence and or Court order indicating that the Respondent were granted security. 8. The Applicant proposed an Assessment of Kshs. 35,753 having regard to the partial success of the suit as provided under Schedule 7 paragraph 3 of the Remuneration Order. Respondent’s Submissions 9. The Respondent contended that under Rule 55 (1) of the Auctioneers, Rules and relied in the holding in Bank of Uganda vs Benco Arabe Espanol [1999] 2 EA as was cited in Zacharia Barasa v Dubai Bank Kenya Limited [2015] eKLR to submit that the Court should only interfere with the decision of the Taxing master only upon being satisfied that the error substantially affected the decision and upholding the same would result to an injustice. 10. In opposition of the claim and in support of the taxed Bill, the Respondent submits that: a) Item 3 to proclamation and Taking Inventory. Rule 10 provides entitlement to what is reasonable and such the amount awarded of Kshs. 6000 was reasonable. Page 4 of 10

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Ruling in Civil Misc. No E317 of 2025 Daniel Kariru Vs Philip Kamuya Ta Crater View Auctioneer b) Item 4; Transport and mileage. Rule 11 allows Travelling expenses at 3 times the Automobile Associations rates. The rate applied was Kshs. 65 per kilometer. c) Item 5 Commission; the rules provide for 5% of the decretal sum being Kshs 411,743. Reliance is placed in the findings in Julius Mwale t/a Mwai Mart Supermarket v Kennedy Shikuku t/a Eshikoni Auctioneers & Another KEHC 23863 (KLR) and Oscar Otieno Odongo t/a Investments Auctioneers v Skari Industries Limited [2019] eKLR. d) Item 6 Investigation and pointing out; the same was considerable bearing in mind the work done. e) Item 7 Out of Pocket Expenses: Rule 10 allows it for it save for the fact what the Court may consider reasonable. f) Item 8 Transport Charges during attachment: Provided for under Rule 11 and that it was only fair the same be allowed g) Item 9: Labour for work done. that this was the amount that was paid to the Respondents staff during attachment and was justified with receipts. h) Item 10 Security during Attachment: Rule 9 allows an auctioneer to seek police assistance during execution. i) Advertisement and V.A.T Item No. 11 and 12: that a consent was recorded by parties in that the Applicant was to meet the auctioneers’ fees and, in the agreement, there was no provisions for agreed interests. In the absence of the same, interest ought to be at Court rates. j) In regards to advocates fees the Respondent Auctioneer has a right to legal representations and wherein the Advocate would Page 5 of 10

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Ruling in Civil Misc. No E317 of 2025 Daniel Kariru Vs Philip Kamuya Ta Crater View Auctioneer prosecute the bill of costs to its logical conclusion in the circumstances then advocates ought to be aid as claimed in the Bill of Costs. Analysis and Determination 11. Having considered the material placed before Court, the Court is called upon to determine whether the Bill of Costs dated 10 th March, 2025 and taxed on 7th November, 2025 was properly taxed and whether the Applicant’s proposed reassessment is justified. 12. The Applicant contends that several items were improperly allowed, either lacking statutory basis or documentary proof. The Respondent defends the taxation, arguing that the items were properly assessed under the Auctioneers Act and Rules, and that interference is only warranted where a substantial error is demonstrated. 13. Taxation of Auctioneers Bill of Costs is provided for and is governed by the Auctioneers Act and Auctioneers Rules 1997, specifically Part II of the Fourth Schedule. The guiding principle is that the Taxing Master enjoys discretion to determine what is reasonable. The Court’s role is not to substitute with its own view lightly but to interfere only where the Taxing Master misapplied the law, allowed items without statutory basis or failed to exercise discretion judiciously. 14. Guided by these guidelines, the Court now turns to examine the individual items in the Bill of Costs as challenged. Page 6 of 10

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Ruling in Civil Misc. No E317 of 2025 Daniel Kariru Vs Philip Kamuya Ta Crater View Auctioneer 15. Item 3 to proclamation and Taking Inventory. The Respondent sought Kshs. 6000 Rule 10 of the Fourth Schedule provides; For taking inventory of transporting movable property and for advertising and insuring movable and immovable property the auctioneer shall be paid such amount as the court may consider reasonable. The Rule allows for what is reasonable. Kshs 3000 is considered reasonable by this Court bearing in mind the circumstances of the case. 16. Item 4 traveling charges during proclamation. The Respondent sought 62,010 claiming to have covered 159 kilometers and used a multiplier of 3 as provided for by the Automobile Association as allowed in the Fourth Schedule. The Applicant has proposed Kshs 10,000 17. Having considered the provisions of Paragraph 11 of the Fourth Schedule as well as the Automobile Association scale and the Court is satisfied that a sum of Kshs 20,670 represents a fair and reasonable amount in the circumstances. 18. Item 6 (Fees on investigation and pointing out) the Rules do not provide for it hence taxed off. 19. Item 7: Out of pocket expenses and other incidentals. The Court allowed Khs. 10,000 which was disputed for not being provided for. The Respondent has submitted that Rule 10 allows it. I have looked Page 7 of 10

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Ruling in Civil Misc. No E317 of 2025 Daniel Kariru Vs Philip Kamuya Ta Crater View Auctioneer at the Auctioneers Rules and the Auctioneers (Practice) Rules under Legal Notice 143 of 2009 and the same is not provided for. the same is taxed off. 20. Item 8 transport Charges during attachment. The Magistrate allowed Kshs. 10,000. The Court has considered all the circumstances of the case, and is inclined to award the sum of Kshs 4,000 under this head as reasonable. 21. Item 10: Security The Respondent relied on Rule 9 (1) of the Auctioneer Rules to justify the amount. Nonetheless Rule 9 (2) stipulates that an application under this rule, that is an application for police escort shall be by motion by way of a miscellaneous application supported by an affidavit and may be heard ex parte. 22. There was no such application sought either to Court or the nearest polices station. Further in the Respondent’s Affidavit of 10 th March 2025 there is no indication of anticipated or actual resistance from the Applicant, there was no factual basis for the fees claimed. Item 10 is disallowed. 23. The Court further considers Item 14, which concerns the claim for advocate’s fees. The Fourth Schedule does not provide for such an award and the same cannot also be allowed. 24. Beyond the individual items, the Court must also address whether the overall taxed figure ought to have been halved in light of the consent Page 8 of 10

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Ruling in Civil Misc. No E317 of 2025 Daniel Kariru Vs Philip Kamuya Ta Crater View Auctioneer entered between the on 12th February, 2024 for settlement of the decretal amount. 25. Rule 7 of the Fourth Schedule provides that: where requisite notices are served and sale is stayed, or postponed the auctioneer is entitled to half of fees plus expenses. 26. The Taxing Master, however, did not take this provision into account when assessing the Bill of Costs as it was allowed as drawn. 27. In conclusion, the Applicant’s application by Chamber Summons dated 8th of November, 2025 is allowed in the following terms: a) The Ruling of the Taxing Master be and is hereby set aside and substituted as follows: b) Items number 1 and 2 are taxed as drawn. Kshs 1,000 and Kshs 4,000 respectively c) Item 3, Kshs 6,000 is taxed at Kshs. 3,000 d) Item 4 is the reserve amount of Kshs. 62,010 is taxed at Kshs, 20,670 e) Item 5 is taxed as drawn at Kshs. 20,587 f) Items 6 and 7 are taxed off g) Item 8 the reserved amount of Kshs 10,000 is taxed at Kshs. 4,000 h) Item 9 is taxed as drawn at Kshs. 30,000 i) Item 10 taxed off j) Item 11 taxed as drawn at Kshs 11,782 Page 9 of 10

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Ruling in Civil Misc. No E317 of 2025 Daniel Kariru Vs Philip Kamuya Ta Crater View Auctioneer Subtotal Kshs. 95,043 k) The Rule 7 provided that the Respondent is entitled to half the fees; i.e. half of Kshs. 95,043 is Kshs 47,521.5 l) Add Item 12 on VAT taxed as drawn at Kshs 4,094 Total Kshs 51,615.5/28. A certificate to issue in those terms and each party to bear its own costs. Delivered, Dated and signed at Nakuru On this 12th day of March, 2026 __________________________ Mohochi S.M. Judge Page 10 of 10

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