REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET CIVIL APPEAL NO. E198 OF 2024 RICHARD WAIANINA T/A SEVENTY SEVEN AUCTIONEERS………….……………..APPELLANT -VERSUS KAN TRAVELERS………………………………….………..RESPONDENT (Being an appeal against part of the ruling of the Hon. Rodgers Otieno -Adjudicator in Eldoret Small Claims Court Misc. Comm. App. No. E014 of 2024 — Richard Wainaina T/A Seventy-Seven Auctioneers v Kan Travelers Limited dated 12/09/2024) JUDGEMENT 1. The impugned decision in this Appeal arises from the Appellants’ Notice of Motion in the trial court dated 2 nd May 2024 seeking the following orders 1) That the Applicants bill of costs arising out of the execution on Eldoret SCCOMMC E656 of 2023 – Jacob Nganga Ngunyo vs Joseph Kang’ethe and Kan Travelers be assessed as drawn and paid by the Respondent. 2) That the court issues a certificate of costs and adopts the same as its order/judgment for execution purposes. 3) The costs of this application be borne by the Respondent. 2. The Applicant therein pleaded that on 12th March 2024, he received a warrant of attachment in respect of Eldoret SCCOMMC E656 of 2023 – Jacob Nganga Ngunyo vs Joseph Kang’ethe and Kan Travelers with instructions to execute against the Respondent which he did. He then proceeded to proclaim the Respondents’ motor vehicle registration no. KCT 561N make Toyota valued at Kshs. 600,000/-. He informed the decree holder of the action taken vied a letter dated 13 th march 2024 and the Respondent failed to pay his fees thus he sought the courts’ assessment. He listed his costs and prayed that the bill be drawn as assessed. 1|Page ELDORET HCCA E198/2024
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3. The Respondent filed a replying affidavit strangely dated 21 st May 2023 in opposition to the Application although it is in response to the Application dated 2nd May 2024. He deponed that he was opposed to the bill of costs as it was excessive. Further, that the Appellant seized the Respondents’ movable assets illegally occasioning loss of user. 4. The Applicant then filed a Supplementary affidavit dated 7 th August 2024 where he pleaded that the value of the proclaimed property was Kshs. 6,000,000/- which was erroneously indicated as Kshs. 600,000/-. 5. The parties filed submissions on the bill of costs and vide the ruling delivered on 12th September 2024, the trial court assessed the bill at Kshs. 62,800/-. 6. Being dissatisfied with the entire decision, the Appellant filed the present appeal vide a Chamber Summons dated 19 th September 2024 seeking orders that 1) That the decision dated 12th September 2024 delivered in Eldoret SCCOMM No. E014 of 2024 be set aside in so far as it disallowed the award of fees on attachment to the Appellant and substituted thereof an order granting the said fees. 2) That the costs of the appeal be granted to the Appellant. 7. The parties were directed to file submissions on the appeal Appellants’ submissions; 8. Counsel laid down a summary of the background of the issues leading up to the appeal and proceeded to identify the issues for determination, and submit on the same. 9. The deponent averred that the learned trial adjudicator ought to have been bound by the decision of the Court of Appeal on proclamation by an auctioneer in the case of National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneers, (2005) eKLR. He cited Mohamed Abushiri Mukullu vs Minister for Lands and Settlement & 6 others [2015] eKLR on the principle of stare decisis. He additionally placed reliance on Ferdinand Ndung’u Waititu vs Independent Electoral & Boundaries Commission 2|Page ELDORET HCCA E198/2024
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(IEBC) & 8 others [2014] eKLR, and Jasbir Singh Rai & 3 Others vs Tarlochan Singh & 4 Others, [2013] eKLR. 10. Counsel submitted that the appellant deponed in the trial court that he received warrants of attachment and proceeded to proclaim the Respondent’s movable property. In the replying affidavit filed by the Respondent, this fact was concordant. It is the appellant’s humble submission that a proclamation is effectively an attachment. This position is informed by the Court of Appeal holding in National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneers, (2005) eKLR. 11. He urged the learned trial adjudicator fell into error in failing to find that based on the above decision, attachment was effectively done by the appellant and he was entitled to fees for attachment. 12. Counsel invited the court to find merit in the appeal and proceed to allow it by setting aside the order disallowing the item on attachment and substitute it by an order allowing it and assessing the fees based on the attached value of Kshs. 6,000,000 as captured in the proclamation as follows; 1) Kshs. 4,001 - Kshs.100,000 at 10% being Kshs.10,000. 2) Kshs.100,001 - Kshs.1,000,000 at 5% being Kshs. 50,000. 3) Over Kshs. 1,000,000 being 2% of the balance of Kshs. 4,900,000 thus Kshs. 98,000. 13. Counsel prayed that the item be allowed at Kshs. 158,000 together with costs of the appeal and interests. Analysis & Determination; 14. This being a first Appeal, the court is enjoined to analyze and reassess the evidence afresh and reach its own conclusions but always bearing in mind that it neither saw nor heard the witnesses testify. This position was affirmed in Selle v Associated Motor Boat Co. [1968] EA 123 andKiruga v Kiruga & Another [1988] KLR 348 cases. 3|Page ELDORET HCCA E198/2024
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15. The germane issue that arises for determination is; whether the trial court erred in excluding fees on attachment. 16. As regards the nature of taxation proceedings, the Court in Premch and Raichand Ltd & Another v Quarry Services of East Africa Ltd [1972] EA 162, Spry, V-P. stated at p.164 that:- “The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, and particularly where he is an officer of great experience, merely because it thinks the award somewhat is too high or too low: it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other.” 17. The Court laid down some principles to undergird the exercise of discretion by taxing officers in the assessment of costs as follows:- “(a) that costs be not allowed to rise to such a level as to limit access to the courts to the wealthy only; (b) that a successful litigant ought to be fairly reimbursed for the costs he has had to incur; (c) that the general level of remuneration of advocates must be such as to attract recruits to the profession; and (d) that so far as practicable there should be consistency in the awards made.” 18. The Court of Appeal in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR stated as follows in respect of reference before a Judge; “On a 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. In Arthur v Nyeri Electricity Undertaking [1961] EA 497, the predecessor of this Court said at page 492 paragraph I: 4|Page ELDORET HCCA E198/2024
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Where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will interfere only in exceptional cases”. 19. I have considered the decision of the taxing master and I note that in his decision, the learned adjudicator held that there was no attachment of proclaimed properties. It was on this basis that he excluded item number 4 which were the fees on attachment. The Appellant maintains that the finding was erroneous as proclamation amounts to attachment. 20. Rule 55(1) of the Auctioneers’ Rules 1997 provides as follows; Except as may be provided by any other written law or by contract the fees set out in the Fourth Schedule payable to the auctioneer for the attachment, repossession and sale of movable and immovable property under court warrants or letters of instructions shall be charged in accordance with these Rules. 21. The rules provide for payment of fees upon attachment and not upon proclamation. The Appellant contends that the property was proclaimed. As to the attachment of the property, there is no proof that the same was attached and the Appellant does not assert that it was. I am guided by the holding in Agricultural Development Corporation vs James Onkundi Omakori t/a Lifewood Auctioneers (2020) eKLR where the learned judge held that; “…The action of attaching cannot be equated to proclaiming for the simple reason that the two processes are mutually exclusive. The proclamation comes before attachment. The auctioneers’ Rules under Chapter 526 of the Laws of Kenya in the portion dealing with attachment clearly provides separate charges or fees on attachment before or after.” 22. The Court of Appeal in National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer [2005] KECA 22 (KLR) held that Auctioneer’s charges for attachment should be based on the value of the goods attached and not on the decretal sum. 5|Page ELDORET HCCA E198/2024
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23. Given that there were no goods attached, it follows that the learned adjudicator was correct in his finding. Costs: 24. The Supreme Court in the case of Jashir Singh Rai & Others vs. Tarlochan Rai & Others observed that,” In the classic common law style, the courts have to proceed on a case-by-case basis, to identify "good reasons" for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…” 25. The appellant shall bear the costs. Determination: 26. The Appeal lacks merit. Order: The Appeal is dismissed with costs to the Respondent. Delivered, Dated and Signed on This 19th Day of June 2026 at Eldoret High Court ……………………………… J. M. CHIGITI (SC) JUDGE In the presence of; Muo for the appellant 6|Page ELDORET HCCA E198/2024
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