REPUBLIC OF KENYA IN THE CHIEF MAGISTRATES COURT AT BUNGOMA CIVIL MISC. APPL. NO. E166 OF 2025 ZEPHANIA AMENYA AREBA T/A REMA AUCTIONEERS…………………………………………………….AUCTIONEER/APPL ICANT AND EZEKIEL WABWIRE SAENYI………………………………………………………….PLAINTIFF/DECREE HOLDER VERSUS CYPHRENE SIMIYU SABUNI & ANOTHER……………………... ………………………………..DEFENDANT/RESPONDENT RULING Before this court is the Auctioneer/Applicant’s ex-parte Notice of Motion Application dated 13th January 2025 brought under section 3, 3A of the Civil Procedure Act, rule 7 of the Auctioneers Rules 1997, and all other enabling provisions of the law. The instant Application is grounded on the grounds on the face of it and further grounds set out in the supporting affidavit sworn by Zephania Amenya Barasa on 13th March 2025. The instant Application is largely grounded on the ground that the Applicant seeks costs arising from the execution duties he rendered for
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the Plaintiff/Decree Holder against the Defendant/Respondent in Bungoma CMCC No. 265 of 2021 (in this ruling referred to as ‘the primary suit’). The instant Application was canvassed by way of written submissions. This court has duly considered the parties' respective written submissions. Defendant/Respondent opposed the instant Application through written submissions dated 13th June 2025. ANALYSIS & DETERMINATION This court has duly considered the pleadings, the submissions and the authorities relied upon by the parties herein. The only issue that commends to this court for determination is the costs due to the auctioneer. Items 1,3, and 13 were assessed as drawn since the same were drawn to scale. Item 2 was taxed off for being a repeat of item 1 since the Auctioneer’s instruction fees is only payable once. The value of the proclaimed property was approximately Kshs. 800,000/=. The decretal sum was Kshs. 142,150/=. In Julius Mwale t/a Mwal-Mart Supermarket v Kennedy Shikuku t/a Eshikhoni Auctioneers & another (Miscellaneous Civil Case E006 of 2023) [2023] KEHC 23863 (KLR) , it was held that where the value of the proclaimed
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property is higher than the decretal sum, the auctioneer’s commission should be based on the decretal sum. In the circumstances, item 4 was taxed based on the decretal sum, which translated to 5% of Kshs. 142,150/= amounting to Kshs. 7,107.50/= Item 5 was taxed off since the execution of the decree in the primary suit was stayed by the court hence the taking of inventory on proclamation did not take place. The logbook placed before this court by the auctioneer to prove that the auctioneer travelled using motor vehicle registration number KCS 193 L in execution of his duties shows that the said motor vehicle is owned by Auto Mega Limited. The said motor vehicle is not owned by the auctioneer. Therefore, it follows that the auctioneer failed to prove that he used the said motor vehicle in execution of his duties. However, it is given that the auctioneer visited the judgment debtors’ homes in Bungoma. This court exercises its discretion and hereby awards the auctioneer Kshs. 3,000/= under item 7. The claim in item 12, being a disbursement, needed to be proved by way of a receipt. No receipt was supplied in support of that claim, hence item 12 was taxed off.
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Service in item 14 was effected in Sibembe. This court is of the considered view that Kshs. 5,000/= is adequate compensation for that task. Item 15 was not supported by a receipt. However, it is common ground that the Auctioneer/Applicant instructed an advocate to file the instant Application. It is this court’s considered view that Kshs. 10,000/= is a reasonable award in item 15. Given the above, the costs due to the Auctioneer/Applicant in item 16 were taxed at Kshs. 34,107.50/=. Item 17 being 16% of Kshs. 34,107.50/= was taxed at Kshs. 5,457.20/=. DETERMINATION For the reasons above, the Auctioneer/Applicant’s Bill of Costs dated 13th March 2025 is taxed at Kshs. 39,564.70/=. Ruling read, signed and delivered in open Court at Bungoma this 01st day of July 2025. T.O. OMONO RESIDENT MAGISTRATE In the presence of: Ms. Wesonga h/b for Wayongo for the Defendant C/A Albert
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