REPUBLIC OF KENYA IN THE CHIEF MAGISTRATES COURT AT BUNGOMA CIVIL MISC. APPL. NO. E106 OF 2025 ZEPHANIA AMENYA AREBA T/A REMA AUCTIONEERS…………………………………………………….AUCTIONEER/APPL ICANT AND ROMANO MISIKO WACHAYE…….. GLADYS NANYAMA MASINDE…………………………………………….DECREE HOLDER THE HON. ATTORNEY GENERAL…………………………………………DECREE HOLDER RULING 1. This ruling determines the Auctioneer/Applicant’s ex-parte Notice of Motion Application dated 10th February 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. 2. 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 10th February 2025. 3. The Applicant sought the orders on the face of the instant Application on the ground that he was instructed by the decree holder in Bungoma CMCC/208/2022 (in this ruling referred to as ‘the primary suit’) to levy execution against the Respondents. The Applicant executed those instructions hence the claim for the costs sought.
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4. The instant Application was opposed by the 2nd Respondent through his Replying Affidavit sworn on 27th February 2025. 5. It was the 2nd Respondent’s averment that further execution in the primary suit was stayed on 10th September 2024. He added that he obtained a stay of execution in the primary suit vide a ruling delivered on 09th January 2025 in Bungoma HCCA E110 of 2024. In the premises, the Applicant urged this court to find that the Applicant was not entitled to the costs sought. 6. The Respondent also argued that the Applicant could not proceed with execution in the primary suit since the 2 nd Respondent did not sign the sale form 2 filed herein. ANALYSIS & DETERMINATION 7. This court has duly considered the pleadings, the submissions and the authorities relied upon by the parties herein. The issues that commend to this court for determination are:a) Whether the Auctioneer/Applicant is entitled to the costs sought b) If the Auctioneer/Applicant is entitled to the costs sought, what are the costs due Whether the Auctioneer/Applicant is entitled to the costs sought 8. The 2nd Respondent sought to rely on the stay of execution orders issued in Bungoma HCCA E110 of 2024 to show that the Applicant proceeded on an illegal execution. This court has had the benefit of perusing those orders issued on 10th September 2024 and 09th January 2025. 9. A reading of those orders shows that the court did not declare the execution in the primary suit illegal. Those orders simply stayed the execution in the primary suit, nothing more. 10. It is abundantly clear that those stay orders did not have a retroactive effect on the execution process. Therefore, any execution process undertaken by the Applicant before 10 th September 2024 had
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the full backing of the law hence the Applicant is entitled to be compensated for the services rendered before issuance of the stay of execution orders. 11. On the 2nd Respondent’s contention that he did not sign the sale form 2 herein hence execution ought to have not ensued against him, the Auctioneers Rules provide that where a judgment debtor fails to sign the said form, that form is complete where the auctioneer indicates that the person served declined to sign that form. 12. A perusal of the said form shows that the Applicant complied with the provisions of the Auctioneers Rules given that the said form was filled appropriately by capturing the words ‘declined to sign.’ 13. It is against this backdrop that this court finds that the Applicant is entitled to costs for the execution services he rendered in the primary suit before 10th September 2024. What are the costs due to the Auctioneer/Applicant 14. The Auctioneer’s Bill of Costs dated 10th February 2025 is hereby assessed as hereunder. 15. Items 1,3,7 & 13 were assessed as drawn since the same were drawn to scale. 16. Item 2 was assessed off for being a repeat of item 1. 17. Item 4 relates to commission upon proclamation on execution. The fees due under this item is assessed depending on the value of the items proclaimed. However, the law in this jurisdiction is that where the value of the proclaimed property exceeds the decretal sum, the commission due is calculated based on the decretal sum. This is the legal position as set out by PJ Otieno J. in Julius Mwale t/a MwalMart Supermarket v Kennedy Shikuku t/a Eshikhoni Auctioneers & another (Miscellaneous Civil Case E006 of 2023) [2023] KEHC himself thus: 23863 (KLR) where he eloquently rendered
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While this court is bound by the decision of the court of Appeal, in this matter where the statute is left to interpretation by the court, the court finds that to interpret the value for computation of the auctioneer’s fees on the value of the attached goods would be unjust to the person ultimately obligated to meet such costs. In this particular case where the value of the proclaimed properties was way many times above the amount in the decree to be recovered, it is the court’s finding that the commission should be assessed based on the decretal sum being Kshs. 306,000/-and that to use the value of the attached goods would be to unfairly enrich the auctioneer. 18. The decretal sum in the primary suit was Kshs. 603,715/=The items proclaimed by the auctioneer were valued at Kshs. 970,000/=. 19. Guided by the authority above, the fees due to the Applicant under this item per paragraph 4 of the fourth schedule is 5% of Kshs. 603,715/= which translates to Kshs. 30,185.75/=. 20. Fees under paragraph 10 of the fourth schedule are only awarded where inventory is taken for transportation of the proclaimed goods. Further execution was stayed in the primary suit after proclamation hence there was no transportation of the movable property proclaimed in this matter. Therefore, item 5 was taxed off. 21. Item 12, being a disbursement that needs to be proved by way of a receipt, was taxed off for want of proof. 22. Item 14 involved service of the instant Application within Bungoma and via email as set out in the Affidavit of Service sworn by one Robert Kiolunga on 19 th February 2025. Proof of payment of Kshs. 8,000/= was not availed by the Applicant. In the circumstances, the court exercised its discretion and assessed item 14 at Kshs. 1,400/=.
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23. There is no receipt on record to prove that the Auctioneer/Applicant paid Kshs. 10,000/= as advocate fees to the advocate who filed this matter as claimed under item 15. However, it is common ground that the Auctioneer/Applicant instructed an advocate to prosecute the instant Application. That being the case, this court exercised its discretion and assessed item 15 at Kshs. 5,000/=. 24. Item 17 being 16% of Kshs. 46,977.75/= was taxed at Kshs. 7,516.44/=. DETERMINATION 25. The upshot of the foregoing is that the Auctioneer/Applicant’s Bill of Costs dated 10th February 2025 is assessed at Kshs. 54,494.19/=. Ruling read, signed and delivered in open Court at Bungoma this 25th day of March 2025. T.O. OMONO RESIDENT MAGISTRATE In the presence of: Satia for the Respondent C/A: Mercy Kiboi
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