Areba t/a Rema Auctioneers v Bhole Pan House Enterprises Ltd & another (Civil Miscellaneous Application E010 of 2025) [2025] KEMC 459 (KLR)

4. The Defendant/Respondent opposed the instant Application through written submissions dated 24th February 2025. 5. The Defendant/Respondent argued that the Auctioneer/Applicant was not entitled to the costs sought on the ground that the Auctioneer/Applicant served the alleged pre-completed proclamation notices upon the Respondent on 09th October 2024 in Nairobi through one Victor Musonye. 6. In the circumstances, the Defendant/Respondent urged this court to find that the purported proclamation was unprocedural and irregular hence the instant Application be dismissed. 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 Defendant/Respondent sought to impeach the contents of the Auctioneer/Applicant’s Supporting Affidavit sworn on 13 th January 2025 through written submissions dated 24th February 2025. 9. It should be borne in mind that the said Supporting Affidavit set out in detail the services that the Auctioneer/Applicant rendered leading to the filing of the instant Application. 10. The Defendant/Respondent purported to lead evidence through submissions. The law in this jurisdiction is that submissions are neither pleadings nor evidence. A party can not use submissions to lead evidence. A party can not use submissions to lead evidence meant to impeach the contents of an Affidavit. The Court of Appeal in Daniel

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Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR rendered itself thus on this issue: “Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.” 11. The weight to be attached to submissions was aptly captured by Magare J in Mwavula v Waweru t/a Antique Auctioneers Agencies & another (Civil Appeal E374 of 2023) [2024] KEHC 5988 (KLR) when the learned judge stated: “Submissions are neither pleading nor evidence. Beautiful pleadings are akin to watching warm fire in television. It will not remove any morning chilly weather.” 12. In any event, where a party has reasons to believe that a Supporting Affidavit contains falsehoods, the proper procedure is for such a party to either file a Replying Affidavit setting out their side of the story or to make an application for summoning whoever swore the impugned Supporting Affidavit for purposes of cross-examination on the contents of the impugned Supporting Affidavit. A party disputing the averments in an Affidavit has the onus of disproving the averments in that impugned Affidavit. There is always, in the absence of evidence to the contrary, a presumption of truth of the averments in a Supporting Affidavit. 13. This court is also of the considered view that relying on allegations in submissions that were not served upon the

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Auctioneer/Applicant to impeach Auctioneer/Applicant’s Supporting the Affidavit contents will of the prejudice the Auctioneer/Applicant since the Auctioneer/Applicant stands to be condemned unheard. 14. The Defendant/Respondent having failed to file a Replying Affidavit or make an Application for summoning of the Auctioneer/Applicant for cross-examination on the contents of his Supporting Affidavit, it follows that the Defendant/Respondent failed to disapprove and/or impeach the contents of the Auctioneer/Applicant’s Supporting Affidavit herein. 15. It is against this background that this court holds and finds that the Auctioneer/Applicant is entitled to the fees for the services rendered as set out in the Supporting Affidavit herein. What are the costs due to the Auctioneer/Applicant 16. The items objected to by the Defendant/Applicant were assessed as hereunder. 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. The items proclaimed were valued at Kshs. 2,010,000/= hence the fees due under this item per paragraph 4 of the fourth schedule is 2% of Kshs. 2,010,000/= which translates to Kshs. 40,200/=. 18. Item 5 was taxed off since the fees under paragraph 10 of the fourth schedule are only awarded where inventory is taken for transportation of the proclaimed goods. There is no indication of transportation of the movable property proclaimed in this matter. 19. Item 7 was assessed as drawn since, as held above in this ruling, the Defendant/Respondent failed to impeach the

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averments in the Auctioneer/Applicant’s Supporting Affidavit herein. 20. Item 12, being a disbursement that needs to be proved by way of a receipt, was taxed off for want of proof. 21. Item 13 was taxed as drawn since the same was evidenced by the court fees receipt on record. 22. Item 14 involved service of the instant Application via email as set out in the Affidavit of Service sworn by one Robert Kiolunga on 23rd January 2025. Guided by Aburili J.’s holding in Aoro v Were (Miscellaneous Reference Application E019 of 2022) [2022] KEHC 14628 (KLR)), item 14 was taxed at Kshs. 1,400/=. 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. 131,915/= was taxed at Kshs. 21,106.40/=. DETERMINATION 25. For the reasons above, the Auctioneer/Applicant’s Bill of Costs dated 13th January 2025 is assessed at Kshs. 153,021.40/=. Judgment read, signed and delivered in open Court at Bungoma this 04th day of March 2025. T.O. OMONO RESIDENT MAGISTRATE

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In the presence of:

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