Ratika v Mumias Sugar (2021) Ltd (Civil Case E184 of 2024) [2026] KEMC 648 (KLR)

Macharia t/a Platinum Auctioneers (Miscellaneous Civil Application E118 of 2021) [2022] KEHC 9913 (KLR)). 7. Rule 7 of the Auctioneers Rules, 1997 (‘the Rules’) provides thus on who should bear the Auctioneer’s fees: A debtor shall pay the charges of the auctioneer unless (a) that debtor cannot be found; or (b) he has no goods upon which execution can be levied; or (c) the sale proceeds are insuficient to cover the charges, In which cases the creditor shall pay the charges or the deficiency thereof. 8. There is nothing on record to suggest that the Defendant/Judgment Debtor cannot be found or that the Judgment Debtor does not have goods upon which execution can be levied. There is also nothing on record to suggest that the decretal sum paid to the Decree Holder by the Judgment Debtor was inclusive of the Auctioneer’s fees. 9. In the circumstances, the Judgment Debtor must be called upon to settle the Auctioneer's fees which the Decree Holder ought to have paid the Auctioneer. 10. Given the above, it is this court’s considered view that the only issue for determination is the fees due to the Auctioneer. 11. Items 2, 3 & 13 were assessed as drawn since the same were drawn to scale. 12. The items opposed by the Judgment Debtor have been assessed as set out below. 13. Item 1 (c) was assessed ofi for being a repeat of item 1 (a). 14. The value of the proclaimed goods was Kshs. 3,357,500/= while the decretal sum was Kshs, 2,395,711.30/=. The Auctioneer rightly submitted that given the value of the proclaimed goods was higher than the decretal sum, the Auctioneer’s commission ought to be calculated based on the decretal sum ((see 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)) and Oscar Otieno Odongo t/a Odongo Investment Auctioneers v Credit Bank Limited (Civil Appeal E052 of 2024) [2025] KEHC 3526 (KLR)). 15. The Auctioneer took the position that the commission due to him should be calculated using the various bands with difierent percentages set out in Part II of the Fourth Schedule of the Rules. 16. The question of how the Auctioneer’s commission should be worked out under the Rules was settled by Mrima J in Oscar Otieno Odongo t/a Odongo Investment Auctioneers v Sukari Industries Limited [2019] KEHC 9116 (KLR), where the learned judge rendered himself thus: ‘According to the Appellant, such a sum will be calculated as follows: 10% for the first Kshs. 100,000/=, 5% for the next Kshs. 900,000/= and 2% for the balance of Kshs. 500,000/ =. This formula yields the Auctioneer fees for proclamation of the goods worth Kshs. 1,500,000/= at Kshs. 65,000/= whereas on the other hand the 2% of Kshs. 1,500,000/= will result to Kshs. 30,000/=. It is hence clear that the proposal by the Appellant is intent on sustaining the urge to unjustly enrich the Auctioneer. This Court is under a duty to ensure that costs of litigation are possibly minimized since uncushioned high such costs can impede access to justice. (See Article 48 of the Constitution). https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/648/eng@2026-03-03 2

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I, therefore, find and hold that Auctioneer Fees on proclamation must be pegged on the relevant single percentage provided for in Part II of the Fourth Schedule of the Rules and should not be worked through the various bands with difierent percentages. The court was hence right, and the Appellant’s contention fails.’ 17. Guided by the authority above, the Auctioneer’s commission in item 4 works out as follows: 2% of Kshs. 2,395,713/= which equals to Kshs. 47,914.26/= 18. The Auctioneer did not plead in the Bill of Costs the mode of transport he used in travelling from Bungoma to serve the proclamation notices upon the Judgment Debtor in Mumias. However, the Auctioneer submitted that he used his motor vehicle registration number KBQ 727 C with a capacity of 2,400 cc to travel from Bungoma to Mumias, a distance of 31 kilometers, hence his position that his travelling allowances in item 11 ought to work out as follows: 73.20/= x 3 x 2 x 31 per paragraph 11 to the fourth schedule. 19. This begs the question of whether written submissions can be used to introduce evidence. The Court of Appeal was addressed this question in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR as follows: “ 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.” 20. The authority above inclines this court to find that the Auctioneer failed to prove by way of evidence that he used motor vehicle registration number KBQ 727 C with a capacity of 2,400 cc to travel from Bungoma to Mumias to serve the proclamation notice upon the Judgment Debtor. 21. However, it is not lost to this court that the Auctioneer served a proclamation notice upon the Judgment Debtor. The Auctioneer is, therefore, entitled to the fees for service of the proclamation notice. Taking the totality of the circumstances of this case, this court exercises its discretion and assesses item 11 at Kshs. 5,000/=. 22. Item 11 was assessed ofi for want of particulars and want of proof since the Auctioneer did not plead in the Bill of Costs the particulars of the disbursements sought. 23. Item 14 was assessed ofi for want of particulars on what was allegedly served by the process server. 24. Item 15 was assessed ofi given that court collection fees are paid by the Decree Holder not the Auctioneer. In the event the Auctioneer paid the court collection fees for the Decree Holder, he can only claim the same from the Decree Holder not the Judgment Debtor. 25. The Judgment Debtor opposed the Auctioneer’s claim for V.A.T. This court takes judicial notice of the fact that an Auctioneer’s firm is a V.AT entity. The Auctioneer fees claimed herein constitute an Auctioneer’s income. Such income attracts V.A.T (see Kenya Tea Packers Company Limited v Hezron Getuma t/a Hegeons Auctioneers [2021] KEHC 7796 (KLR)). 26. Given the above, item 16 on V.A.T works out as follows: 16% of Kshs. 66,914.26, which equals Kshs. 10,706.28/=. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/648/eng@2026-03-03 3

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Determination 27. The upshot of the foregoing is that the Auctioneer’s Bill of Costs dated 19th December 2025 is assessed at Kshs. 77,620.54/=. 28. Each party shall bear their costs of the instant Bill of Costs. RULING READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 03RD DAY OF MARCH 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Lang’at for the Defendant C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/648/eng@2026-03-03 4

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