Wanyonyi v Dabani & 2 others

a letter of instruction from the Decree Holder or the Decree Holder’s counsel to prove on a balance of probabilities that he was instructed to levy execution against the Judgment Debtors. It is also noteworthy that the Auctioneer did not le the proclamation notices he reportedly served upon the Judgment Debtors. 5. However, this court is well aware that the 2nd Judgment Debtor led an Application dated 30th April 2026 seeking to stop the Auctioneer from executing the decree herein against him. This shows that the Decree Holder instructed the Auctioneer to proclaim the 2nd Judgment Debtor’s property in execution of the decree herein. 6. Notwithstanding the foregoing, in the absence of the proclamation notices served upon the 1st and 3rd Judgment Debtors, this court cannot ascertain whether the Auctioneer proclaimed the 1st and 3rd Judgment Debtors’ property as alleged in the instant Bill of Costs. 7. It follows that the Auctioneer cannot seek to recover execution costs from the 1st and 3rd Judgment Debtors without proof of having proclaimed the said Judgment Debtors’ property in execution of the decree herein. 8. Be that as it may, the record shows that judgment was entered against the 1st Judgment Debtor while the suit against the 2nd and 3rd Judgment Debtors was dismissed with costs on 06th February 2026. This means that the only party the Decree Holder could instruct the Auctioneer to levy execution against was the 1st Judgment Debtor. 9. The analysis above shows that any execution levied against the 2nd and 3rd Judgment Debtors was null and void ab initio. 10. It is for the reasons above that this court nds that the instant Bill of Costs led without proclamation notices and which seeks to recover auctioneer’s costs from the Judgment Debtors arising from unproven and illegal execution is not properly before this court. Who should Bear the Auctioneer’s Costs 11. This court has already made a nding that any execution levied against the 2nd and 3rd Judgment Debtors was a nullity. Auctioneer costs arising from an illegal execution process are borne by the party that instructed the auctioneer (see Rose Chepkorir v Mwinyi Mohammed Riva & another [2015] eKLR). 12. The nding in paragraph 11 above may tempt one to argue that this court should proceed to assess the instant Bill of Costs and then order the instructing party, the Decree Holder, to settle the assessed auctioneer’s costs. Ominde J gave guidance on this issue in Arisi t/a Credible Auctioneers v Cooperative Bank of Kenya Ltd & another (Miscellaneous Civil Application E281 of 2024) [2026] KEHC 7794 (KLR) by eloquently rendering herself thus: “ 39. In the instant case, it is common ground that there was no execution conducted as the decretal sum was paid by the judgment debtor before the lapse of the proclamation notice. This being the case, and in any event, it was imperative that the Auctioneer sends a fee note to the Respondent Bank on the work done so that the parties discuss the amount payable and only move the court if they fail to agree as is provided under Rule 55(2) herein cited that the court should only be moved where a dispute arises. 40. However, in his pleadings, the Applicant has not only not alluded to the fact that he did comply with this requirement and a dispute arose hence the need https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/908/eng@2026-09-08 2

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to le his Bill of Costs, but he has also not demonstrated to court in any way that he did comply by annexing the relevant correspondence. 41. 42. Further to the above, having read the impugned Ruling, I note that contrary to the assertion by the Applicant that the Learned Trial Magistrate did not give any reasons for his decision to strike out the Applicant’s Bill of Costs, the reasons were actually given in the said and they are as hereunder; i. That there was no evidence that orders were made by the Trial Court in the primary that the auctioneer was entitled to costs for the pre-empted execution when the Respondent Bank payed the entire decretal sum ii. That under Rule 55(2) of the Auctioneers Rules herein cited, before a Bill of Costs is led for taxation, the party so ling must demonstrate that a dispute has arisen. The Appellant herein did not show that he sent a fee note to the Respondent Bank and/ or that the said Bank disputed the fee note hence the need to le a Bill of Costs and that in this regard, the same was prematurely before the court iii. The Applicant was therefore directed to rst forward his fee note /invoice to the Bank for consideration and in the event of a dispute as envisaged under the Rules, he was at liberty to le his Bill of Costs before any court of competent jurisdiction. The above being the case, I am satised that the Learned Trial Magistrate did not at all misdirect himself and/or err in his Ruling in relying on the provisions of Rule 55(2) of the Auctioneers Rules in striking out the Applicants Bill of Costs for being premature. Accordingly, I nd merit in the said decision and the same is upheld.” 13. This court’s reading of the authority above is that a court can only assess costs between an Auctioneer and the instructing party after being moved upon the dispute contemplated under Rule 55(2) of the Auctioneers Rules arising. That is not the case in the instant matter. Therefore, this court declines at this stage to assess the Auctioneer’s costs due to the Auctioneer from the Decree Holder. 14. The foregoing inclines this court to nd that the Decree Holder shall bear the Auctioneer’s costs arising from any execution conducted by the Auctioneer herein upon the Auctioneer complying with the relevant provisions of the Auctioneers Rules. Determination 15. The upshot of the above is that the Auctioneer’s Bill of Costs dated 09th July 2026 is dismissed with no order as to costs. RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 08TH DAY OF SEPTEMBER 2026. T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/908/eng@2026-09-08 3

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C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/908/eng@2026-09-08 4

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