REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CIVIL APPEAL NO. 110 of 2017

B E T W E E N:

(1)  SYRILLA A. BARASA                                                              

(2)  STELLA NYAROTSO BARASA                                             

(3)  COLLINS CHITINDE BARASA ................ APPELLANTS

VERSUS

MARGARET ASEKA BARASA......................... RESPONDENT

(Being an Appeal from the decision of Hon F. M. Nyakundi Resident Magistrate delivered in the SPM’s Court

Mumias in SPMCC No. 272 of 2016)

J U D G M E N T 

1.           This is an Appeal from the Decision of Hon F.M. Nyakundi RM in SPMCC No 272 of 2016 from the SPM’s Court in Mumias delivered on 11^th September 2017 in relation to two distinct applications, the first by the First and Second Appellants (who were Defendants in the Court below) for leave to defend the suit and the second by the Third Appellant (as Objector/Plaintiff) for either a declaration that his goods were seized unlawfully, or that his property being unlawfully seized, be returned.   In each case the Application was dismissed with each Party paying its own costs.

2.           The Rulings sets out its subject matter as “an application made by the objector and the written submission by the auctioneer dated 7/7/17 and also on the application made by the defendants dated 17/2/17.  The application by the objector is dated 10/3/17.”

3.           The background to the underlying litigation is that the Plaintiff/Respondent and the two Appellant/Defendants are the widows of the late Wycliffe Barasa Chitende who passed away in 2004 intestate.  The Objector/Third Appellant is one of the sons of the Deceased.  The underlying suit relates to an alleged debt of the Estate which the Plaintiff/Respondent asserted should be paid by the Widows in the shares she alleged.  The Learned Trial Court gave judgment in default of Defence in favour of the Plaintiff and when there was execution, he dismissed the Applications for leave to defend as well as any stays of execution. 

4.           The Memorandum of Appeal is dated 9^th October 2012 and was filed on 9^th October 2017.  It states:

“The Appellants herein being aggrieved by the Ruling of the Honourable F. Nyakundi, R.M. vide Mumias Civil Case No 272 of 2016 delivered on the 11^th day of September 2017: 

Prefers an Appeal against the said Ruling as hereunder:

1.   That the Learned Magistrate erred in law and fact by misapplying the principles of the law relating to the setting aside of ex parte judgments which had been obtained against the 1^st and 2^nd Appellants.

2.   That the Learned Magistrate erred in law and fact by failing to give due consideration to the Objection Proceedings lodged by the 3^rd Appellant.

3.   That the Learned Magistrate erred in law and fact by failing to appreciate that the execution proceedings as conducted by the Auctioneers was ultra vires the law.

REASONS WHEREFORE the Appellant’s pray that the Lower court Ruling be set aside and quashed and:

1.   That the 1^st and 2^nd Appellants’ Notice of Motion Application dated 17^th day of February 2017 be allowed.

2.   The 3^rd Appellant’s Objection Proceedings dated the 10^th day of May 2017 be allowed.”.

5.           The Application filed by the 1^st and 2^nd Appellants was filed on 17^th February 2012.  It was brought by Notice of Motion “Under Orders 5 rule 8 Order 10 rule 11 order 22 rule 2 and order 51 rule 3 of the civil procedure rules 2010 and section 1A and 3A of the Civil Procedure Act and all the enabling provision of the constitution of Kenya 2010.  The Application sought the following orders:

1.   THAT service of this Application be dispensed with in the first instance and the Application be certified as urgent to be heard on priority basis.

2.   THAT there be stay of execution of the warrants of attachment and sale in execution of the decree herein and in particular the Eshikhoni autioneers be restrained from selling the 16 livestock attached on 17/2/2017 pending the hearing and determination of this application inter partes.

3.   THAT this Honourable court be pleased to set aside the Ex-parte judgments entered herein against the Applicants together with the decree and all the consequential orders arising thereafter.

4.   THAT the Defendants/Applicants be granted leave to file their defence and this matter be heard on merit.

5.   THAT the costs of this application be in the cause.”.

6.           The Application is supported by the Affidavit of Syrilla Adonga Barasa and Stella Nyarotso Barasa, the Applicants.  The Application puts forward the following principal grounds:

“i.      THAT the Applicants were never served with summons to enter appearance in this suit as required by the law.

ii.       THAT no notice of entry of judgment was served upon the Defendant/Applicants herein, prior to the attachment of their property

iv.      THAT the Applicants only came to know of this matter on 17/2/17 in the morning when the auctioneers came and attached their livestock together with other people’s livestock

v.       THAT It’s in the interest of justice that there be stay of execution and the Defendants be afforded an opportunity to be heard in their Defence….”

7.           The thrust of that Application was abundantly clear.  The Applicants were asking (1) for a stay of execution, (2) setting aside of the ex-parte judgment and (3) an opportunity to defend the suit.

8.           The Objection Proceedings were brought by Collins Chetinde Barasa, a son of the Deceased.  His complaint is that he was not a party to the proceedings but his property was seized by the auctioneer and sold notwithstanding that he obtained a stay ex parte.  The Objector’s Application is brought by Notice of Motion.  It is brought under Order 22 Rule 25, Civil Procedure Rules, Section 3A of the Civil Procedure Act, Article 40 of the Constitution of Kenya and Section 22(2) 23 and 26 of the Auctioneers Act) and the provisions of the Auctioneers rules.”,  The Application applied for orders:

“1.     THAT there be a declaration that the attachment by Eshikoni auctioneers was unprocedural and aunlawful.

2.   THAT the plaintiff and Eshikoni auctioneers do restitute the defendant’s attached property.

3.   THAT costs of this application be provided for.”.

9.         The Application is supported by the Affidavit of Collins Chitinde Barasa and is grounded on the following:

a)   THAT the objector is not party to this suit and therefore not liable to settle the decree herein.

b)   THAT on 17/2/2017 auctioneers acting on the instructions of the plaintiff attached to the objector’s 6 head of cattle in purported execution of the decree herein

c)   THAT the auctioneers acted un-procedurally and unlawfully driven by malice.

d)   THAT the heads of cattle sold were well beyond the purported proceeds.

e)   THAT the delay in filing this application was occasioned by mis-advice and mis-direction at the registry.   

10.       In his Supporting Affidavit the Objector explained the background facts, that the Parties to the suit were his biological mother and two step-mothers.  That they are a big family but each one of them has a distinct compound and their own property.  He is a small scale farmer and businessman.  He lists his head of cattle as:

a)   White and brown bull valued at Kshs. 25,000/=

b)   White and brown cow valued at Kshs. 20,000/=

c)   Brown bull valued at Kshs. 15,000/=

d)   Black cow valued at Kshs. 20,000/=

e)   Black and white bull valued at Kshs.20,000/=

f)   White and brown sheep valued at Kshs. 4,000/=

He says that on 17^th February 2017 his wife telephoned him to inform him that “some people who had introduced themselves as agents of Eshikhoni auctioneers in the company of police officers had opened his gate and were loading his cattle on a lorry.  Exhibited is a document which he describes as a proclamation but the document is in fact, entitled “Notification of Sale of Movable Property”.

11.       The objector states that although he did not arrive home in time to see the Auctioneer’s agents he did travel to their offices in Bungoma, but they told him to seek redress from the Court.  He did so, he filed and Application and obtained an interim stay

The Proceedings in the main Suit

12.       The Plaintiff sued her two “co-wives”.  It is clear from the proceedings that they are now sadly widows.  This is very relevant because the Plaint alleged that the debt arose at a time which made it a liability on the Estate.

13.       The Fast Track Plaint was filed  around 14^th November 2016.  The attached Summons directs the Defendants that they have 15 days from the date of service to enter appearance.  The Affidavit of Service that was filed and considered by the Learned Trial Court it is sworn by a Stephen Neriman Munyaya who describes himself as “a process server of the Judiciary of kenya…” He depones that he served the two Defendants personally in a place called Ebubole Village at 2.00 pm on 14^th November  2016.  The Affidavit was sworn on 6^th December 2016.  On the next day the Plaintiff through her Advocates filed a Request for Judgment.   The Notice of Entry of Judgment is stamped as having been received by the Court on 16^th December 2016.

14.       The Learned Trial Magistrate formed the opinion that the Defendant’s were served and they simply failed to enter appearance and/or file any Defence.  He therefore entered judgment for the full amount claimed on KShs.112,000 (Kenya Shillings One hundred and twelve thousand).  The Proceedings show that the first entry was on 10^th December 2016.  The Learned SRM listed the matter for hearing of the Taxing bill of costs dated 16^th December 2016.  However, according to the Notice of Sale, the Decree was entered on 7^th December 2016.  The Record also shows that even as late as 6^th February 2017 the Bill of Costs had not been taxed.

15.       Consideration of the record would have expected the following steps (1)  An application for judgment in default of appearance, (2)  consideration of the affidavit of service for the Court to satisfy itself that the Defendants were served.  Thereafter, an essential step would be for the Court to hold a proof of debt.  The proceedings do not show the date when that was done.  The process seems to have moved immediately to execution after taxation of costs.

16.       Again in relation to the process of execution, this Court would have expected to see a decree extracted immediately after the proof of debt was completed and judgment entered for that sum.  That step is not clear from the Proceedings. Further, there should be an affidavit of service of the JUDGMENT AND DECREE.  Again that step does not appear to have been taken in these proceedings.

Execution and Notice of Sale

17.       The date of the Decree is recorded as 07/12/2016.  However, that was before costs had been assessed or taxed.  The Notice of Sale gives no indication of the date of default following service of the Decree.   The Notice of Sale Serial No. 1616 describes the Debtor as Stella Nyarotho Barasa.  Notice of Sale Serial No. 2659 lists the Debtor as Syrilla Adongo Barasa.  On each Notice of Sale the date of Sale is recorded clearly as 20^th February 2017.

18.       Again, in relation to the execution of the debt, this Court would have expected to see the following steps, (1)  A judgment order and/or decree being extracted., (2)  That order being served on the Debtors with notice of the number of days in which it should be paid for example 14 days or 28 days.  (3)  Such service would be confirmed by an Affidavit of Service together with a request or application for a warrant for execution.  At each step the Defendants should have been notified and at each step they should have had the opportunity to either pay the debt or contest their indebtedness.    That was not done.

19.       The Appellants state that (1)  They were not served with the Plaint.  The Learned Trial Court found that there was an affidavit on the record and that was the end of the matter.  Notwithstanding that the affidavit was being contradicted by two people who were corroborating each other, the Learned Trial Court did not look further.  The Appellants also state that the Affidavit contains contradictions.  It says the deponent knew the Defendants personally.  That is clearly untrue because even he says that they had to be pointed out to him.  Both statements cannot be true at the same time.  Further, the process server claims to be licenced yet he has not stated his licence number in his affidavit.  In the circumstances, the Learned Trial Magistrate erred in finding that there was incontrovertible proof that the Plaint and Summons had been served.

20.       Further, there is no record on the file that the Defendants were served with any notification that (1) judgment was entered in default and (2) that there would be a hearing of the proof.

21.       It appears that there was no hearing or consideration of the Plaint with a view to the Plaintiff proving her case.  Had there been such a consideration, the Learned Trial Court would have realised that the Plaintiff was alleging that the debt arose from a succession.  In the circumstances, the Court should have considered what the circumstances of the parties and also the status of that succession.  Was the Plaintiff an Administrator, if not, she did not have locus to act for the Estate as she alleges.  From the Record and the Ruling dismissing the Application to set aside the Judgment, the Learned Trial Court considered minutes of a family meeting.  Again, that document was not considered deeply enough.  For example, who was the author?  Who was producing the Minutes, were they one and the same?  Was the document verified by the other alleged participants?  If there had been a hearing to prove the debt, those matters would have been considered.

22.       The process of the execution also raising questions.  An auction includes three essential steps, proclamation, attachment and sale.  Each must be done on a different day

23.       When he heard the ex parte application, the Learned Trial Magistrate granted a stay, however in his Ruling he stated that any order against the Auctioneer was superseded by events.  However, the Notice of Sale records the date of sale as 20^th February 2017.  In the circumstances, when the stay was granted, the sale should have been arrested.   

19.       Order 22 rule 6 of the Civil Procedure Rules 2010 (CPR) , under the heading “Application for execution”, provides:

“Where the decree holder desires to execute it, he shall apply to the court which passed the decree, or, if the decree has been sent under the provisions hereinbefore contained to another court….. and applications under this rule shall be in accordance with Form No. 14 of Appendix A.

Provided that, where judgment in default of appearance or defence has been entered against a defendant, no execution by payment, attachement or evidection shall issue unless not less than 10 days notice of the entry of judgment has been given to him either at his address for service or served on him personally, a copy of that notice shall be filed with the first application for execution.”. (emphasis added)

20.       Therefore, on the issue of the process of execution by auctioneer of an order of the Court, the following steps must ensue:

(a)  A Judgment expressed in money terms, and

(b)  That the judgment debtor is given notification of the entry of judgment in other words the judgment debtor must know what they must do in order to comply with the order and/or avoid enforcement (CoK 2010 Articles 47 and 50, Order 22    rule 6),

(c)  If the judgment debtor(s) fail to comply with the order by making a payment, the judgment creditor can pursue the avenues of enforcement (Form No 14 under Order 22 rule 6).

(d) One avenue of enforcement is by auction.

(e)  Before an auctioneer is appointed and/or is empowered to act, the judgment creditor MUST obtain a warrant of execution.  The warrant of execution must include the amount of costs awarded to the judgment creditor following the process of taxation (Order 22 rule 7(h) and Form No. 14 point 8).

(f)  The Judgment Debtor(s) must be identified (Order 22 rule 7(i) Form 14 point 9).

21.       The Auctioneer’s Act (Cap 526) Section 21 sets out the rules regulating sales by auction.  These must be abided by for the auction to result in a legitimate sale.  The Section provides: 

Section 21.      Auction Sales

(1)   The date, time and place of every sale by auction shall be advertised in the prescribed manner and such sale shall take place on the date, at the time and at the place so advertised.

(2)   Where any movable and immovable property is put up for sale by auction in lots, each lot shall prima facie be deemed to be the subject of a separate contract of sale.

(3)   It shall be stated in the particulars or conditions of any sale by auction of any property whether such sale shall be subject to a reserve price or not or whether a right to bid is reserved….”.

Section 23 of the Auctioneers Act sets out the duties of an auctioneer.  It provides

Section 23 Duties of auctioneers

A licenced auctioneer shall-

(1)   At all times act in a manner befitting an officer of the court and shall ensure that his employees, servants or agents act in like manner;

(2)   Act in accordance with such rules as may be prescribed when repossessing, attaching, storing or selling any property pursuant to the provisions of any written law or contract;

(3)   Maintaining such books, accounts, records or other documents as may be presecreibed and furnish the same to the Board at such time and in such manner as may be prescribed….”.

22.       Section 26 of the Auctioneer’s Act gives the right to recover damages from an auctioneer.  It provides:

(1)  Subject to the provisions of any other written law, a person who suffers from any special or general damages by the unlawful or improper exercise of any power by a licensed auctioneer shall be entitled to recover any damages directly suffered by him from the auctioneer by action:

Provided that noting in this section shall-

(a)  Prevent the auctioneer from claiming contribution or indemnity from any other person;

(b)  Limit the damages recoverable under any other written law.”

23.       An Auctioneer is also bound by the Auctioneers Rules (LN 120/1977 Corr. No. 84/1997, L.N. 144/2009).  In the context of this case Rules 12 and 13 are relevant.  They provide:

12.     Movable other than perishable goods and livestock

(1)     Upon receipt of a court warrant or letter of instruction the auctioneer shall in case of movables other than goods of a perishable nature and livestock-

          (a) record the court warrant or latter of instruction in the register;

          (b) prepare a proclamation in Sale Form 2 of the Schedule indicating the value of specific items and the condition of each item, such inventory to be signed by the owner of the goods or an adult person residing or working at the premises where the goods are attached or repossessed, and where any person refuses to sign such inventory the auctioneer shall sign a certificate to that effect;

          (c) in writing, give to the owner of the goods seven days notice in Sale form 3 of the Schedule within which the owner may redeem the goods by payment of the amount set for in the court warrant or letter of instruction;

          (d) on expiry of the period of notice without payment and if the goods are not to be sold in situ, remove the goods to safe premises

for auction;

(e)     ensure safe storage of the goods pending their auction;

(f)      arrange advertisement within seven days from the date of removal of the goods and arrange sale not earlier than seven days after the first newspaper advertisement and not later than fourteen days thereafter;

(g)     not remove any goods under the proclamation until the expiry of the grace period…..”.

24.       Therefore aside from the Civil Procedure Rules 2010 which bindthem  Auctioneer too must follow the process laid down in the Auctioneer’s Act and the Rules made thereunder.  An essential step in this process is that the judgment debtor must have the opportunity to pay the debt and release his property.  The steps are:

(a)  Proclamation

(b)  Attachment

(c)  Auction by notice

Each step is distinct and each must take place on a separate date within the timescales set out.  The Act and the Rules expressly provide for the judgment debtor to be afforded an opportunity to pay the judgment debt.

25.       Moving onto the specific facts of this Appeal.  The proceedings named two Defendants and a consequence there were two Judgment Debtors, Syrilla Barasa and Stella Barasa.  In his Replying Affidavit to the Objector’s Application, the Auctioneer states that he was instructed on 8^th February 2017 and on the same day he attended the homes of the 2 Defendants and issued 7 days notices – The Two proclamations are addressed to the two Defendants.  The Auctioneer states that he was informed by the Judgment Creditor exactly where the two separate homes of the two Judgment Debtors were situated.  The date of the Decree is said to be 7^th December 2016. In the schedule of Movable property proclaimed is “Any other movable property of the J/D to be collected in expiry of seven days notice”.  That statement does not comply with the requirement that all goods proclaimed must be listed. The livestock seized from Syrilla Barasa were listed as:

i)          One blackish brown cow and its calf poor indigenous 14,000/=

ii)         One brown cow and its calf poor indigenous 16,000/=

iii)        One black and white male calf fair indigenous 6,000/=

iv)        One brown female calf fair indigenous   5,000/=

From Stella the Auctioneer proclaimed

v)         One brown cow and its calf  poor indigenous   15,000/=

vi)        One brown cow female calf fair indigenous      7,000/=

(6 head of cattle in total)

26.       The Notification of sale lists the property of Syrilla as

i)          One brown and while female calf indigenous  6,800/=

ii)         One black and white male calf indigenous  5,000/=

iii)        One brown and white male calf  indigenous   5,800/=

iv)        One brown cow and its calf                           14,000/=

v)         One blackish brown cow                                12,000/=

Meanwhile Stella was notified that the following would be sold on 20^th February 2017:

vi)        One brown cow and its calf

vii)       One brown cow and its calf

(Seven head of cattle in total)

27.       In his report to the Learned trial magistrate the Auctioneer listed the cattle sold as:

“a)       one brown and white female calf ………. 8,000/-

b)         one black and white male calf ……….…. 7,000/=

c)         one brown and white male calf ……….… 7,500/=

d)         one brown indegeniors cow and its calf …20,000/=

e)         one blackish and brown indegeniors cow…17,000/=

f)         one brown indegeniors cow and its calf …20,000/=

g)         one brown cow indegeniors cow and its calf …20,800/=

Since item (d) and item (f) appear to be the same, it may be only six livestock were sold.  It should be noted that the Auctioneer reported that he had to store the cattle for 3 days before the sale.  It is the Applicant’s case that 16 head of cattle were attached in 17^th February 2017 and the Ruling records that “…on 17/2/17 this court gave interim orders that the warrant of attachment and sale in execution of the decree herein be restrained from selling the 16 livestock attached on 17/2/17.”  However, notwithstanding the interim order and the notice that the sale would take place on 20^th February 2017 (less than 7 days after attachment).  The Learned Trial Magistrate held “It is therefore clear that the defendants/applicants were aware of the affidavit as earlier as 8/2/17 and even waited till 17/2/17 when their properties were attached.  They rushed to court after the attachment and issues as notification of sale and obtained an interim order  which was overtaken by event as when the plaintiff/applicant was served, the said cows had been sold in an auction…”.  That suggests that all 16 cows were sold on or very soon after the day they were attached.

Analysis and Conclusion

28.       From the foregoing, it is very clear that this dispute relates to a Judgment entered in default of appearance.  The Judgment and Decree appear to bear the same date, namely 7^th December 2016.  The Applicant/Appellants are the two Defendants in the Lower Court who say that the Court did not follow the correct procedure in issuing a decree and then the warrant of execution.  They further argued that the exercise of the warrant was unprocedural, irregular and therefore illegal.  The Third Applicant is the son of the one of the Parties and the step son of the other two.  His property neighbours that of the Defendants.  He came before the Lower Court complaining that his home had been broken into and his livestock taken.  The Auctioneer responded that he has “crawled out of the wood works at this late stage” and that he should have reported the matter to the Police.  The Learned Trial Magistrate found against the Applicants on all their prayers and made findings of fact, which are now appealed.

29.       Further, the proclamation states that the debtors declined to sign, but the Auctioneer has not prepared a certificate to that effect as required by the Rules.  The Notification of sale is dated 17^th February 2017 and it records that the sale by Auction will take place on 20^th February 2017 at 10.00 in Bungoma.  That period does not allow for Advertisement of the sale within 7-14 days as required by the Rules.

30.       Although, the Learned Trial Magistrate did grant an interim order to stop the sale on 17^th February (the day of attachment).  However, in his Ruling he decided that the Application (heard on 17^th February 2017) had been superseded by events.

31.       The first issue is:  Were the Defendants served with a Notice of Entry of Judgment?  The “Request for Judgement” is dated 6^th December 2016 and received by the Court on 7^th December 2016.   In his Ruling the Learned Trial Magistrate said “According to the affidavit of service, dated 6/12/16, by the process server … he indicated that he served the defendants/applicants on 14/11/16 and served them at 2.00 pm…  I have no reason why I should doubt the affidavit of the process server…  I do hold the view that indeed the defendants were served and slept on their rights”  It is clear from that pronouncement that the Learned Trial Magistrate misguided himself to confuse the requirement of service.  He applied Order 10 rule 2 instead of Order 22 Rule 6 which expressly provides for personal service of a default judgment..

32.       In relation to the execution of the Judgment was the correct procedure followed?.  The Learned Trial Magistrate extracted a decree on the same day as the request for judgment was received.  However, there was no direction for service of the Notice of ENTRY of Judgment served on the Defendants.  Similarly, there was no evidence that such notice had been served.  What the Learned Trial Magistrate found was that “the defendants were aware of their agreement on how to offset the debt left behind by their husband and the defendants’ know very well that they had not paid their shares….”.  The Learned Trial Magistrate did not hear any evidence relating to an agreement.  The Learned Trial Magistrate did not conduct a proof of debt and therefore he was not in a position to know whether or not the Defendants owned any money to the Plaintiff and if so, how much.  Further, the Learned Trial Magistrate misdirected himself in hearing a suit allegedly relating to the Estate of a Deceased person without satisfying himself that the person bringing the suit was in fact an administrator of the Estate.

33.       Further on the issue of execution.  The Decree being enforced was dated 7^th December 2016.  Yet the costs had not been taxed by that date.  Costs were not taxed until 6^th February 2017.  The Warrant of Execution was issued on 8^th February 2017.  That suggests there was a discrepancy between the decree and the warrant.  So what then should the judgment debtors pay, the amount in the decree or the amount in the warrant?  Its seems the warrant.  The Notice of Entry of Judgment is dated 7^th December 2016 It says “judgment was entered against you on 7^th day of December 2016 for the sum of Kshs.112,000/=  (Kenya Shillings One hundred and twelve thousand) plus costs and interest.  And you have up to 10 days from the date hereof to settle the amount due in full.”.  However, in the absence of a certificate of costs, how are the Defendants to know what sum they must pay to settle the debt?  In fact, the proclamation included a different figure namely KShs. 161,460/=  The Decree is for Shs. 112,000/=.  Costs awarded (in open Court on 6^th February 2017) (without issuing a certificate of costs) appear to be KShs.32,905/=, yet the Warrant of attachment shows taxed costs to be KShs.32,250/=.

34.       The Opposing Parties have filed Written Submissions.  The Appellants on 2^nd June 2021 and the Respondents on the same day.  They have been considered carefully in coming to the Court’s Decision.

35.       For the Reasons set out above, the Appeal must succeed with costs.  The Judgment in Default dated 7^th December 2016 was irregular and unenforceable and is set aside.  The Warrant of Execution issued on 8^th February 2017 are also set aside.  Notice of Judgment was not served and therefore, there was no act of default to justify issuing a warrant.  In addition, to the Execution being set aside as a consequence of the Appeal succeeding (the domino effect), the Warrant of Execution and the Proclamation are also separately and expressly set aside.  Execution was irregular and in breach of the Auctioneer’s Act and the Auctioneer’s Rules.  The Objector’s Suit against the Auctioneer is reinstated.

36.     In relation to the underlying action brought by Margaret Aseka Barasa for payment of a debt due to the Estate.  There is no evidence before either this Court or the Lower Court to show that she was duly authorised to act on behalf of the Estate.  In the circumstances, the Plaint stands to be dismissed for lack of locus.  However, this Court will give her the benefit of the doubt.  The Respondent/Plaintiff be and is hereby granted leave to file and serve an amended Plaint joining the Administrators of the Estate within 14 days of the date of delivery of this Judgment.  In the event that she fails to do so, the underlying suit to stand dismissed with costs.

DATED WEDNESDAY 9TH FEBRUARY 2021

It is so ordered,

FARAH S. AMIN

JUDGE

DELIVERED DATED AND SIGNED IN KAKAMEGA ONLINE USING MS-TEAMS ON 22ND DAY OF MARCH 2022