1.By chamber summons dated 28th January 2022 filed on 31st January 2022 brought pursuant to Rule 55(5) of the Auctioneers Rules 1997 and Section 3A of the Civil Procedure Act, the Applicant seeks the following orders:i)Spentii)Spentiii)Spentiv)This Honourable court be pleased to set aside the ruling delivered on 26th January 2022 awarding the Auctioneer Kshs 176,000v)This Honourable court be pleased to declare that the Auctioneer can only be paid fees on attachment, as per the Auctioneer’s Act upon an actual attachment.vi)This Honourable court be pleased to find that the learned trial magistrate erred in law and in fact by proceeding to wrongly apply the principle of stare decisisvii)This Honourable court be pleased to find that the learned trial magistrate erred in law and in fact by failing to apply the correct interpretation of Part II(4) of the Auctioneers Act No. 5 of 1996.viii)This Honourable court be pleased to find that the learned trial magistrate erred in law and in fact by to consider all the issues raised in the Appellant’s Replying affidavit as well as submissions thereby disregarding part of the submissions and response.ix)That the costs of this application be provided for.
2.The summons is premised on the grounds that in his ruling, the learned trial magistrate awarded auctioneers costs of Kshs 170,000 on attachment of Motor vehicles KDA 134V, KCP 016Z and KBX 874R; that the aforementioned motor vehicles were only proclaimed but were never attached and that the Auctioneer is not entitled in law to charge fees on work not done but expected to have been done at a future date.
3.The summons is supported by an affidavit sworn by Mohammed Ahmed on 28th January 2021 which he reiterates the grounds on the face of the application
4.The appeal was opposed vide a replying affidavit sworn on 7th February 2022 by the respondent where he contends that the appellant cannot change the settled law on a proclamation amounting to an attachment; that the fees was properly computed based on the Auctioneers schedule of charges which clearly graduates the fees based on percentages as it advances upwards based on the remaining value of the subject matter.
5.The appeal was canvassed by way of written submissions. The Appellant filed its submissions on 25th March 2022 whereas the respondent filed his on 28th March 2022.
Analysis and Determination
6.I have considered the chamber summons, the replying affidavit as well as the submissions filed on behalf of the both parties and the cited authorities and I find that issue that I am called to determine is whether proclamation amounts to an attachment.
7.From the rival authorities submitted by the parties herein, it is evident that there is no consensus by the courts on what attachment means in the auctioneers language. Some courts have held that proclamation involves attachment and as such the fees payable to an auctioneer after proclamation is made will include the fees for attachment under Item 4 of Part II of the Fourth Schedule of the Auctioneer Rules No. 5 of 1996 which provides for fees on attachment/repossession/distraint and expenses whereas other courts have taken the literal interpretation as to what attachment means that is, the actual seizure of the judgment debtor’s goods.
8.The Court of Appeal in the case of National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer  eKLR while dealing with an issue similar with this case held as follows;
9.In the instant case, the applicant has argued in his submissions that there was no actual attachment and as such the fees on attachment under item 4 is not applicable. On the other hand, the respondent argues that the fees on attachment is application since proclamation was made.
10.From the National Industrial Credit Bank Limited case (supra), it is apparent that the interpretation of, Sale Form 2 in Rule 12 as read with Rule 14 of the Auctioneers Rules and the contents of the prescribed form is that the proclamation of the movable goods is legally and effectively an attachment.
11.In light of the above, it is my finding that the trial court applied the correct principles in taxing the respondent’s bill of cost and particularly on Item 4 of Part II of the Fourth Schedule of the Auctioneer Rules No. 5 of 1996 and as such the chamber summons dated 28th January 2022 is unmeritorious and it is dismissed with no orders as to costs.