1.This appeal emanates from the decision of the Auctioneers Licensing Board (hereafter the Board) on 22.09.2015 in the Auctioneers Licensing Board Disciplinary Cause No. 18 of 2015. The proceedings before the Board were commenced by way of a complaint filed on 23.02.2015 by Risper A. Obure the complainant before the Board (hereafter the Interested Party) against Joseph Kahoro Mundia t/a Upstate Kenya Auctioneers, the respondent before the Board (hereafter the Appellant).
2.The Interested Party had averred that she was the Human Resource Manager of Lavington Security Guards Limited who were the 2nd defendants in Nairobi Milimani CMCC No. 4118 of 2013 (hereafter the lower court suit). That the lower court on 05.08.2014 ordered stay to avert execution against her company, which order was duly served on the Appellant. That thereafter the order was extended by the court from time to time, with full knowledge of counsel acting for the plaintiff in the lower court suit. Her complaint was that the Appellant despite having knowledge of the subsisting court order and auctioneer rules breached the same by causing to be illegally attached in execution, the motor vehicle registration No. KBN 034K (hereafter said motor vehicle) belonging to Lavington Security Guards Limited.
3.That the actions put the said company to embarrassment, damage and financial loss amounting to Shs. 30,000/- daily which was claimed as compensation from the Appellant. It was further averred that, despite requests to release the said motor vehicle, the Appellant failed to comply. The complainant prayed that the Board administer disciplinary action against the Appellant including an order for compensation in respect of losses suffered consequent to the illegal attachment and detention of its motor vehicle.
4.The Appellant filed a replying affidavit on 11.03.2015. Therein, he asserted that he proceeded with execution upon instructions from the plaintiff’s advocate in the lower court suit, and advice that the interim orders had lapsed. That despite issuing a notification of sale for the motor vehicle pursuant to valid warrants of attachment and sale, he had subsequently released the said motor vehicle upon advice by the plaintiff’s advocates.
5.By its decision, the Board found in favour of the Interested Party and imposed a fine of Shs. 50,000/- against the Appellant while awarding costs in the sum of Shs. 30,000/- to the Interested Party to be paid within thirty days of the said decision. Aggrieved with the outcome, the Appellant preferred this appeal which is based on the following grounds that: -
6.The court directed that the appeal be canvassed by way of written submissions. Only the Appellant complied.
7.Addressing grounds 1 & 2 of the appeal, counsel for the Appellant faulted the Board’s finding to the effect that the motor vehicle attached was not one of the goods itemized in the proclamation notice yet the complaint before it did not reveal any such grievance. Counsel pointed out that the Interested Party’s grievance related to attachment during the subsistence of an order of stay of execution. The decision in HCC No. 383 of 2000 Charles Ambunya Khamala v The Auctioneers Licensing Board was cited in support of the submission that the Board based its decision on an extraneous matter not before it.
8.Concerning ground 3 of the appeal, counsel cited Rule 11 of the Schedule to the Auctioneers Act and the decision in Kakamega HCCA No. 20 of 2006 Manuel Ominde t/a Kuronya Auctioneers v Auctioneers Licensing Board to contend that to be valid, the decision of the Board ought to have been signed by the chairman and secretary of the Board. He asserted that only the secretary appended her signature to the Board’s decision that is the subject of the appeal. The court was urged to allow the appeal. Ground 4 of the appeal was apparently abandoned.
9.The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle –Vs- Associated Motor Boat Co.  EA 123 in the following terms: -
10.It is settled that an appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] 1 KAR 278. The appeal herein turns on the key question whether the Board’s finding was well founded and justified.
11.Pertinent to the determination of the appeal are the pleadings outlined above, which formed the basis of the parties’ respective cases before the Board. In Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank  2 KLR 91, the Court of Appeal stated in this regard that: -
12.The Appellant’s grouse against the Board is essentially three pronged. Namely, that the Board’s findings went against the pleadings and issues placed before it for determination; that the Board failed to accord the Appellant an opportunity to be heard; and the Board’s decision did not conform to the statutory requirements.
13.The Board after hearing the respective parties held as follows in its decision;
14.It is apposite to first deal with the Appellant’s challenge regarding the validity of the Board’s decision. Section 6 of the Auctioneers Act provides for meeting and procedure of the Auctioneers Board as follows: -
15.In addition, Rules 5, 6 and 11 of the Schedule to the Auctioneers Act provides that; -
16.A perusal of both the original and record of appeal reveals that the decision of the Board was duly executed on 22.09.2015 by the Acting Chairperson, Henry Ongicho and the Acting Secretary, Lillian R. Omondi respectively. I gather from the Appellant’s contention that his complaint relates to the notification by the Board Secretary dated 01.10.2015 made pursuant to Section 25 (1) of the Auctioneer Act. The foregoing provision provides that;-
17.Evidently, it is the duty of the Secretary of the Board who communicated with the Appellant to duly notify the parties of the decision of the tribunal for the purposes above. The letter by the Secretary of the Board is not the decision of the Board but a notification of the decision of the Board. Consequently, it is the court’s finding that the preliminary issue by the Respondent is not well taken.
18.Moving on to the substantive issues for determination, Rule 10 of the Schedule to the Auctioneers Act provides that:-
19.The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. The Court of Appeal in Mumbi M'Nabea v David M.Wachira  eKLR while discussing the standard of proof in civil liability claims in our jurisdiction had this to say:-
20.The duty of proving the averments contained in the complaint lay with the Interested Party. The matter proceeded to hearing before the Board on 22.09.2015. The Interested Party was represented by Mr. Masika. Reiterating the contents of the complaint, counsel stated that he had subsequent to the attachment complained of, written a protest letter to the Appellant and his instructing counsel on the matter, before returning to the court on 05.02.2015 to seek orders for the release of the attached motor vehicle. That the resultant order was served immediately and the motor vehicle in question was released on 22.02.2015.
21.The Appellant on his part placed reliance on his affidavit material in response to the complaint. He disputed disobeying the stay orderand blamed the instructing counsel for advising him that the orders of stay no longer subsisted. And that on the strength of the advice, he had applied for reissue of fresh warrants of attachment. In a brief rejoinder Mr. Masika emphasized that the Appellant was all along aware of the court order and that on 10.02.2015 the lower court had made an order for the release of the attached motor vehicle.
22.From the material presented before the Board, there was no dispute that pursuant to a decree of the lower court dated 09.07.2014, warrants of attachment dated 28.07.2014 were taken out against Lavington Security Guards Limited and thereafter a proclamation notice dated 31.07.2014 was served. Lavington Security Guards Limited subsequently moved the lower court by a motion dated 04.08.2014 seeking stay of execution. The court granted interim stay of execution and it appears that the interim orders were extended from time to time until on 28.11.2014 when they were extended indefinitely.
23.On 03.12.2014 the Appellant’s instructing counsel wrote a letter to the Appellant instructing him to proceed with execution on the purported fact that the interim orders in respect of the lower court suit had lapsed due to Lavington Security Guards Limited and or its counsel failing to attend court on 28.11.2014. The Appellant thereafter requested for a re-issue of fresh warrants of which were issued on 21.01.2015 and proceeded to proclaim and attach the subject vehicle registration number KBN 034K.. Lavington Security Guards Limited once more moved the court vide a motion dated 04.02.2015 seeking a further stay of execution of the warrants issued on 21.01.2015 and release of motor vehicle. The said motor vehicle was subsequently released on 25.02.2015. These events formed the basis of the complaint lodged before the Board.
24.The Appellant complains that the Board based its decision on a ground which was not raised in the complaint by the Interested Party and therefore denied him the right to be heard on that score. The finding was that “the aforesaid attached motor vehicle is not one of the goods itemized in the only proclamation attached to the affidavits presented by the Complainant and Auctioneer herein”. Undeniably, the Appellant took out fresh warrants of attachment on 21.01.2015 albeit allegedly on the erroneous advice of the instructing counsel’s letter dated 03.12.2014, the court having on 28.11.2014 indefinitely extended interim orders of stay.
25.Did the Board render determination on issues not canvassed in the Interested Party’s Complaint and thereby deny the Appellant a hearing? It is trite that civil cases are determined on issues raised in the pleadings and evidence of the parties thereon. The Court of Appeal in North Kisii Central Farmers Limited v Jeremiah Mayaka Ombui & 4 others  eKLR succinctly put it this way;-
26.The Court proceeded to state that:It was held in the case of Galaxy Paints Co. Limited v Falcon Guards Limited  2EA 385 that the issues for determination in a suit generally flowed from the pleadings and a trial court could only pronounce judgement on the issues arising from the pleadings or such issues as the parties framed for determination. It was further held that unless pleadings were amended parties were confined to their pleadings. This position had been taken in the earlier case of Gandy v Caspair  EACA 139 where it was held that unless pleadings were amended parties must be confined to those pleadings. It was further held that to decide against a party on matters which do not come within the issues arising from the dispute as pleaded clearly amounts to an error on the face of the record.In a judgement delivered recently by this Court on 14th February, 2014 in Romanus Joseph Ongombe & others v Cardinal Raphael Ochieng Otieno & others (Kisumu) Civil Appeal No. 20 of 2011 (ur) it was held that a judgement whose basis was on issues not founded on the pleadings was a nullity. This Court proceeded in that case to remit the matter to the High Court for retrial.The position flowing from all the previous judgements we have considered herein is that a judgement must be based on issues arising from the pleadings and the trial judge is not at liberty, as the trial judge in the case leading to this appeal did, to depart from the pleadings or the case before the court to write and deliver a judgement on issues that are not before the court. The difference would of course be where the parties introduce an unpleaded issue in the course of the trial and leave that issue for the court to decide. The court would in that event be entitled to make a necessary finding - See Odd Jobs Mubia EA 476 where it was held that a court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for a decision.The appellants complaint in this appeal is basically that the learned judge delivered a judgement on issues that were not pleaded and which were not before the court. We agree. The learned judge adopted a path of doing what she perceived to be “justice” to the parties but in the event she erred by departing from the general rule that issues for determination in a suit generally flowed from the pleadings and the learned judge could only pronounce judgment on the issues arising from the pleadings.” (Emphasis Added).
27.The Interested Party’s complaint before the Board stated inter alia that;-
28.The broad issue for determination by the Board was the legality of the attachment of the Interested Party’s vehicle during the subsistence of the stay orders. In considering that matter, the Board was well within its remit to consider the relevant circumstances surrounding the attachment including the Appellant’s actions concerning the taking out of fresh warrants of attachment during the subsistence of stay orders and of proclamation, the latter which is ordinarily an integral part of the attachment process. Indeed at the hearing before the Board, the Appellant was at pains to defend the validity of the proclamation notice allegedly re-issued on 23rd January 2015 in relation to the vehicle he subsequently attached.
29.To my mind therefore, the foregoing matters generally flowed from pleaded issues thrown up by the parties for determination by the Board. The court is not persuaded that in dealing with the question relating to proclamation of the subject vehicle, the Board entertained an extraneous matter in departure from the pleaded issues and thereby denied the Appellant the right to a hearing thereon. Ultimately, the court finds no merit in the canvassed grounds of appeal and will dismiss the appeal with no order as to costs.