APPELLANT’S SUMMARY OF FACTS
3.The Appellant in his supporting affidavit deposed that he filed a bill of Costs dated 17/7/2020 which was placed before the Deputy Registrar/taxing master for assessment and that the taxing master/Deputy Registrar directed the parties to file their written submissions. The Appellant further stated that at the time of filing the bill of Costs, he attached his submissions. He stated that the Respondent filed their submissions together with a list of authorities and upon being served with the same, he filed supplementary submissions in response thereto.
4.The Appellant also deposed that the taxing master delivered his ruling on 29/10/2020 whereby he struck out his bill of costs. He said that he was dissatisfied with the Ruling and preferred this appeal.
5.He further stated that the taxing master erred in law in entertaining the Respondent’s prayers declaring his bill of Costs as illegal when there was no affidavit nor application. He said that the taxing master did not have jurisdiction to strike out his bill of Costs. He stated that the taxing master entertained a claim on submissions, an issue that was statutory time barred. He said that the taxing master failed to consider his submissions on record and also erred in law in entertaining the issue of irregularity and illegality of his bill when the respondent had not followed proper procedure in raising those issues of law.
6.In conclusion the appellant stated that as an Auctioneer, it is within his knowledge that the Auctioneer’s bill of costs is governed by the Auctioneers’ Rules and not any other irrelevant provisions of law.
Analysis And Decision
8.I have considered the Appellant’s/Applicant’s Chamber Summons application dated 3rd November 2020, the supporting affidavit and the grounds on the face of the said application. I have also considered the replying affidavit by the respondent in opposition to the said appeal and the rival submissions as well as the annexures to the two affidavits.
9.This appeal arises from the Ruling of the Deputy Officer/Taxing Officer delivered on 29th October,2020 striking out the Applicant’s/Appellant’s Bill of Costs dated 17th July 2020. The Applicant/Appellant was dissatisfied with the said Ruling and preferred the present appeal.
10.A brief background to this appeal is traced to the appellant’s supporting affidavit where he confirmed filing his bill of costs dated 17/7/2020 for taxation before the Deputy Registrar/Taxing Master. The Appellant further deposed that the Taxing Master/Deputy Registrar directed the parties to canvass the said bill of costs by way of written submissions. He stated that after complying with the directions given, the Deputy Registrar reserved his Ruling for 29/10/2020 where he struck out the bill of costs.
11.The Appellant set out twelve (12) grounds of appeal as follows;1.The learned Taxing Master erred in law and fact in declaring the Appellant’s bill of costs irregular and illegal when there was no formal application by the Respondent.2.The learned taxing master erred in law and fact in declaring the Appellant’s bill of costs was irregular and illegal when there was no basis in law.3.The learned trial taxing master erred in law and fact in striking out the Appellant’s bill of costs without considering the Appellant’s submissions on record.4.The learned trial taxing master erred in law and fact in entertaining the issue of the appellant’s bill of costs being irregular and illegal when he did not have jurisdiction to entertain the claim.5.The learned trial taxing master erred in law and fact in entertaining the issue of the appellant’s bill of costs being irregular and illegal when the issue was statutory time barred.6.That the learned trial taxing master erred in law and fact by being biased to the appellant hence arriving at a wrong decision.7.The learned trial taxing master erred in law and in fact by not considering the appellant’s submissions.8.The learned trial taxing master erred in law and fact in deviating in law and importing un-necessary provisions of law from other statutes when the Auctioneers Act and Rules are self-contained laws in matter involving Auctioneers’ Bill of Costs.9.The learned trial taxing master erred in law and fact when he contradicted himself as to whether the Respondent had followed the right procedure in challenging the Appellant’s bill of costs or not.10.The learned trial taxing master erred in law and fact when he struck out the appellant’s bill of costs without giving cogent reasons.11.The learned trial taxing master erred in law and fact by making a finding that the appellant did not comply with Auctioneers’ Rules.12.The learned trial taxing master erred in law and in fact by relying on the Respondent’s authorities cited which were irrelevant and bad in law.
12.From the extract of the record, it is clear that the Applicant/Appellant filed his bill of Costs dated 17/07/2020 for assessment before the Deputy Registrar/Taxing master. It is also clear from the extract that the said bill of costs was tabled before the taxing master for assessment who directed the parties to canvass the same by way of written submissions and rendered himself on 29/10/2020 by striking out the bill for being irregular unlawful and an abuse of the Court process.
13.One of the Appellant’s ground of appeal is that the learned trial taxing master lacked Jurisdiction to strike out his bill of costs. There is no doubt that the jurisdiction of the taxing master in assessing Auctioneers bill of costs is grounded in the Auctioneers Act, CAP. 526 and the Rules made thereunder.
14.Rule 55 of the Auctioneers Rules, 1997 spell out the powers of a taxing master in assessing the costs payable to an Auctioneer as follows;‘’55(1)Except as may be provided by any other written law or by contract the fees set out in the fourth schedule payable to the Auctioneer for the attachment, repossession and sale of moveable and immoveable property under Court warrants or letters of instructions shall be charged in accordance with these Rules.(2)Where a dispute arises as to the amount of fees payable to an Auctioneer-(a)in proceedings before the High Court; or(b)where the value of the property attached or repossessed would bring any proceedings in connection with it within the monetary jurisdiction of the High Court, a registrar as defined in the Civil Procedure Rules, may on the application of any party to the dispute assess the fee payable.(3)In any other case where a dispute arises as to the amount of fees payable to an Auctioneer a magistrate or the Board may, on the application of any party to the dispute, assess the fee payable.(4)Any appeal from a decision of a registrar or a magistrate or the Board under sub-rules (2) and (3) shall be to a judge in chambers.(5)The memorandum of appeal, by way of chamber Summons setting out the grounds of the appeal, shall be filed within 7 days of the decision of the registrar or magistrate.
15.Rule 12 of the Auctioneers Rules is also instructive on the mandate of the Auctioneer upon receipt of a Court warrant or letter of instruction and provides as follows;1.Upon receipt of a Court warrant or letter of instruction the auctioneer shall in the case of moveable other than goods of a perishable nature and livestock-a.Record the court warrant or letter of instruction in the register;b.Prepares 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 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 forth in the court warrant or letter of introduction.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 auctione.Ensure safe storage of the goods pending their auction….
16.Being conscious that his/her fees is begged on the Value of the goods attached and or proclaimed, an Auctioneer is under fiduciary duty and obligation to always act professionally and in good faith while carrying out his execution duties under the Auctioneers Act and the Rules made thereunder.
17.It is not in dispute that the Appellant/Applicant was assigned warrants of attachment and sale to levy execution against the Respondent herein. It is not also in dispute that the warrants indicated the decretal amount the respondent was required to pay before execution was levied in the sum of 418,521.05. It was therefore incumbent upon the appellant/Applicant to proclaim moveable goods equivalent or approximate to the decretal sum of Kshs. 418,521.05.
18.The Respondent deposed in his Replying affidavit that the appellant proclaimed goods worth six million, one hundred and eighty thousand (Kshs. 6, 180,000/=) as against the decretal or recoverable sum of four hundred and eighteen thousand five hundred and twenty-one shillings and zero point five cents (Kshs. 418,521.05). Those averments given on oath have not been challenged.
19.The Superior Courts have pronounced themselves where Auctioneers have carried out their mandate outside the Auctioneers Act and the Rules made thereunder. In the case of Lakeland Motors Limited V Harbhajan Singh SembI (1998) eKLR the Court of Appeal observed as follows regarding Rule 12(b) of the Auctioneers Rules;
20.There does not appear to be any provision in the Auctioneers Act, 1996 nor in the Auctioneers Rules, 1997 for dispensing with the foregoing Rule. Yet the respondent proceeded to execute the decree and physically attach the Applicants moveable goods without complying with the said rule. The flagrant disregard of the provisions of this rule smacks of gross irregularity in the Respondents execution process of the decree of the superior court in civil case NO. 227 of 1997. It would be an abuse of the process of this Court if we were to countenance such an execution. …. We think that on account of the respondent’s non-compliance with the law in the execution process of the decree as we have indicated in this ruling and to prevent abuse of the process of this Court, in the exercise of our inherent power under rule 1(3) of the aforesaid Rules the said execution process must and is hereby set aside….’’
21.The position was reiterated by the High Court in the Case of Barry Scutt & Another V Hitesh Jethwa & 2 OtherS (2000) KLR where it was held as follws;
22.The proclamation prepared by the 3rd defendant was in very general terms and appears to be based more on the 3rd defendant’s imagination rather than what he actually saw. It is for that reason, I think, that he fails to show in the proclamation the value of the specific items listed therein or to indicate the condition of each. The proclamation merely refers to furniture including sofa sets, dining tables, video cassete, video machine, T/V sets and any other attachable items. How the 3rd defendant was able to see and identify all those items of furniture without entering the house, only he can tell. Even then, the 3rd defendant did not attempt to satisfy the Auctioneers Rules with regard to the condition of the proclaimed goods for it was only with reference to the attached motor vehicle that he indicated the value. The condition of the other items was not indicated.
23.In the case of Lakeland Motors Limited v Harbhajan Singh Sembi, (Court of Appeal, Civil Application No. 24 of 1998) the Court of Appeal stated; -
24.I would adopt those words of the Court of Appeal in this matter. The Auctioneers Rules were not made in vain. They are supposed to be obeyed. It is plain that the 3rd defendant did not comply with Rule 12 of the Auctioneers Rules in connection with his proclamation of the plaintiff’s goods. The proclamation was therefore irregular and illegal and the plaintiffs were in those circumstances justified in coming to court to stop the attachment of their property on the basis of that irregular proclamation.’’
25.I agree entirely with the two findings and particularly the decision by the Court of Appeal which is binding on me.
26.The upshot of my finding is that this appeal is without merit and the same is hereby dismissed with costs.Orders accordingly.