REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
MISC.CIVIL APPLICATION NO. 17 OF 2025
JULUIS ONYANGO T/A AGUNJA AUCTIONEERS…………......................................................................................................................APPLICANT
VERSUS
FAULU MICROFINANCE BANK………………………….............................................................................................................................RESPONDENT
RULING
1. Before me for determination is the Applicant’s Chamber Summons dated 13th March 2025 and filed in Court on 14th March 2025, pursuant to Order 11(2) of the Advocates and Remuneration Order, seeking for the following Orders;
a. There be stay of execution for costs in Bungoma High Court Civil Appeal No. E019 of 2024-Faulu Microfinance Bank Limited versus Julius T/A Agunja Auctioneers pending the hearing and determination of this application.
b. The Honourable Court be pleased to set aside the taxing officer’s ruling delivered on 28th February 2025 relating to item 1 of the bill of costs dated 13th August 2024.
c. This Honourable Court do tax afresh the bill of costs relating to item 1 being instruction fees and getting up fees.
d. In the alternative to above prayer, the Honourable Court be pleased to order that item 1 of the Respondent’s bill of Costs dated 13th August 2024, be taxed afresh by another taxing master.
e. That costs of this application be provided for.
2. The Application is premised on the grounds as preferred on the face of the application and the Affidavit in Support sworn by Julius Onyango on his own behalf, wherein he averred that he is a licensed Court bailiff/auctioneer; that on 28th February 2025, the learned taxing master in Bungoma High Court Civil Appeal No. E019 of 2024, taxed the Respondent’s bill of costs dated 13th August 2024 at Kshs. 355,237.30/= and being dissatisfied with the said ruling seeks to have the impugned ruling and subject bill of costs dated 13th August 2025, to a fresh taxation specifically on item 1 of the said bill of costs. According to him, the taxing master erred in law and fact in failing to exercise discretion judiciously by taxing instruction fees at Kshs. 250,000/= and getting up fees at Kshs. 83,333.30/= despite finding that the appeal related to a Miscellaneous application whose value of subject matter could not be ascertained and failed to consider the Applicant’s written submissions.
3. The Respondent in opposition of this Application filed a Replying Affidavit deposed upon on 8th April 2025, by Fedrick Nyabuti, its legal officer. He averred that the Applicant’s application lacks merit and does not disclose any arguable cause to warrant the orders sought and that the same should be dismissed. Further, he averred that the Applicant’s application should have been pursuant to Schedule 6 of the Advocates Remuneration Order.
4. Counsel agreed to canvas the application by way of written submissions which were duly filed.
5. On perusal of the Application, the response thereto and the Respondent’s submissions of the parties the sole issue for determination are:
a. Whether the Appeal was filed out of time
b. Whether this Application was filed through a proper procedure
Whether this Application has been filed through a proper procedure
6. From the ruling of the taxing master, the gist is that before him it was an Auctioneers bill of costs which under the Auctioneers Act.
7. It is apparent that the Ruling in question was based on the Auctioneers Act and not the Advocates Act. Thus, the matter before me is not a reference under the Advocates Act but an appeal under the Auctioneers Act and Rules. Rule 55 of the Auctioneers Rules provide that;
“55.Fees and disbursements payable to an auctioneer
(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 movable and immovable 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 (Cap. 21, Sub. Leg.), 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 fees payable.
(4)An appeal from a decision of a registrar or a magistrate or the Board under subrules (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.”
8. It is clear from the above provisions and in particular Rule 55 (4) and (5) that an 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 and that the Memorandum of Appeal, by way of chamber summons setting the grounds of the appeal.
9. Subject to the law referred to by the Applicant herein, it is clear that the Applicant has not properly invoked the jurisdiction of this Court. In my view, Auctioneers Bill of Costs are brought under the Auctioneers Act and not the Advocates Act. No person who is not qualified as an advocate can purport to charge fees under the Advocates Act.
10. I thus hold that given that the Applicant approached this Court by way of chamber summons with grounds of appeals weaved therein but the law invoked by the Applicant herein was not proper making the whole application bad in law and/or defective which cannot benefit from the dints of Article 159 of the Constitution of Kenya 2010.
Whether the Appeal has been filed out of time
11. A perusal of the Court record reveals that the Applicant’s application is time-barred having been filed out of time. Rule 55 (5) of the Auctioneers Rules only allows a window of 7 days within which to file an appeal after the decision is made. In this instance the order been appeal against was delivered on 28th February 2025, the Chamber Summons herein were filed on 14th March 2025. In order for the prayers for re-assessment of ITEM 1 as sought by the Applicant to have merit, the appeal ought to have been filed within 7 days from the date of the decision, that is on or before 11th March 2025, as per the provisions of Rule 55 (4) and (5) of the Auctioneers Rules. The instant appeal is therefore incompetent. It has been filed outside the statutory time allowed without leave Court.
12. Jurisdiction is everything and without it, a Court cannot make one step for its decision will amount to a nullity. (See Owners of MV Lillian S Vs Caltex Oil (Kenya) Limited (1989) KLR. This Court lacks jurisdiction to entertain the appeal.
13. Premised upon the findings made hereinabove, the Applicant’s Chamber Summons dated 13th March 2025 and filed in Court on 14th March 2015, is hereby struck out with costs to the Respondent.
14. This file is marked as closed.
15. This ruling shall apply mutatis mutandis to the other 332 files.
It is so ordered.
Dated and delivered at Bungoma this 30th day of June 2025.
M.S. Shariff
Judge
In the presence of:
Maloba for the applicant
Agaba h/b for Ms Mureith for the Respondent
Peter Machoni – Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
MISC.CIVIL APPLICATION NO. 17 OF 2025
JULUIS ONYANGO T/A AGUNJA AUCTIONEERS…………......................................................................................................................APPLICANT
VERSUS
FAULU MICROFINANCE BANK………………………….............................................................................................................................RESPONDENT
RULING
1. Before me for determination is the Applicant’s Chamber Summons dated 13th March 2025 and filed in Court on 14th March 2025, pursuant to Order 11(2) of the Advocates and Remuneration Order, seeking for the following Orders;
a. There be stay of execution for costs in Bungoma High Court Civil Appeal No. E019 of 2024-Faulu Microfinance Bank Limited versus Julius T/A Agunja Auctioneers pending the hearing and determination of this application.
b. The Honourable Court be pleased to set aside the taxing officer’s ruling delivered on 28th February 2025 relating to item 1 of the bill of costs dated 13th August 2024.
c. This Honourable Court do tax afresh the bill of costs relating to item 1 being instruction fees and getting up fees.
d. In the alternative to above prayer, the Honourable Court be pleased to order that item 1 of the Respondent’s bill of Costs dated 13th August 2024, be taxed afresh by another taxing master.
e. That costs of this application be provided for.
2. The Application is premised on the grounds as preferred on the face of the application and the Affidavit in Support sworn by Julius Onyango on his own behalf, wherein he averred that he is a licensed Court bailiff/auctioneer; that on 28th February 2025, the learned taxing master in Bungoma High Court Civil Appeal No. E019 of 2024, taxed the Respondent’s bill of costs dated 13th August 2024 at Kshs. 355,237.30/= and being dissatisfied with the said ruling seeks to have the impugned ruling and subject bill of costs dated 13th August 2025, to a fresh taxation specifically on item 1 of the said bill of costs. According to him, the taxing master erred in law and fact in failing to exercise discretion judiciously by taxing instruction fees at Kshs. 250,000/= and getting up fees at Kshs. 83,333.30/= despite finding that the appeal related to a Miscellaneous application whose value of subject matter could not be ascertained and failed to consider the Applicant’s written submissions.
3. The Respondent in opposition of this Application filed a Replying Affidavit deposed upon on 8th April 2025, by Fedrick Nyabuti, its legal officer. He averred that the Applicant’s application lacks merit and does not disclose any arguable cause to warrant the orders sought and that the same should be dismissed. Further, he averred that the Applicant’s application should have been pursuant to Schedule 6 of the Advocates Remuneration Order.
4. Counsel agreed to canvas the application by way of written submissions which were duly filed.
5. On perusal of the Application, the response thereto and the Respondent’s submissions of the parties the sole issue for determination are:
a. Whether the Appeal was filed out of time
b. Whether this Application was filed through a proper procedure
Whether this Application has been filed through a proper procedure
6. From the ruling of the taxing master, the gist is that before him it was an Auctioneers bill of costs which under the Auctioneers Act.
7. It is apparent that the Ruling in question was based on the Auctioneers Act and not the Advocates Act. Thus, the matter before me is not a reference under the Advocates Act but an appeal under the Auctioneers Act and Rules. Rule 55 of the Auctioneers Rules provide that;
“55.Fees and disbursements payable to an auctioneer
(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 movable and immovable 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 (Cap. 21, Sub. Leg.), 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 fees payable.
(4)An appeal from a decision of a registrar or a magistrate or the Board under subrules (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.”
8. It is clear from the above provisions and in particular Rule 55 (4) and (5) that an 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 and that the Memorandum of Appeal, by way of chamber summons setting the grounds of the appeal.
9. Subject to the law referred to by the Applicant herein, it is clear that the Applicant has not properly invoked the jurisdiction of this Court. In my view, Auctioneers Bill of Costs are brought under the Auctioneers Act and not the Advocates Act. No person who is not qualified as an advocate can purport to charge fees under the Advocates Act.
10. I thus hold that given that the Applicant approached this Court by way of chamber summons with grounds of appeals weaved therein but the law invoked by the Applicant herein was not proper making the whole application bad in law and/or defective which cannot benefit from the dints of Article 159 of the Constitution of Kenya 2010.
Whether the Appeal has been filed out of time
11. A perusal of the Court record reveals that the Applicant’s application is time-barred having been filed out of time. Rule 55 (5) of the Auctioneers Rules only allows a window of 7 days within which to file an appeal after the decision is made. In this instance the order been appeal against was delivered on 28th February 2025, the Chamber Summons herein were filed on 14th March 2025. In order for the prayers for re-assessment of ITEM 1 as sought by the Applicant to have merit, the appeal ought to have been filed within 7 days from the date of the decision, that is on or before 11th March 2025, as per the provisions of Rule 55 (4) and (5) of the Auctioneers Rules. The instant appeal is therefore incompetent. It has been filed outside the statutory time allowed without leave Court.
12. Jurisdiction is everything and without it, a Court cannot make one step for its decision will amount to a nullity. (See Owners of MV Lillian S Vs Caltex Oil (Kenya) Limited (1989) KLR. This Court lacks jurisdiction to entertain the appeal.
13. Premised upon the findings made hereinabove, the Applicant’s Chamber Summons dated 13th March 2025 and filed in Court on 14th March 2015, is hereby struck out with costs to the Respondent.
14. This file is marked as closed.
15. This ruling shall apply mutatis mutandis to the other 332 files.
It is so ordered.
Dated and delivered at Bungoma this 30th day of June 2025.
M.S. Shariff
Judge
In the presence of:
Maloba for the applicant
Agaba h/b for Ms Mureith for the Respondent
Peter Machoni – Court Assistant