' Background and introduction
1. By an application dated 26th February 2025 under Order 45 Rule 1 and Order 51 Rule 1, amongst others, the applicant seeks review, variation and/or modification of this Court’s ruling delivered on 7th February 2025. The applicant specifically prays that the Court consider and determine two issues which were inadvertently omitted in the earlier ruling, namely:
a) Whether the mode of service of the proclamations by the respondent was legally compliant.
b) Whether distress was necessary at the time of physical service of the proclamations.
2. In the alternative, the applicant prays that these two issues be remitted afresh to the Taxing Master for proper determination. The application is supported by the affidavit of MAKONGE FRANCIS, the counsel on record for the appellant, sworn on 26th February 2025 and opposed by the replying affidavit of BRIAN ELLY OPAR, the respondent, sworn on 15th November 2025.
Analysis and Determination
3. The first issue for determination is whether the applicant is entitled to the orders varying the ruling of 7th February 2025. Upon review of the ruling of the Taxing Master dated 15th July 2024, it is evident that the Taxing Master did pronounce herself on the legality (or otherwise) of the mode of service of the proclamation at pages 2 and 3 of her ruling. However, this Court did not address itself to that aspect in its ruling of 7th February 2025.
4. The provisions of Order 45 Rule 1 of the Civil Procedure Act are clear that a Court may review its own judgment on account of discovery of new and important matter or evidence, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. I find that the inadvertent omission by this Court to pronounce itself on the legality of service of the proclamation notice, and the consequential effect this has on the Bill of Costs, constitutes sufficient reason to warrant review of the ruling.
5. This would ensure an expedited determination as opposed to sending the matter back to a Taxing Master to determine, as there is in any case already a decision on the same.
6. It is important to emphasize that this review is not an appeal. The Court is not sitting to re‑evaluate the merits of its earlier decision but rather to correct an inadvertent omission which, once addressed, may alter the effect of its previous ruling. The distinction is critical, that an appeal challenges the correctness of a decision, whereas a review acknowledges that an important aspect was inadvertently not dealt with, and once considered, could change the outcome.
7. As stated, the applicant raises two issues:
a) Whether service of the proclamation via electronic mail conformed to Rule 12(1)(b) of the Auctioneers Rules, 1997.
b) Whether distress was lawfully and necessarily executable at the time of physical service, given that rent arrears had already been discharged.
8. The Taxing Master had taken the position that service of a proclamation via electronic mail was not expressly prohibited under the Auctioneers Rules and could therefore amount to proper service, provided that receipt was confirmed. While that reasoning acknowledges the growing acceptance of electronic communication in commercial practice, it does not fully address the specific requirements of Rule 12(1)(b) of the Auctioneers Rules, 1997.
9. From my reading and interpretation, Rule 12(1)(b) is explicit that once a proclamation is prepared in Sale Form 2 of the Schedule, it must include an inventory of the goods, which inventory is to be signed either by the owner of the goods or by an adult person residing or working at the premises where the goods are attached or repossessed. This requirement serves a substantive purpose. The signature confirms not only receipt of the proclamation but also acknowledgment of the existence, condition, and ownership of the goods being proclaimed.
10. Such verification cannot be achieved remotely. The act of proclamation is inherently physical as it involves the auctioneer attending at the premises, identifying the goods, recording their condition, and securing acknowledgment from the debtor or another responsible adult present.
11. The requirement of a signature at the premises also emphasizes that proclamation is not simply a notice but a physical act of seizure or intended seizure. Sending a document by email, even with proof of delivery, does not satisfy this statutory requirement because it bypasses the essential step of verifying ownership and condition of the goods in situ. Without physical service and verification, there is otherwise a real risk of proclaiming goods that do not exist, do not belong to the debtor, or whose condition cannot be ascertained.
12. The record shows that the proclamation was sent to the tenant via email on 1st May 2024, a public holiday, and physically served on 2nd May 2024 at 3:40pm. By then, rent arrears had already been cleared at 1:02pm on the same day. Distress was therefore unnecessary and overtaken by events. Once the arrears had been settled, the legal foundation for distress collapses, and any subsequent proclamation or attachment becomes unnecessary and without basis. In this case, the physical proclamation was effected after the arrears had been cleared, rendering the exercise futile.
13. Accordingly, the email transmission of 1st May 2024, even if considered, could not amount to lawful proclamation, both because it was sent on a public holiday when no physical verification could take place, and because proclamation by its very nature requires a physical act of attendance, verification, and acknowledgment at the premises.
14. The cumulative effect of this finding is that the respondent’s claim for costs premised on the proclamation and distress cannot stand. In any case and further to this, the allegedly proclaimed vehicles were not verified as belonging to the tenant. The only logbook produced by the respondent shows that the vehicle in question was registered to a third party, POINT AUTOMOBILES LIMITED.
15. I therefore find that service by email did not amount to lawful proclamation under Rule 12(1)(b), that distress was unnecessary as rent arrears had been settled before physical service and finally that the respondent is not entitled to commission or charges for repossession or investigations.
16. Part II of the Fourth Schedule to the Auctioneers Rules provides for auctioneers’ charges. Based on the findings above, I make the following findings on the taxation of the Bill of Costs:
i. Kshs. 1,000/= for receipt of court warrant/letter of instructions is payable.
ii. Kshs. 4,000/= for repossession is not payable, as no repossession occurred. At the very least the respondent would have been entitled to Kshs 4,000/= payable where no property is found, in light of the observations that I have already made, if this had been prayed for but it was not.
iii. Commission is not payable, as rent was settled before distress.
iv. Investigations on attachable assets are not payable, as no evidence was produced.
v. Disbursements on stationery and telephone of Kshs. 1,000/= are allowed.
Disposition
17. Accordingly, the application dated 26th February 2025 succeeds. The ruling of 7th February 2025 is hereby reviewed and varied to take into account the issues inadvertently omitted. The Bill of Costs is accordingly taxed at Kshs. 2,000/= only and each party shall bear their own costs of the application.
It is so ordered.
'
1. By an application dated 26th February 2025 under Order 45 Rule 1 and Order 51 Rule 1, amongst others, the applicant seeks review, variation and/or modification of this Court’s ruling delivered on 7th February 2025. The applicant specifically prays that the Court consider and determine two issues which were inadvertently omitted in the earlier ruling, namely:
a) Whether the mode of service of the proclamations by the respondent was legally compliant.
b) Whether distress was necessary at the time of physical service of the proclamations.
2. In the alternative, the applicant prays that these two issues be remitted afresh to the Taxing Master for proper determination. The application is supported by the affidavit of MAKONGE FRANCIS, the counsel on record for the appellant, sworn on 26th February 2025 and opposed by the replying affidavit of BRIAN ELLY OPAR, the respondent, sworn on 15th November 2025.
Analysis and Determination
3. The first issue for determination is whether the applicant is entitled to the orders varying the ruling of 7th February 2025. Upon review of the ruling of the Taxing Master dated 15th July 2024, it is evident that the Taxing Master did pronounce herself on the legality (or otherwise) of the mode of service of the proclamation at pages 2 and 3 of her ruling. However, this Court did not address itself to that aspect in its ruling of 7th February 2025.
4. The provisions of Order 45 Rule 1 of the Civil Procedure Act are clear that a Court may review its own judgment on account of discovery of new and important matter or evidence, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. I find that the inadvertent omission by this Court to pronounce itself on the legality of service of the proclamation notice, and the consequential effect this has on the Bill of Costs, constitutes sufficient reason to warrant review of the ruling.
5. This would ensure an expedited determination as opposed to sending the matter back to a Taxing Master to determine, as there is in any case already a decision on the same.
6. It is important to emphasize that this review is not an appeal. The Court is not sitting to re‑evaluate the merits of its earlier decision but rather to correct an inadvertent omission which, once addressed, may alter the effect of its previous ruling. The distinction is critical, that an appeal challenges the correctness of a decision, whereas a review acknowledges that an important aspect was inadvertently not dealt with, and once considered, could change the outcome.
7. As stated, the applicant raises two issues:
a) Whether service of the proclamation via electronic mail conformed to Rule 12(1)(b) of the Auctioneers Rules, 1997.
b) Whether distress was lawfully and necessarily executable at the time of physical service, given that rent arrears had already been discharged.
8. The Taxing Master had taken the position that service of a proclamation via electronic mail was not expressly prohibited under the Auctioneers Rules and could therefore amount to proper service, provided that receipt was confirmed. While that reasoning acknowledges the growing acceptance of electronic communication in commercial practice, it does not fully address the specific requirements of Rule 12(1)(b) of the Auctioneers Rules, 1997.
9. From my reading and interpretation, Rule 12(1)(b) is explicit that once a proclamation is prepared in Sale Form 2 of the Schedule, it must include an inventory of the goods, which inventory is to be signed either by the owner of the goods or by an adult person residing or working at the premises where the goods are attached or repossessed. This requirement serves a substantive purpose. The signature confirms not only receipt of the proclamation but also acknowledgment of the existence, condition, and ownership of the goods being proclaimed.
10. Such verification cannot be achieved remotely. The act of proclamation is inherently physical as it involves the auctioneer attending at the premises, identifying the goods, recording their condition, and securing acknowledgment from the debtor or another responsible adult present.
11. The requirement of a signature at the premises also emphasizes that proclamation is not simply a notice but a physical act of seizure or intended seizure. Sending a document by email, even with proof of delivery, does not satisfy this statutory requirement because it bypasses the essential step of verifying ownership and condition of the goods in situ. Without physical service and verification, there is otherwise a real risk of proclaiming goods that do not exist, do not belong to the debtor, or whose condition cannot be ascertained.
12. The record shows that the proclamation was sent to the tenant via email on 1st May 2024, a public holiday, and physically served on 2nd May 2024 at 3:40pm. By then, rent arrears had already been cleared at 1:02pm on the same day. Distress was therefore unnecessary and overtaken by events. Once the arrears had been settled, the legal foundation for distress collapses, and any subsequent proclamation or attachment becomes unnecessary and without basis. In this case, the physical proclamation was effected after the arrears had been cleared, rendering the exercise futile.
13. Accordingly, the email transmission of 1st May 2024, even if considered, could not amount to lawful proclamation, both because it was sent on a public holiday when no physical verification could take place, and because proclamation by its very nature requires a physical act of attendance, verification, and acknowledgment at the premises.
14. The cumulative effect of this finding is that the respondent’s claim for costs premised on the proclamation and distress cannot stand. In any case and further to this, the allegedly proclaimed vehicles were not verified as belonging to the tenant. The only logbook produced by the respondent shows that the vehicle in question was registered to a third party, POINT AUTOMOBILES LIMITED.
15. I therefore find that service by email did not amount to lawful proclamation under Rule 12(1)(b), that distress was unnecessary as rent arrears had been settled before physical service and finally that the respondent is not entitled to commission or charges for repossession or investigations.
16. Part II of the Fourth Schedule to the Auctioneers Rules provides for auctioneers’ charges. Based on the findings above, I make the following findings on the taxation of the Bill of Costs:
i. Kshs. 1,000/= for receipt of court warrant/letter of instructions is payable.
ii. Kshs. 4,000/= for repossession is not payable, as no repossession occurred. At the very least the respondent would have been entitled to Kshs 4,000/= payable where no property is found, in light of the observations that I have already made, if this had been prayed for but it was not.
iii. Commission is not payable, as rent was settled before distress.
iv. Investigations on attachable assets are not payable, as no evidence was produced.
v. Disbursements on stationery and telephone of Kshs. 1,000/= are allowed.
Disposition
17. Accordingly, the application dated 26th February 2025 succeeds. The ruling of 7th February 2025 is hereby reviewed and varied to take into account the issues inadvertently omitted. The Bill of Costs is accordingly taxed at Kshs. 2,000/= only and each party shall bear their own costs of the application.
It is so ordered.
'