REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. 126 OF 2024
BERNARD ANALO MAKATANI
T/A BENWILL AUCTIONEERS …………………………….…APPELLANT
VERSUS
AUCTIONEERS LICENSING BOARD…………….……...RESPONDENT
(Being an appeal from the Ruling of the Auctioneers Licensing Board conveyed by Hon. K. Cheruiyot (Board Secretary) in Disciplinary Cause No. 15 of 2021 dated 2nd November 2022)
JUDGEMENT
A. INTRODUCTION
1. The Auctioneers Licensing Board finding that it was the Appellant’s auctioneer’s license that was used to obtain warrants from the Court, which license is only released to the auctioneer; with no probable explanation as to how the Appellant’s license got into the hands of an imposter as alleged; the Appellant was ordered to give account of the proceeds of sale of KAV 331M and confirm to the board whether the warrants were returned to Court. Also, the Board held that is shall rendered further directions upon receiving the return of warrants and accounts of money received.
B. APPEAL
2. The Appellant has filed this appeal against the said Ruling on the following grounds:-
a. The Respondent erred in law and fact by entertaining the Complainant’s complaint which was improper and defective leading to miscarriage of justice
b. The Respondent erred in law and fact by concluding that the Appellant was assigned warrants of attachment and sale contrary to evidence on the record.
c. The Respondent erred in law and fact by finding that the Appellant had given out his license to third party when indeed what the third party was doing was purely masquerading the Appellant firm.
d. The Respondent erred in law and fact when it directed the Appellant to render an account for the execution he didn't carry out
e. The Respondent erred in law and fact when it delivered its decision dated 2nd November 2022, in total disregard of Section 11 made under the sixth schedule of Auctioneers Act 1996 revised 2012.
3. The Appellant prays that this Honourable Court quash the Respondent’s decision dated 2nd November 2022, with costs.
4. Vide Court directions dated 17th June 2025, the appeal herein was to be canvassed by way of written submissions. On my perusal of the Court record only the Appellant complied with the Court directives.
C. ANALYSIS AND DETERMINATION
5. This Court has considered original record, record of appeal and the submissions on record plus the authorities cited. The duty of this Court as a first appellate Court is to re-evaluate the evidence and draw its own conclusions, but always bearing in mind that it did not have the opportunity to see or hear the witnesses testify. See Peters v Sunday Post Limited (1958) EA 424; Selle and Another v Associated Motor Boat Co. Limited and Others (1968) EA 123 and Williams Diamonds Limited v Brown (1970) EA 1. The Court of Appeal in Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982)– 88) 1 KAR 278 stated that:
“A court of appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.”
6. Having set out the foregoing, I find that the five (5) grounds of appeal can be condensed into one key issues for consideration and determination, namely: whether the appeal herein is merited.
7. The actions of the auctioneer in this case, specifically the failure to render accounts of the proceeds of sale, clearly constitute misconduct within the meaning of the Act.
8. Section 24(5) of the Auctioneers Act provides that the Board may impose fines or other sanctions for proven misconduct. The Auctioneers Licensing Board, functioning as a tribunal, exercises quasi-judicial powers akin to those of subordinate courts. Under Article 169(1)(d) of the Constitution of Kenya, subordinate Courts include tribunals established by an Act of Parliament, such as the Auctioneers Act.
9. Therefore, the Boards actions in addressing non-compliance and disciplining auctioneers fall within its legitimate quasi-judicial mandate, validating its decisions and sanctions as being within its jurisdiction.
10. It is imperative at this juncture for this Court to highlight that after a Court of law issues a decree and the judgement holder proceeds with application for execution, the auctioneer, as an officer of the Court, must follow a strict legal procedure to enforce the execution of the decree. The key steps include obtaining the necessary Court warrants, issuing statutory notices to the debtor, and conducting a public auction if the debt is not settled. Key Steps for the Auctioneer are namely: Receive Court Warrant/Letter of Instruction, Record in the Register, Proclamation and Inventory (Movable Property), Notification of Sale (Immovable Property), Advertisement of Sale, Public Auction and Proceeds of Sale and Accounting.
11. From a consideration of the foregoing circumstances, it is apparent that the focal issue lies in whether the firm of Benwill Auctioneers were in receipt of the instruction. The Appellant herein alleges that he was not aware of the execution and did not know the person been referred as Gideon Hambwe, who allegedly was in receipt of the said instructions and noted that he was not his agent. He maintained that he was never in receipt of instructions on 25th January 2021 from the Complainant to proclaim the judgement debtor. Further, he alleged that he was never in receipt of any Court warrant for the case of Civil case No. 8506 of 2018, and only learnt about the same on 18th May 2021 after the Complainant reached out for a progress report.
12. According to Rule 5 and 6 of the Auctioneers Rules (Rev 2012), an auctioneer must have a valid warrant of attachment to lawfully seize property. Failure to comply with this requirement constitutes misconduct under the Act, justifying the Board's decision to penalize the auctioneer for their unauthorized seizure of the vehicle.
13. In this instant appeal, the record shows that the Appellant was seized with authority on 25th January 2021, when he was instructed by the Complainant to proclaim the judgement debtor to recover sums totaling to Kshs. 532, 601.60/= pursuant to the issued decree and warrants of attachment of moveable property in execution of decree for money issued in Milimani CMCC No. 8506 of 2018. The Appellant proceeded to proclaim the moveable properties of the judgement debtor on 27th January 2021, and issued the judgement debtor with an auctioneer bill of cost. Further, it is clear that all the moves and progresses by the Gideon Habwe were under the Appellant’s hand, direction and/or instruction.
14. The evidential burden of proof fell on the Appellant in the tribunal to establish that he was not versed with Complainant’s compliant and his firm was not in receipt of any instruction. Section 107 of the Evidence Act, Section 109 and Section 112 of the Evidence Act were dealt with in the case of Anne Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
15. At this juncture, it is only clear that the Appellant’s allegations are mere words that Could not be proved. It is clear that the firm was seized with authority and proceeded to do its duty as per the Auctioneers Act thus he could not allege that an imposter was using his license.
16. Pursuant to Section 24(5) of the Auctioneers Act, it is certain that the Respondent herein was vested with authority to order the rendering of account of the proceeds of sale of KAV 331M and confirm to the board whether the warrants were returned to Court. That the role of the Board is to adjudicate on professional misconduct under the Auctioneers Act.
17. In conclusion, the Auctioneers Licensing Board acted in within its jurisdiction by rendering of account of the proceeds of sale of KAV 331M and confirm to the board whether the warrants were returned to Court.
18. The Ruling dated 2nd November 2022 is therefore sustainable. The appeal is hereby dismissed. The said Ruling of the Auctioneers Licensing Board is upheld in its entirety.
19. The respondent is awarded costs of this appeal.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 18th day of December 2025.
Mwanaisha.S. Shariff
Judge
In the presence of:
APPELLANT
N/A FOR RESPONDENT
Peter Machoni COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. 126 OF 2024
BERNARD ANALO MAKATANI
T/A BENWILL AUCTIONEERS …………………………….…APPELLANT
VERSUS
AUCTIONEERS LICENSING BOARD…………….……...RESPONDENT
(Being an appeal from the Ruling of the Auctioneers Licensing Board conveyed by Hon. K. Cheruiyot (Board Secretary) in Disciplinary Cause No. 15 of 2021 dated 2nd November 2022)
JUDGEMENT
A. INTRODUCTION
1. The Auctioneers Licensing Board finding that it was the Appellant’s auctioneer’s license that was used to obtain warrants from the Court, which license is only released to the auctioneer; with no probable explanation as to how the Appellant’s license got into the hands of an imposter as alleged; the Appellant was ordered to give account of the proceeds of sale of KAV 331M and confirm to the board whether the warrants were returned to Court. Also, the Board held that is shall rendered further directions upon receiving the return of warrants and accounts of money received.
B. APPEAL
2. The Appellant has filed this appeal against the said Ruling on the following grounds:-
a. The Respondent erred in law and fact by entertaining the Complainant’s complaint which was improper and defective leading to miscarriage of justice
b. The Respondent erred in law and fact by concluding that the Appellant was assigned warrants of attachment and sale contrary to evidence on the record.
c. The Respondent erred in law and fact by finding that the Appellant had given out his license to third party when indeed what the third party was doing was purely masquerading the Appellant firm.
d. The Respondent erred in law and fact when it directed the Appellant to render an account for the execution he didn't carry out
e. The Respondent erred in law and fact when it delivered its decision dated 2nd November 2022, in total disregard of Section 11 made under the sixth schedule of Auctioneers Act 1996 revised 2012.
3. The Appellant prays that this Honourable Court quash the Respondent’s decision dated 2nd November 2022, with costs.
4. Vide Court directions dated 17th June 2025, the appeal herein was to be canvassed by way of written submissions. On my perusal of the Court record only the Appellant complied with the Court directives.
C. ANALYSIS AND DETERMINATION
5. This Court has considered original record, record of appeal and the submissions on record plus the authorities cited. The duty of this Court as a first appellate Court is to re-evaluate the evidence and draw its own conclusions, but always bearing in mind that it did not have the opportunity to see or hear the witnesses testify. See Peters v Sunday Post Limited (1958) EA 424; Selle and Another v Associated Motor Boat Co. Limited and Others (1968) EA 123 and Williams Diamonds Limited v Brown (1970) EA 1. The Court of Appeal in Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982)– 88) 1 KAR 278 stated that:
“A court of appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.”
6. Having set out the foregoing, I find that the five (5) grounds of appeal can be condensed into one key issues for consideration and determination, namely: whether the appeal herein is merited.
7. The actions of the auctioneer in this case, specifically the failure to render accounts of the proceeds of sale, clearly constitute misconduct within the meaning of the Act.
8. Section 24(5) of the Auctioneers Act provides that the Board may impose fines or other sanctions for proven misconduct. The Auctioneers Licensing Board, functioning as a tribunal, exercises quasi-judicial powers akin to those of subordinate courts. Under Article 169(1)(d) of the Constitution of Kenya, subordinate Courts include tribunals established by an Act of Parliament, such as the Auctioneers Act.
9. Therefore, the Boards actions in addressing non-compliance and disciplining auctioneers fall within its legitimate quasi-judicial mandate, validating its decisions and sanctions as being within its jurisdiction.
10. It is imperative at this juncture for this Court to highlight that after a Court of law issues a decree and the judgement holder proceeds with application for execution, the auctioneer, as an officer of the Court, must follow a strict legal procedure to enforce the execution of the decree. The key steps include obtaining the necessary Court warrants, issuing statutory notices to the debtor, and conducting a public auction if the debt is not settled. Key Steps for the Auctioneer are namely: Receive Court Warrant/Letter of Instruction, Record in the Register, Proclamation and Inventory (Movable Property), Notification of Sale (Immovable Property), Advertisement of Sale, Public Auction and Proceeds of Sale and Accounting.
11. From a consideration of the foregoing circumstances, it is apparent that the focal issue lies in whether the firm of Benwill Auctioneers were in receipt of the instruction. The Appellant herein alleges that he was not aware of the execution and did not know the person been referred as Gideon Hambwe, who allegedly was in receipt of the said instructions and noted that he was not his agent. He maintained that he was never in receipt of instructions on 25th January 2021 from the Complainant to proclaim the judgement debtor. Further, he alleged that he was never in receipt of any Court warrant for the case of Civil case No. 8506 of 2018, and only learnt about the same on 18th May 2021 after the Complainant reached out for a progress report.
12. According to Rule 5 and 6 of the Auctioneers Rules (Rev 2012), an auctioneer must have a valid warrant of attachment to lawfully seize property. Failure to comply with this requirement constitutes misconduct under the Act, justifying the Board's decision to penalize the auctioneer for their unauthorized seizure of the vehicle.
13. In this instant appeal, the record shows that the Appellant was seized with authority on 25th January 2021, when he was instructed by the Complainant to proclaim the judgement debtor to recover sums totaling to Kshs. 532, 601.60/= pursuant to the issued decree and warrants of attachment of moveable property in execution of decree for money issued in Milimani CMCC No. 8506 of 2018. The Appellant proceeded to proclaim the moveable properties of the judgement debtor on 27th January 2021, and issued the judgement debtor with an auctioneer bill of cost. Further, it is clear that all the moves and progresses by the Gideon Habwe were under the Appellant’s hand, direction and/or instruction.
14. The evidential burden of proof fell on the Appellant in the tribunal to establish that he was not versed with Complainant’s compliant and his firm was not in receipt of any instruction. Section 107 of the Evidence Act, Section 109 and Section 112 of the Evidence Act were dealt with in the case of Anne Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
15. At this juncture, it is only clear that the Appellant’s allegations are mere words that Could not be proved. It is clear that the firm was seized with authority and proceeded to do its duty as per the Auctioneers Act thus he could not allege that an imposter was using his license.
16. Pursuant to Section 24(5) of the Auctioneers Act, it is certain that the Respondent herein was vested with authority to order the rendering of account of the proceeds of sale of KAV 331M and confirm to the board whether the warrants were returned to Court. That the role of the Board is to adjudicate on professional misconduct under the Auctioneers Act.
17. In conclusion, the Auctioneers Licensing Board acted in within its jurisdiction by rendering of account of the proceeds of sale of KAV 331M and confirm to the board whether the warrants were returned to Court.
18. The Ruling dated 2nd November 2022 is therefore sustainable. The appeal is hereby dismissed. The said Ruling of the Auctioneers Licensing Board is upheld in its entirety.
19. The respondent is awarded costs of this appeal.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 18th day of December 2025.
Mwanaisha.S. Shariff
Judge
In the presence of:
APPELLANT
N/A FOR RESPONDENT
Peter Machoni COURT ASSISTANT