DONALD MUHONDA ANDOLO VS PINNACLE DEVELOPERS LIMITED AND DOUGLAS OKEYO OLUOCH AND 2 Others

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIAO

CIVIL SUIT NO. 18 OF 2017

DONALD MUHONDA ANDOLO…………………APPLICANT/JUDGMENT DEBTOR

VERSUS

PINNACLE DEVELPERS LIMITED…………1^ST RESPONDENT/DECREE HOLDER

DOUGLAS OKEYO OLUOCH……………….2^ND RESPONDENT/DECREE HOLDER

BON-ARCH ASSOCIATIONS LIMITED……3^RD RESPONDENT/DECREE HOLDER

PETER OLUOCH OJWANG………………….4^TH RESPONDENT/DECREE HOLDER

RULING

1. By a Notice of Motion Application dated 28^th August 2023, the Applicant who is the Judgment Debtor has moved this Honourable Court under the various provisions of the law as shown on the face of this Application seeking the following orders:
2. Spent.
3. Spent.
4. That this Honourable Court be pleased to invalidate, set aside and discharge any and all execution proceedings by way of attachment and sale for want of compliance with the law and laid-down procedures.
5. That this Honourable Court be pleased to extend time for filing a reference to this Court against the decision of the Taxing Officer delivered on 16^th March 2022.
6. That this Honourable Court be pleased to order that in the alternative, the Applicant be allowed to settle of the decretal sum in the following instalments:
7. An initial upfront payment of Kenya Shillings Three Hundred Thousand (Kshs 300,000) forthwith and as a pre-condition for release of all the attached goods;
8. Kenya Shillings Fifty Thousand (Kshs 50,000) on or before the 30^th September 2023.
9. Kenya Shillings Fifty Thousand (Kshs 50,000) on or before the 30^th day of every subsequent month from October 2023 until payment in full.
10. That the costs of this application be borne by the 1^st and 2^nd Respondents.
11. To support this application, the Applicant has advanced grounds on the face of the application and in the Supporting Affidavit sworn on the 28^th August 2023. Mainly, the Application is contesting the manner the execution was carried out. He claims that Beafect Auctioneers stormed his house in the company of the police on the 16^th August 2023 and took away household goods; that he had not been served with proclamation or warrants of attachment and sale prior to the attachment of his goods; that he had not been served with any proclamation notice nor given notice to redeem the goods nor was his property valued by an independent valuer and that he was not served with a notice to show cause.
12. The Application was opposed through a Replying Affidavit sworn by the 2^nd Respondent on the 9^th October 2023. It is the case for the Respondents that the attached goods have been sold pursuant to the orders of the court and therefore prayer 2 of the application is spent; that prayer 3 is bad in law as the applicant rested for more than a year and a half after the Taxing Officer delivered his ruling; that the applicant has filed a Reference in the Court of Appeal which is yet to be determined and an Appeal challenging the costs awarded rendering this application sub-judice.
13. The Respondents stated that there are several warrants of attachment issued to the Applicant since 2022 and therefore the argument that the Respondents have not applied for execution of the decree is misguided; that the execution was carried out according to procedure and the law in that the auctioneers proclaimed the goods on 2^nd February 2023 and served proclamation notice; that following several attempts to access the premises of the Applicant without success, the auctioneers obtained orders from the court to enter the premises for purposes of execution.
14. It was further stated that the Applicant was granted adequate time to redeem the goods but he had failed to do so since the goods were attached on 16^th August 2023 and the sale was on 29^th August 2023; that he was served with the notification of sale prompting him to file this instant application seeking stay of execution; that the prayer to be allowed to settle the decree sum in installments is brought in bad faith and an act of contempt for he orders of this court and that this application is an admission by the Applicant that he did not redeem his goods on account of not being afforded an opportunity to do so rather than on account of being unable to redeem for lack of money.
15. The Applicant filed a Supplementary Affidavit sworn on the 20^th October 2023 in which he has reiterated his case that the execution was against the law.
16. Through an oral application by the Applicant, this court allowed cross-examination of the auctioneer on 17^th January 2024.  One Beatrice Nyambura who trades as Beafact Auctioneer took to the stand and was examined by Mr. Waweru, learned counsel for the Applicant and cross-examined by Mr. Okoth, learned counsel for the Respondents. The totality of her evidence was that she followed the law in the execution exercise.
17. Parties filed their respective submissions in support of their case. The Applicant’s submissions are dated 17^th February 2024 and those by the Respondents are dated 23rd day of April 2024. I have read the submissions and noted the contents. I need not replicate the same in this ruling.

Analysis and determination

1. The Applicant is accusing the Respondents of acting illegally in the purported execution of the decree. He claims that his household goods were removed unlawfully on 16^th August 2023 because he was not served with the proclamation; that there were no valid warrants of attachment and sale, and that the goods were undervalued.
2. The Applicant claims that the Auctioneer went to his residence on 16^th August and served him with notification of sate bearing the same date and an order to break into his residence and attach the goods. He stated that he was not served with proclamation or warrants of attachment and sale prior to the attachment of goods. He claimed that he was not allowed 7 days to redeem the goods. It is his case that the notification of sale is not genuine because it does not bear the court stamp and that the order of he court dated 8^th August 2023 refers to an auctioneer’s application dated 20^th March 2023 when there was no such application.
3. The case for the Respondents is that the goods have been sold following a lawful proclamation, attachment and notification of sale. They claim that the Application has filed for stay of execution in the Court of Appeal and therefore this matter is sub judice; that the Applicant took long to bring this application and that the auctioneer followed the law, proclaimed the goods on 2^nd March 2023 and served the Applicant with the warrants of attachment and proclamation. It is their case that eight (8) months have elapsed from the time goods were proclaimed and that the Applicant has sufficient time to redeem the goods. They stated, further, that the goods were proclaimed on 16^th August 2023 and sold on 29^th August 23023, fourteen days after.
4. According to the evidence of Beatrice Nguri, the owner of Beafect Auctioneers, the goods were proclaimed on 2^nd April 2023 and attached on 16^th August 2023, although the Respondents stated that proclamation was done on 2^nd March 2023.
5. I have seen copies of Notification of sale and the order of the court allowing the auctioneers to break in the Applicant’s premises. The Notification of sale is a copy. It bears no court stamp. It is dated 25^th August 2023. Beatrice testified that the order of court dated 8^th August 2023 allowed her to proclaim the goods but she had already proclaimed the goods. Although she claimed to have filed an application dated 20^th March 2023, she was not able to state when this application was heard. She also claimed that the application was amended on 20^th March 2023 and obtained the order. Yet the order attached to the Application does not refer to an amended application.
6. The Applicant denied that Beatrice went to his residence and stated that some people from Beafect Auctioneers visited his home with the police and served him with court orders and notification of sale.
7. What is clear from the pleadings, the evidence and submissions is that the Respondents did not produce copy of the Proclamation despite the evidence that the goods were proclaimed. The Applicant has also not availed copies of the warrants of attachment.
8. Rule 12 of the Auctioneers Rules 1997 provides that:

12. Movable other than perishable goods and livestock

(1) Upon receipt of a court warrant or letter of instruction the auctioneer shall in case of movables other than goods of a perishable nature and livestock—

(a) record the court warrant or letter of instruction in the register;

(b) prepare 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 such inventory the auctioneer shall 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 instruction;

(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 auction;

(e) ensure safe storage of the goods pending their auction;

(f) arrange advertisement within seven days from the date of removal of the goods and arrange sale not earlier than seven days after the first newspaper advertisement and not later than fourteen days thereafter;

(g) not remove any goods under the proclamation until the expiry of the grace period.

1. That provision is clear on the steps the auctioneer is required to follow to be within the law. Other than stating that a proclamation was done, there is not evidence to demonstrate that given the claim by the Applicant that this was not done.  Further, there is no evidence that the auctioneer gave the Applicant seven days’ notice in writing in Sale Form 3 of the Schedule within which to redeem the goods by payment of the amount.
2. The Court of Appeal in Court of Appeal in Lakeland Motors Limited v. Harbhajan Sigh Sembi [1998] eKLR the Court had this to say:

“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 [Rule 12 (1)(b)]. Yet the respondent proceeded to execute the decree and physically attach the applicant's movable goods without complying with the said rule. The flagrant disregard of the provisions of this rule smacks of gross irregularity in the respondent's 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…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… the costs occasioned by the irregular and wrongful attachment including the court broker's costs shall be borne by the respondent.”

1. The Respondents have not tendered evidence to demonstrate that they complied with Rul 12 of the Auctioneers Rules 1997. Although the Respondents claim that the attached goods were sold, there was no evidence availed to support that assertion. On a balance of probabilities, I find in favour of the Applicant to the effect that the Respondents failed to comply with the law in the execution proceedings.
2. Consequently, I allow the Notice of Motion dated 28^th August 2023 and grant prayer 3 of that application. For avoidance of doubt, all execution proceedings by way of attachment and sale of the attached goods is hereby invalidated, set aside and discharged. The Respondents are at liberty to execute the decree in accordance with the law.
3. The Applicant has not demonstrated why this court should grant prayer 4 of the application. The costs of the application shall be born by the 1^st and 2^nd Respondents. It is so ordered.

Dated, signed and delivered this 17^th day of January 2025