' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. CIVIL APPLICATION NO. E328 OF 2025
IN THE MATTER OF TAXATION OF AUCTIONEERS BILL OF COSTS
BETWEEN
HEZRON GETUMA ONSONGO
T/A HEGEONS AUCTIONEERS……..….AUCTIONEER/RESPONDENT
VERSUS
ABSA BANK KENYA LIMITED………….……………………….APPLICANT
RULING
ABSA Bank Kenya Limited, the Applicant, has filed the Notice of Motion (the Application) dated 26 th May 2025 under various provisions of the law as shown on the face of that application, seeking the following orders:
Spent.
The Honourable Court be pleased to find that the Applicant herein is not liable to pay the auctioneer’s fees incurred in the execution of the warrant of attachment and sale dated 27 th November 2024 having been taken when security for the decree had been deposited in court.
The auctioneer’s bill of costs dated 16 th January 2025 be struck out.
Costs of this application and the entire suit be awarded to the Applicant
The Applicant has backed the Application with the grounds found on the face of the application and in the Supporting Affidavit sworn by Simon Mwangi, the Applicant’s Legal Counsel, on 26 th May 2025.
In sum, the Applicant has stated that judgment was entered in favour of the Plaintiff in Milimani CMCC No. 7756 of 2019 for the sum of Kshs 3,000,000. That the Applicant was dissatisfied with the judgment and filed Milimani Civil Appeal No. E370 of 2021 at the High Court. That pending the determination of that appeal, an order for stay of execution of the judgment was issued on condition that the sum of Kshs 3,000,000 be deposited in a joint interest earning account in the names of the advocates of both parties. That the sum was deposited in a joint account No. 1289055890 at KCB Bank Kenya Ltd, Sarit Centre Branch.
The Applicant has stated, further, that the judgment amount was revised on appeal to Kshs 1,800,000 in a judgment delivered on 26 th July 2024. That the Respondent engaged the auctioneer to proclaim the Applicant despite the judgment sum having been deposited in a joint account, which action was irregular and unnecessary and that since the judgment sum was secured the costs arising should not be borne by the Applicant.
In opposition to the application, the Respondent filed Replying Affidavit sworn on the 16 th June 2025 in which it is deposed in summary that the Respondent received instructions to commence execution process; that he was issued with valid warrants of attachment and sale of the Applicant’s property; that his charges amounting to Kshs371,264 was not included in the funds deposited as security and that there was no order for stay of execution at the time of proclamation.
The Respondent has urged this court to dismiss the application which he terms as misconceived and incompetent.
The Applicant has filed a Further Affidavit in response to the Replying Affidavit by the Respondent. The Applicant has deposed that the Replying Affidavit bears falsehoods in that the alleged letter dated 4 th November 2024 is falsified, does not exist and was never sent. It is deposed that Milimani Civil Appeal No E370 of 2021 was not in court on 24 th October as stated in that letter but the matter was in court on 8 th October 2021 when stay of execution was extended for 30 days from 8 th October 2024. It is deposed that there was in force an order for stay of execution on 4 th November 2024 when demand for payment was made.
The Applicant has stated that the Respondent has failed to demonstrate that he was engaged to proclaim with the full knowledge that the judgment sum had been deposited in a joint account, therefore making the proclamation irregular and unnecessary since the decretal sum has already been secured and that the Respondent in Milimani HC Civil Appeal No. E370 of 2021 did not seek release of funds held in the joint account before engaging the auctioneer.
The Application was canvassed by way of oral submissions. I have considered rival submissions. Each party reiterated the contents of their respective pleadings.
Determination
The dispute before me, in sum, is that the Applicant is asking this court to excuse it from paying the auctioneer’s costs arising from the proclamation of its goods by the auctioneer. The Applicant is arguing that the decretal sum had been deposited in a joint interest earning account of the parties and therefore proclamation was not necessary.
On the other hand, the Auctioneer contents that whereas the decretal sum had been deposited in a joint account, a request had been made for release of the funds but the Applicant had declined to do so.
I have noted that the Applicant is challenging the letter dated 4 th November 2024 as falsified. To my mind the issue that arises for determination is whether the auctioneer was proper in proclaiming the Applicant’s property for money already secured in a joint interest earning account.
The Auctioneer claims that he acted properly because the Applicant has failed to release the funds despite a request to do so. I have noted that the letter relied on by the Auctioneer to support his claim that he was instructed to commence execution process is dated 4 th November 2024. Going by the record of the court, the stay of execution was extended by this court (Ouya, J) for 30 days from 8 th October 2024. My quick calculations show that by 4 th November 2024, that period of 30 days had not lapsed.
It is not denied that the decretal sum had been deposited in a joint interest earning account in the names of both counsel. It would appear to me that the instructions to commence execution proceedings was given before the expiry of the 30 days extension of stay of execution order. That order of the extension of stay of execution for another 30 days from 8 th October 2024 was issued in the presence of the Respondent.
After due consideration, I agree with the Applicant that the proclamation was done when security had been deposited in a joint account. It is apparent from the record of the court and the arguments by the parties that the instructions to commence execution proceedings on 4 th November 2024 when there existed an order for stay of execution and when security had been deposited in the bank was ill-advised. I am guided by Factory Guards Limited v Abel Vundi Kitungu [2015] eKLR in finding merit in the Notice of Motion dated 26 th May 2025.
This court is empowered to determine who shall be held liable in payment of costs as provided under Section 27 (1) of the Civil Procedure Act:
Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
In conclusion, I find for the Applicant and allow the Notice of Motion dated 26 th May 2025 in the following terms:
The Assessment of the Auctioneer’s fees as submitted in the Bill of Costs dated 16 th January 2025 is hereby struck out.
The Applicant is not liable to pay the Auctioneer’s fees incurred in the execution of the Warrants of Attachment and sale dated 27 th November 2024.
Costs of this Application shall be payable to the Applicant by the Respondent in the Civil Appeal No. E370 of 2021.
Orders shall issue accordingly.
Dated, signed and delivered this 2 nd September 2025.
S. N. MUTUKU
JUDGE
In the presence of:
1. Ms Cherotich for the Applicant
2. Mr. Juma for Mr. Kiplagat for Respondents
'
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. CIVIL APPLICATION NO. E328 OF 2025
IN THE MATTER OF TAXATION OF AUCTIONEERS BILL OF COSTS
BETWEEN
HEZRON GETUMA ONSONGO
T/A HEGEONS AUCTIONEERS……..….AUCTIONEER/RESPONDENT
VERSUS
ABSA BANK KENYA LIMITED………….……………………….APPLICANT
RULING
ABSA Bank Kenya Limited, the Applicant, has filed the Notice of Motion (the Application) dated 26 th May 2025 under various provisions of the law as shown on the face of that application, seeking the following orders:
Spent.
The Honourable Court be pleased to find that the Applicant herein is not liable to pay the auctioneer’s fees incurred in the execution of the warrant of attachment and sale dated 27 th November 2024 having been taken when security for the decree had been deposited in court.
The auctioneer’s bill of costs dated 16 th January 2025 be struck out.
Costs of this application and the entire suit be awarded to the Applicant
The Applicant has backed the Application with the grounds found on the face of the application and in the Supporting Affidavit sworn by Simon Mwangi, the Applicant’s Legal Counsel, on 26 th May 2025.
In sum, the Applicant has stated that judgment was entered in favour of the Plaintiff in Milimani CMCC No. 7756 of 2019 for the sum of Kshs 3,000,000. That the Applicant was dissatisfied with the judgment and filed Milimani Civil Appeal No. E370 of 2021 at the High Court. That pending the determination of that appeal, an order for stay of execution of the judgment was issued on condition that the sum of Kshs 3,000,000 be deposited in a joint interest earning account in the names of the advocates of both parties. That the sum was deposited in a joint account No. 1289055890 at KCB Bank Kenya Ltd, Sarit Centre Branch.
The Applicant has stated, further, that the judgment amount was revised on appeal to Kshs 1,800,000 in a judgment delivered on 26 th July 2024. That the Respondent engaged the auctioneer to proclaim the Applicant despite the judgment sum having been deposited in a joint account, which action was irregular and unnecessary and that since the judgment sum was secured the costs arising should not be borne by the Applicant.
In opposition to the application, the Respondent filed Replying Affidavit sworn on the 16 th June 2025 in which it is deposed in summary that the Respondent received instructions to commence execution process; that he was issued with valid warrants of attachment and sale of the Applicant’s property; that his charges amounting to Kshs371,264 was not included in the funds deposited as security and that there was no order for stay of execution at the time of proclamation.
The Respondent has urged this court to dismiss the application which he terms as misconceived and incompetent.
The Applicant has filed a Further Affidavit in response to the Replying Affidavit by the Respondent. The Applicant has deposed that the Replying Affidavit bears falsehoods in that the alleged letter dated 4 th November 2024 is falsified, does not exist and was never sent. It is deposed that Milimani Civil Appeal No E370 of 2021 was not in court on 24 th October as stated in that letter but the matter was in court on 8 th October 2021 when stay of execution was extended for 30 days from 8 th October 2024. It is deposed that there was in force an order for stay of execution on 4 th November 2024 when demand for payment was made.
The Applicant has stated that the Respondent has failed to demonstrate that he was engaged to proclaim with the full knowledge that the judgment sum had been deposited in a joint account, therefore making the proclamation irregular and unnecessary since the decretal sum has already been secured and that the Respondent in Milimani HC Civil Appeal No. E370 of 2021 did not seek release of funds held in the joint account before engaging the auctioneer.
The Application was canvassed by way of oral submissions. I have considered rival submissions. Each party reiterated the contents of their respective pleadings.
Determination
The dispute before me, in sum, is that the Applicant is asking this court to excuse it from paying the auctioneer’s costs arising from the proclamation of its goods by the auctioneer. The Applicant is arguing that the decretal sum had been deposited in a joint interest earning account of the parties and therefore proclamation was not necessary.
On the other hand, the Auctioneer contents that whereas the decretal sum had been deposited in a joint account, a request had been made for release of the funds but the Applicant had declined to do so.
I have noted that the Applicant is challenging the letter dated 4 th November 2024 as falsified. To my mind the issue that arises for determination is whether the auctioneer was proper in proclaiming the Applicant’s property for money already secured in a joint interest earning account.
The Auctioneer claims that he acted properly because the Applicant has failed to release the funds despite a request to do so. I have noted that the letter relied on by the Auctioneer to support his claim that he was instructed to commence execution process is dated 4 th November 2024. Going by the record of the court, the stay of execution was extended by this court (Ouya, J) for 30 days from 8 th October 2024. My quick calculations show that by 4 th November 2024, that period of 30 days had not lapsed.
It is not denied that the decretal sum had been deposited in a joint interest earning account in the names of both counsel. It would appear to me that the instructions to commence execution proceedings was given before the expiry of the 30 days extension of stay of execution order. That order of the extension of stay of execution for another 30 days from 8 th October 2024 was issued in the presence of the Respondent.
After due consideration, I agree with the Applicant that the proclamation was done when security had been deposited in a joint account. It is apparent from the record of the court and the arguments by the parties that the instructions to commence execution proceedings on 4 th November 2024 when there existed an order for stay of execution and when security had been deposited in the bank was ill-advised. I am guided by Factory Guards Limited v Abel Vundi Kitungu [2015] eKLR in finding merit in the Notice of Motion dated 26 th May 2025.
This court is empowered to determine who shall be held liable in payment of costs as provided under Section 27 (1) of the Civil Procedure Act:
Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
In conclusion, I find for the Applicant and allow the Notice of Motion dated 26 th May 2025 in the following terms:
The Assessment of the Auctioneer’s fees as submitted in the Bill of Costs dated 16 th January 2025 is hereby struck out.
The Applicant is not liable to pay the Auctioneer’s fees incurred in the execution of the Warrants of Attachment and sale dated 27 th November 2024.
Costs of this Application shall be payable to the Applicant by the Respondent in the Civil Appeal No. E370 of 2021.
Orders shall issue accordingly.
Dated, signed and delivered this 2 nd September 2025.
S. N. MUTUKU
JUDGE
In the presence of:
1. Ms Cherotich for the Applicant
2. Mr. Juma for Mr. Kiplagat for Respondents
'