JEREMIAH K. MUCHENDU T/A ICON AUCTIONEERS VS MAYHOUSE LTD AND CLAROTECH SYSTEMS SOLUTIONS LTD

Introduction and Background:-

1. On 25^th June 2024, the court’s Deputy Registrar taxed and certified the Applicant’s/Respondent’s (“the Auctioneer”) Bill of Costs at Kshs.60,795.00/=. The Bill of Costs was in respect of the Respondent’s (‘the Landlord”) instructions to the Auctioneer to levy distress against the Applicant (“the Tenant”) so as to recover rent arrears amounting to Kshs.130,100.00/=. The Auctioneer began the process of executing the taxed costs against the Tenant which prompted the Tenant to file the Notice of Motion dated 15^th August 2024 that seeks to forestall the execution and set aside the exparte taxation proceedings.
2. This application is supported by the grounds on its face and the supporting affidavit of BARNABAS AKHUTU SELEIYIAN sworn on 15^th August 2024. It is opposed by the Auctioneer through his replying affidavit sworn on 4^th September 2024. The Tenant’s case is that it was never served with a Notice of Taxation of the Bill of Costs and that it was surprised that an entire taxation was done. It depones that the service to one “Vivian 680” by the process server and through the phone number 0727*****67 was improper as the former is stranger to it and that the Tenant is a sole proprietorship whose deponent states that his number is 0723****46.
3. The Tenant avers that the service via WhatsApp on a wrong phone number was improper and it was thus condemned unheard, contrary to the principles of natural justice and thus urges the court to set aside the ex parte taxation proceedings. In response, the Auctioneer depones that the Tenant is “being mean with the truth” as the said number 0727*****67 is what the Tenant gave in the subject proceedings; BPRT No. E284 of 2024 before the Business Premises Rent Tribunal. As such, the Auctioneer states that the Tenant was always aware of the Bill of Costs and the court’s ruling and that this application is an afterthought and is misleading. It contends that the warrants of attachment and sale issued by the court to its auctioneers is proper and the proclaimed goods are attachable in execution of the court’s decree. In any event, the Tenant urges that should the court find in favour of the Tenant, then there should be conditional orders for

the Tenant to deposit the decretal sum in court.

Analysis and Determination:-

1. Going through the application and the response, the main issue for the court’s determination is whether the court should set aside the taxation proceedings and consequent ruling for reasons that the Tenant had no notice of the same. Whereas the Tenant has stated that his phone number is 0723****46 and not 0727*****67 that was used to effect service of the Notice of Taxation and the ruling, the Tenant has not denied that the latter was the same number he declared in his pleadings before the Business Premises Rent Tribunal that gave rise to the taxation proceedings. A perusal of the said pleadings annexed by the Auctioneer indicate that indeed, the Tenant’s deponent declared that his phone number is 0727*****67. There is no evidence whatsoever that the Tenant changed this number and that the Auctioneer had notice of the said change.
2. I am therefore satisfied that the Notice of Taxation and the Ruling of the Deputy Registrar were duly served upon the Tenant through his known and declared phone number. This lends credence to the Auctioneer’s deposition that the Tenant’s refusal to appear in court was deliberate as it was aware of the Bill of Costs and later on, the Ruling of the Deputy Registrar. I therefore agree that its present application is an afterthought aimed at defeating the procedural and lawful execution of the certified costs.

Conclusion and Disposition:-

1. In the upshot, I find that the application dated 15^th August 2024 has no merit and the same is dismissed with costs assessed at Kshs.15,000.00/=. The interim orders staying execution are hereby discharged.

DATED, SIGNED AND DELIVERED VIRTUALLY at NAIROBI this 5^TH DAY OF FEBRUARY 2025

………………………………..

J.W.W. MONG’ARE

JUDGE

In the Presence of:-

1. N/A for the Auctioneer.
2. Ms. Monyangi for the Tenant.
3. N/A for the Landlord.
4. Amos - Court Assistant