REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
HIGH COURT MISCELLANEOU APPLICATION N0. E083 OF 2023.
KENYA COOMERCIAL BANK LIMITED…………………..APPELLANT
VERSUS
DICKSON OMONDE T/A DIMONDE
AGENCIES AND AUCTIONEER……………………………RESPONDENT
(Being an appeal against the Ruling and of Hon. T.M. Olando-PM Bungoma dated and delivered on the 13th July 2023, in Bungoma Chief Magistrate’s Court Misc. Civil Application No. E001, E004-E0056 of 2023)
JUDGEMENT
A. INTRODUCTION
1. Vide a Memorandum of Appeal dated 9th August 2023, the Appellant herein filed this appeal preferring twenty-six (26) grounds of appeal and sought the following orders:
a. That the appeal be allowed and the ruling delivered on 13th July 2023, in respect of the Respondent’s Notice of Motion applications dated 4th January 2023 filed in MSC. Application No. E001, E004-E056 of 2023 and all consequent orders and/or decrees.
b. It be determined that the Respondent’s Notice of Motion application dated 4th January 2023, filed in MSC. Application E001, E004-E056 of 2023 be dismissed with costs.
c. The Respondent to pay the Appellant the costs of this appeal.
d. The Court to grant any further/other orders it may deem fit and just.
2. Vide Court directions, parties were ordered to canvass this appeal by way of written submissions. On my perusal of the Court record none of the parties complied with this directive.
B. APPELLANT’S SUBMISSIONS
3. According to the Appellant, the Respondent instituted Bungoma C.M.C.C Misc. Applications No. E001, E004-E056 of 2023 seeking assessment/taxation of his Bill of Costs with respect to distinct and separate instructions from the Appellant to levy recovery of debts owed by different individual debtors. In response, the Appellant lodged separate replying affidavits. The Appellant argues that its in opposition of the taxing master’s decision to arrogate itself jurisdiction in respect to the filed applications and assessing the Bill of Costs as the Appellant and the Respondent had a Service Agreement dated 1st January 2016 for provision of auctioneer services which the Respondent accepted vide its execution on 27th January 2016. Further, the Appellant argued that the Respondent was bound to the terms of the Service Legal Agreement in performance of its obligations and as per Schedule 1 of the Service Legal Agreement under table no, (i) 4 which indicated that the rates, payments and payment terms depicted that the Respondent was to receive 10% commission on any amount collected after repossession.
4. The Appellant submitted that the letters of instructions to the Respondents with regards to the 50 files were clear and concise that the Respondent’s fee notes for the repossession undertaken were to be accompanied by documents such as proclamation notice and coloured photographs of the respective debtor’s motor vehicles whether it was repossessed or not.
5. The Appellant argued that the Respondent was in breach of the Service Legal Agreement as it failed and/or neglected to furnish the Appellant with the requisite supporting documentation as evidence of repossession to enable verification of the Respondent’s claim. Further, with a view of verifying and paying the Respondent’s commission/fees for work undertaken the Appellant submitted that they wrote a correspondent to the Respondent dated 7th December 2021, highlighting that they had no pending invoices for the Respondent and that the Respondent was required to furnish the: invoices, repossession orders, proclamation notices, book forms and coloured photographs in respect to the subject motor vehicles to ensure verification of the Respondents claims, and the Respondent did not deny receipt of the said letter nor did it tender any response.
6. The Appellant submitted that the filing of the 50 Bill of Costs by the Respondent for recovery of its fees/commission was a circumvention of the Service Legal Agreement between Appellant and Respondent especially when there was no dispute between them. Further, the Appellant submitted that the Taxing Master lacked the requisite jurisdiction to tax the respective 50 bill of costs. The Appellant argued that the doctrine of privity of contract estopped the Respondent from filing the 50 Bill of Costs and/or seeking the Court’s redress especially when the Appellant was willing and ready to pay any outstanding fees that had bee verified in accordance to the terms of the Service Legal Agreement.
7. The Appellant Submitted that the instructions issued to the Respondent were diverse and from different branches of the Appellant with different debtors who were located in different locations, thuis this Court lacked the jurisdiction to consider and assess the Bill of Costs filed in Bungoma C.M.C.C Misc. Applications No. E001, E004-E056 of 2023.
8. The Appellant submitted that it tendered evidence to demonstrate that Bungoma C.M.C.C Misc. Applications No. E008, E020, E030, E034, E038, E039 and E049 of 2023 were res judicata as there were previous applications seeking assessment of similar Bill of Costs as in these applications, Bungoma C.M.C.C Misc. Applications No. 175 of 2020 and Bungoma C.M.C.C Misc. Applications No. 196 of 2020, and the same were duly assessed/taxed and the Respondent was duly paid his assessed/taxed amounts.
9. Finally, the Appellant submitted that Rule 7 of the Auctioneers Rules 1997 clearly demonstrate how the Respondent was required to pursue his costs and the Respondent failed to avail any evidence before the Taxing Master to indicate that the respective debtors in Bungoma C.M.C.C Misc. Applications No. E001, E004-E056 of 2023 could not be traced, lacked the goods upon which execution could be levied and that the Respondent had approached the respective debtors with a view of settling his fees/commission to no avail. Also, as the exception stipulates under Rule 55 of the Auctioneers Rules.
10. The Appellant placed reliance on the following case laws:
a. Kenya Commercial Bank vs Mulwa; Pamela Joy Oukot/a Sadique Enterprises Auctioneers (Civil Appeal 123 of 2021) (2023) KEHC 17303 (KLR).
b. Mwangi Keng’ara & Company Advocates vs Upward Scale Investment Company Limited & 2 Others (Miscellaneous Application 525 of 2013) (2025).
c. Amuga and Company Advocates vs Kisumu Concerete Products Limited (2021) eKLR.
d. National Bank of Kenya Ltd vs Pipelastic Samkolit (K) Ltd & another.
e. Pius Kimaiyo Langat vs Co-operative Bank of Kenya Ltd (2017) eKLR.
f. Peter Mbugua Kamoi & 5 Others vs Coffee Board of Kenya & Another (2015) eKLR.
g. Satya Bhama Gandhi vs Director of Public Prosecutions & 3 Others (2018) eKLR.
h. Co-operative Bank of Kenya Ltd vs Jeofrick N. Muinde t/a Kimu Auctioneers (2019) eKLR.
i. E Justin Austin & 2 Others vs Chon Jeum Suk Kim (2017) eKLR.
j. Tea Packers Company Ltd vs Hezron Getuma t/a Hegons Auctioneers (2021) eKLR.
11. In conclusion, the Appellant urged this Court to set aside the assessment of the Bill of Costs in Bungoma C.M.C.C Misc. Applications No. E001, E004-E056 of 2023 entirely and dismiss the same with costs to them.
C. RESPONDENT’S SUBMISSIONS
12. According to the Respondent, the issue of jurisdiction does not stand as per the dints of Section 6 of the Arbitration Act as Appellant herein entered appearance through its advocates on record and filed a response to the application, thus waving their remedies under Section 6 of the Arbitration Act. Further, the Respondent referring to the Service Legal Agreement argued that item 15.1 stipulates that matters of dispute resolution should be resolved amicably through dialogue by authorized representatives and it had nothing to do with arbitration and referred this Court to Rule 55 (3) of the Auctioneers Rules 1997.
13. The Respondent argued that the Appellant did not deny been in receipt of its demand and when it failed to remit the requisite payments, this prompted the Respondent herein to file the 50 bills of costs for taxation to recover its fees.
14. The Respondent posits that after receiving the 50 Bill of Costs the taxing master assigned a lead file and that there was no need for consolidation as alluded to by the Appellant and the Court used the lead file to make an order that ought to have applied to the rest of the files.
15. The Respondent submits that when the Appellant entered appearance in the trial Court, it subjected itself to the jurisdiction of the Court.
16. It is the respondent’s case that the services it rendered to the Appellant are still pending payment.
17. The Respondent impugns the Appellant’s arguments on Rule 7 of the Auctioneers Rules 1997, and maintains that there was no privy of contract between the Respondent and the debtors; as an agent of the Appellant, the Respondent could not sue the debtors for its fees and commission. (see Co-operative Bank of Kenya Ltd vs Jeofrick N. Muinde t/a Kimu Auctioneers (2019) eKLR.)
18. As regards the 10% commission prescribed by the Service Legal Agreement, the Respondent contends that the recovery of the same should have been on the amount collected on all the applications presented before the Court and that the 10% purported was only to apply further outsources debts which was to be construed as debt collections and/or repossessions or attachments. The Respondent insisted that the letters of instructions attached to every file was what the Respondent proclaimed and repossessed and not the debt collection. (the Respondent referred the Court to Section 1 of the Service Legal Agreement).
19. Placing reliance on Rule 55 of the Auctioneers Rules 1997, the Respondent urged this Court to not interfere with the holding of the trial Court and uphold the same.
D. ANALYSIS & DETERMINATION
20. I have carefully considered the Memorandum of Appeal, the affidavits on record, the parties’ rival written submissions and all the authorities cited. Having done so, Having considered the application I find that the following are the issues for determination;-
(a) Whether the learned magistrate had jurisdiction to entertain the Auctioneers Bill of Costs.
(b) Whether the Bill of Costs as drawn is in accordance with the Law and more specifically the Auctioneers Rules.
21. In the instant appeal, the appellant filed a memorandum of appeal dated 9th August 2023, on 9th August 2023, being an appeal from the ruling of Hon. T.M. Olando PM delivered on 13th July 2023, in Bungoma C.M.C.C Misc. Applications No. E001, E004-E056 of 2023.
22. Rule 55(5) of the Auctioneers Rules 1997 provides that;
“The Memorandum of Appeal, by way of Chamber Summons setting out the grounds of the appeal, shall be filed within 7 days of the decision of the Registrar or Magistrate.”
23. It is clear from the above provision and in particular Rule 55(5) that an appeal from a decision of a Registrar or a Magistrate or the Board under sub-rules (2) and (3) shall be to a judge in Chambers and that the Memorandum of Appeal, by way of Chamber Summons setting the grounds of the appeal shall be filed within 7 days of the decision of the Registrar or Magistrate. This provision clearly prescribes the procedure to be followed where one challenges the decision of the Taxing Officer. That is, the only prescribed way is through a memorandum of appeal by way of Chambers Summons. This procedure was termed mandatory by Court in Ezekiel Kiminza t/a Auto Land Auctioneers v Mistry Valji Naran Mulji [2017] eKLR.
24. Therefore, does that defect render this appeal fatally defective and irredeemable?
I disagree. In my humble view, want of form cannot be a ground for dismissal or striking out of an otherwise competent or meritorious appeal. This is because form does not go to the root or to the jurisdiction of the appeal or suit. In addition, failure to comply with the format provided for in rule 55(4) (5) of the Auctioneers Rules would not in any way occasion a miscarriage of justice to any party to this appeal.
25. Post 2010, Courts have invoked the supreme law of the land at Article 159(2)(d) of the Constitution which commands that justice shall be administered without undue regard to procedural technicalities. For that reason, want of form of the appeal which is filed by way of memorandum instead of a chamber summons, is not fatal to the appeal, although parties should always read the law and procedure for initiating proceedings before filing the same into court to avoid wasting precious judicial time of writing rulings on preliminary objections which could have been avoided and the time spent on rendering decisions on their merits. In addition, parties are reminded that where a specific procedure is prescribed by law, that procedure should be followed to the letter, to avoid objections to form.
26. On the issue of Jurisdiction, there is no doubt that Rule 55(2) provides that where a dispute arises a magistrate or the board may on the application of any party to the dispute assess the fees payable. The Rules clearly contemplate that a dispute ought to have arisen before the Auctioneer can file his/her Bill of costs. The onus in on the Auctioneer to show the Court that such a dispute has arisen. The existence of a dispute ought to be express or can be inferred from the documents before the Court. According to the Appellant.
27. From the Appellant’s point of view, Respondent as per the Service Legal Agreement and correspondence dated 7th December 2021, highlighted that they had no pending invoices for the Respondent and that the Respondent was required to furnish the: invoices, repossession orders, proclamation notices, book forms and coloured photographs in respect to the subject motor vehicles to ensure verification of the Respondents claims, and the Respondent did not deny receipt of the said letter nor did it tender any response. It was their argument that there was no dispute between them to warrant the Respondent filing of the respective 50 Bill of Cost. Also, the fact that the Respondent was served with several instructing letters from different branches of the Appellant herein. For these reasons, it is argued, the trial Court had no jurisdiction to hear the matter.
28. Despite stating that the Bank was made aware of the auctioneer’s costs, the Auctioneer has not annexed any invoice breaking down his to the Bank prior to serving the bank with the Auctioneers Bill of Costs. The trial Court was asked to determine that issue. The Respondent argues that following demand notices sent by the Respondent vide the firm of M/S J.B. Otsiula & Associate Advocates, dated 28th August 2021, the Appellant responded vide correspondence dated 7th December 2021, requesting invoices, repossession orders, proclamation notices, book forms and coloured photographs in respect to the subject motor vehicles to ensure verification of the Respondents claims, and the Respondent did not deny receipt of the said letter nor did it tender any response.
29. The Service Legal Agreement dated 1st January 2016, and duly executed by the parties under clause 15.1 on dispute resolution clearly depicts that any dispute arising from or under the agreement should be resolved amicably through dialogue by authorized representatives of both parties.
30. I am not convinced that the actions by the Respondent herein amounted to amicable dialogue by its authorized representatives. There is nothing to show that the Respondent gave dialogue a chance prior to filing the 50 Bill of Costs.
31. Therefore, from my reading of Rule 55(2) of the Auctioneer’s Rules, and it is clear that the filing of the Bill of Costs was premature.
32. The question that begs an answer is whether a magistrate’s Court in this case Bungoma Chief Magistrate’s Court, had jurisdiction to entertain the Respondents 50 Bill of Costs applications.
33. From the material before me the instructing bank was Kenya Commercial Bank, different branches. The debtor in question was based in Bungoma County. It is thus not clear why the Respondent proceeded to file all the 50 Bill of Costs at Bungoma Law Courts, in Bungoma County.
34. In my view, reference to a “magistrate” does not mean presenting the bill to any magistrate. An analogy must be drawn to other legal disputes. If the cause of action arose in Bungoma County, or the debtor, or the Respondent herein was in Bungoma, then the Court having geographical jurisdiction over Bungoma was simply one seized of jurisdiction to handle the matter as the letter of instruction was issued over a debtor that was located in Bungoma County. This is in line with the provisions of Section 15 of the Civil Procedure Act which provides for the place of filing a suit. This simply means in suits arising out of contract, the cause of action arises within the meaning of this section at any of the following places, namely:
i. the place where the contract was made;
ii. the place where the contract was to be performed or
iii. the performance thereof completed;
iv. the place wherein performance of the contract any money to which the suit relates was expressly or impliedly payable.
35. The provisions above are meant to streamline Court proceedings and avoid haphazard filing of claims. In this case, the Appellant clearly argued that the Respondent was in receipt of instructions from the Appellant’s several branches within Kenya, I find that the respective 50 Bill of Costs, if it was necessary in the first place, ought to have been filed either at the respective Courts where the instructions originated from e.g if it was Port Victoria Town then Port Victoria Law Courts would have that exercised jurisdiction over the same.
36. On the above, I find that the Court at Bungoma Chief Magistrate’s Court was not seized of the necessary geographical jurisdiction to entertain the respective 50 Bill of Costs in the first place.
37. In the celebrated case of The Owners of Motor Vehicle ‘Lilians’ vs Caltex Oil Kenya Limited (1989) eKLR the Court was clear on what effect Jurisdiction or lack thereof has on a Court. It held as follows;
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
38. The Appellant has referred to a Service Level Agreement which was denied by the Respondent as according to the Respondent they redress under the agreement was waived when they entered appearance in the trial Court. Annexed to the Replying Affidavit by the Appellant’s representative was a copy of the document duly executed by both sides marked ES-1. The Agreement was in force at the time of issuance of instructions on different dates by different branches of the Appellant. The Respondent is bound by it.
39. After considering the Appeal, the submissions filed, I find that this is a case where the Court is entitled to review the orders of the trial Court. This is based on the issue of jurisdiction of the Court to entertain the respective 50 Bill of Costs in the first place. Subsequently, I allow the appeal and direct that:-
a. The Respondent shall forward his/her fee note/invoice to the Appellant for consideration, bearing in mind the Appellant’s requirements to effect payment.
b. In the event of a dispute as envisaged under the Rules, the Respondent is advised to comply with Clause 15.1 of the Service Legal Agreement.
c. The Appellant shall have the costs of this Appeal
It is so ordered.
Delivered, Signed and Dated at Bungoma this 18th day of February 2026.
M. S. Shariff
Judge
IN THE PRESENCE OF:-
MR OKAKA FOR APPELLANT
N/A BY MUSUNDI LUKOYE FOR RESPONDENT
PETER MACHONI - COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
HIGH COURT MISCELLANEOU APPLICATION N0. E083 OF 2023.
KENYA COOMERCIAL BANK LIMITED…………………..APPELLANT
VERSUS
DICKSON OMONDE T/A DIMONDE
AGENCIES AND AUCTIONEER……………………………RESPONDENT
(Being an appeal against the Ruling and of Hon. T.M. Olando-PM Bungoma dated and delivered on the 13th July 2023, in Bungoma Chief Magistrate’s Court Misc. Civil Application No. E001, E004-E0056 of 2023)
JUDGEMENT
A. INTRODUCTION
1. Vide a Memorandum of Appeal dated 9th August 2023, the Appellant herein filed this appeal preferring twenty-six (26) grounds of appeal and sought the following orders:
a. That the appeal be allowed and the ruling delivered on 13th July 2023, in respect of the Respondent’s Notice of Motion applications dated 4th January 2023 filed in MSC. Application No. E001, E004-E056 of 2023 and all consequent orders and/or decrees.
b. It be determined that the Respondent’s Notice of Motion application dated 4th January 2023, filed in MSC. Application E001, E004-E056 of 2023 be dismissed with costs.
c. The Respondent to pay the Appellant the costs of this appeal.
d. The Court to grant any further/other orders it may deem fit and just.
2. Vide Court directions, parties were ordered to canvass this appeal by way of written submissions. On my perusal of the Court record none of the parties complied with this directive.
B. APPELLANT’S SUBMISSIONS
3. According to the Appellant, the Respondent instituted Bungoma C.M.C.C Misc. Applications No. E001, E004-E056 of 2023 seeking assessment/taxation of his Bill of Costs with respect to distinct and separate instructions from the Appellant to levy recovery of debts owed by different individual debtors. In response, the Appellant lodged separate replying affidavits. The Appellant argues that its in opposition of the taxing master’s decision to arrogate itself jurisdiction in respect to the filed applications and assessing the Bill of Costs as the Appellant and the Respondent had a Service Agreement dated 1st January 2016 for provision of auctioneer services which the Respondent accepted vide its execution on 27th January 2016. Further, the Appellant argued that the Respondent was bound to the terms of the Service Legal Agreement in performance of its obligations and as per Schedule 1 of the Service Legal Agreement under table no, (i) 4 which indicated that the rates, payments and payment terms depicted that the Respondent was to receive 10% commission on any amount collected after repossession.
4. The Appellant submitted that the letters of instructions to the Respondents with regards to the 50 files were clear and concise that the Respondent’s fee notes for the repossession undertaken were to be accompanied by documents such as proclamation notice and coloured photographs of the respective debtor’s motor vehicles whether it was repossessed or not.
5. The Appellant argued that the Respondent was in breach of the Service Legal Agreement as it failed and/or neglected to furnish the Appellant with the requisite supporting documentation as evidence of repossession to enable verification of the Respondent’s claim. Further, with a view of verifying and paying the Respondent’s commission/fees for work undertaken the Appellant submitted that they wrote a correspondent to the Respondent dated 7th December 2021, highlighting that they had no pending invoices for the Respondent and that the Respondent was required to furnish the: invoices, repossession orders, proclamation notices, book forms and coloured photographs in respect to the subject motor vehicles to ensure verification of the Respondents claims, and the Respondent did not deny receipt of the said letter nor did it tender any response.
6. The Appellant submitted that the filing of the 50 Bill of Costs by the Respondent for recovery of its fees/commission was a circumvention of the Service Legal Agreement between Appellant and Respondent especially when there was no dispute between them. Further, the Appellant submitted that the Taxing Master lacked the requisite jurisdiction to tax the respective 50 bill of costs. The Appellant argued that the doctrine of privity of contract estopped the Respondent from filing the 50 Bill of Costs and/or seeking the Court’s redress especially when the Appellant was willing and ready to pay any outstanding fees that had bee verified in accordance to the terms of the Service Legal Agreement.
7. The Appellant Submitted that the instructions issued to the Respondent were diverse and from different branches of the Appellant with different debtors who were located in different locations, thuis this Court lacked the jurisdiction to consider and assess the Bill of Costs filed in Bungoma C.M.C.C Misc. Applications No. E001, E004-E056 of 2023.
8. The Appellant submitted that it tendered evidence to demonstrate that Bungoma C.M.C.C Misc. Applications No. E008, E020, E030, E034, E038, E039 and E049 of 2023 were res judicata as there were previous applications seeking assessment of similar Bill of Costs as in these applications, Bungoma C.M.C.C Misc. Applications No. 175 of 2020 and Bungoma C.M.C.C Misc. Applications No. 196 of 2020, and the same were duly assessed/taxed and the Respondent was duly paid his assessed/taxed amounts.
9. Finally, the Appellant submitted that Rule 7 of the Auctioneers Rules 1997 clearly demonstrate how the Respondent was required to pursue his costs and the Respondent failed to avail any evidence before the Taxing Master to indicate that the respective debtors in Bungoma C.M.C.C Misc. Applications No. E001, E004-E056 of 2023 could not be traced, lacked the goods upon which execution could be levied and that the Respondent had approached the respective debtors with a view of settling his fees/commission to no avail. Also, as the exception stipulates under Rule 55 of the Auctioneers Rules.
10. The Appellant placed reliance on the following case laws:
a. Kenya Commercial Bank vs Mulwa; Pamela Joy Oukot/a Sadique Enterprises Auctioneers (Civil Appeal 123 of 2021) (2023) KEHC 17303 (KLR).
b. Mwangi Keng’ara & Company Advocates vs Upward Scale Investment Company Limited & 2 Others (Miscellaneous Application 525 of 2013) (2025).
c. Amuga and Company Advocates vs Kisumu Concerete Products Limited (2021) eKLR.
d. National Bank of Kenya Ltd vs Pipelastic Samkolit (K) Ltd & another.
e. Pius Kimaiyo Langat vs Co-operative Bank of Kenya Ltd (2017) eKLR.
f. Peter Mbugua Kamoi & 5 Others vs Coffee Board of Kenya & Another (2015) eKLR.
g. Satya Bhama Gandhi vs Director of Public Prosecutions & 3 Others (2018) eKLR.
h. Co-operative Bank of Kenya Ltd vs Jeofrick N. Muinde t/a Kimu Auctioneers (2019) eKLR.
i. E Justin Austin & 2 Others vs Chon Jeum Suk Kim (2017) eKLR.
j. Tea Packers Company Ltd vs Hezron Getuma t/a Hegons Auctioneers (2021) eKLR.
11. In conclusion, the Appellant urged this Court to set aside the assessment of the Bill of Costs in Bungoma C.M.C.C Misc. Applications No. E001, E004-E056 of 2023 entirely and dismiss the same with costs to them.
C. RESPONDENT’S SUBMISSIONS
12. According to the Respondent, the issue of jurisdiction does not stand as per the dints of Section 6 of the Arbitration Act as Appellant herein entered appearance through its advocates on record and filed a response to the application, thus waving their remedies under Section 6 of the Arbitration Act. Further, the Respondent referring to the Service Legal Agreement argued that item 15.1 stipulates that matters of dispute resolution should be resolved amicably through dialogue by authorized representatives and it had nothing to do with arbitration and referred this Court to Rule 55 (3) of the Auctioneers Rules 1997.
13. The Respondent argued that the Appellant did not deny been in receipt of its demand and when it failed to remit the requisite payments, this prompted the Respondent herein to file the 50 bills of costs for taxation to recover its fees.
14. The Respondent posits that after receiving the 50 Bill of Costs the taxing master assigned a lead file and that there was no need for consolidation as alluded to by the Appellant and the Court used the lead file to make an order that ought to have applied to the rest of the files.
15. The Respondent submits that when the Appellant entered appearance in the trial Court, it subjected itself to the jurisdiction of the Court.
16. It is the respondent’s case that the services it rendered to the Appellant are still pending payment.
17. The Respondent impugns the Appellant’s arguments on Rule 7 of the Auctioneers Rules 1997, and maintains that there was no privy of contract between the Respondent and the debtors; as an agent of the Appellant, the Respondent could not sue the debtors for its fees and commission. (see Co-operative Bank of Kenya Ltd vs Jeofrick N. Muinde t/a Kimu Auctioneers (2019) eKLR.)
18. As regards the 10% commission prescribed by the Service Legal Agreement, the Respondent contends that the recovery of the same should have been on the amount collected on all the applications presented before the Court and that the 10% purported was only to apply further outsources debts which was to be construed as debt collections and/or repossessions or attachments. The Respondent insisted that the letters of instructions attached to every file was what the Respondent proclaimed and repossessed and not the debt collection. (the Respondent referred the Court to Section 1 of the Service Legal Agreement).
19. Placing reliance on Rule 55 of the Auctioneers Rules 1997, the Respondent urged this Court to not interfere with the holding of the trial Court and uphold the same.
D. ANALYSIS & DETERMINATION
20. I have carefully considered the Memorandum of Appeal, the affidavits on record, the parties’ rival written submissions and all the authorities cited. Having done so, Having considered the application I find that the following are the issues for determination;-
(a) Whether the learned magistrate had jurisdiction to entertain the Auctioneers Bill of Costs.
(b) Whether the Bill of Costs as drawn is in accordance with the Law and more specifically the Auctioneers Rules.
21. In the instant appeal, the appellant filed a memorandum of appeal dated 9th August 2023, on 9th August 2023, being an appeal from the ruling of Hon. T.M. Olando PM delivered on 13th July 2023, in Bungoma C.M.C.C Misc. Applications No. E001, E004-E056 of 2023.
22. Rule 55(5) of the Auctioneers Rules 1997 provides that;
“The Memorandum of Appeal, by way of Chamber Summons setting out the grounds of the appeal, shall be filed within 7 days of the decision of the Registrar or Magistrate.”
23. It is clear from the above provision and in particular Rule 55(5) that an appeal from a decision of a Registrar or a Magistrate or the Board under sub-rules (2) and (3) shall be to a judge in Chambers and that the Memorandum of Appeal, by way of Chamber Summons setting the grounds of the appeal shall be filed within 7 days of the decision of the Registrar or Magistrate. This provision clearly prescribes the procedure to be followed where one challenges the decision of the Taxing Officer. That is, the only prescribed way is through a memorandum of appeal by way of Chambers Summons. This procedure was termed mandatory by Court in Ezekiel Kiminza t/a Auto Land Auctioneers v Mistry Valji Naran Mulji [2017] eKLR.
24. Therefore, does that defect render this appeal fatally defective and irredeemable?
I disagree. In my humble view, want of form cannot be a ground for dismissal or striking out of an otherwise competent or meritorious appeal. This is because form does not go to the root or to the jurisdiction of the appeal or suit. In addition, failure to comply with the format provided for in rule 55(4) (5) of the Auctioneers Rules would not in any way occasion a miscarriage of justice to any party to this appeal.
25. Post 2010, Courts have invoked the supreme law of the land at Article 159(2)(d) of the Constitution which commands that justice shall be administered without undue regard to procedural technicalities. For that reason, want of form of the appeal which is filed by way of memorandum instead of a chamber summons, is not fatal to the appeal, although parties should always read the law and procedure for initiating proceedings before filing the same into court to avoid wasting precious judicial time of writing rulings on preliminary objections which could have been avoided and the time spent on rendering decisions on their merits. In addition, parties are reminded that where a specific procedure is prescribed by law, that procedure should be followed to the letter, to avoid objections to form.
26. On the issue of Jurisdiction, there is no doubt that Rule 55(2) provides that where a dispute arises a magistrate or the board may on the application of any party to the dispute assess the fees payable. The Rules clearly contemplate that a dispute ought to have arisen before the Auctioneer can file his/her Bill of costs. The onus in on the Auctioneer to show the Court that such a dispute has arisen. The existence of a dispute ought to be express or can be inferred from the documents before the Court. According to the Appellant.
27. From the Appellant’s point of view, Respondent as per the Service Legal Agreement and correspondence dated 7th December 2021, highlighted that they had no pending invoices for the Respondent and that the Respondent was required to furnish the: invoices, repossession orders, proclamation notices, book forms and coloured photographs in respect to the subject motor vehicles to ensure verification of the Respondents claims, and the Respondent did not deny receipt of the said letter nor did it tender any response. It was their argument that there was no dispute between them to warrant the Respondent filing of the respective 50 Bill of Cost. Also, the fact that the Respondent was served with several instructing letters from different branches of the Appellant herein. For these reasons, it is argued, the trial Court had no jurisdiction to hear the matter.
28. Despite stating that the Bank was made aware of the auctioneer’s costs, the Auctioneer has not annexed any invoice breaking down his to the Bank prior to serving the bank with the Auctioneers Bill of Costs. The trial Court was asked to determine that issue. The Respondent argues that following demand notices sent by the Respondent vide the firm of M/S J.B. Otsiula & Associate Advocates, dated 28th August 2021, the Appellant responded vide correspondence dated 7th December 2021, requesting invoices, repossession orders, proclamation notices, book forms and coloured photographs in respect to the subject motor vehicles to ensure verification of the Respondents claims, and the Respondent did not deny receipt of the said letter nor did it tender any response.
29. The Service Legal Agreement dated 1st January 2016, and duly executed by the parties under clause 15.1 on dispute resolution clearly depicts that any dispute arising from or under the agreement should be resolved amicably through dialogue by authorized representatives of both parties.
30. I am not convinced that the actions by the Respondent herein amounted to amicable dialogue by its authorized representatives. There is nothing to show that the Respondent gave dialogue a chance prior to filing the 50 Bill of Costs.
31. Therefore, from my reading of Rule 55(2) of the Auctioneer’s Rules, and it is clear that the filing of the Bill of Costs was premature.
32. The question that begs an answer is whether a magistrate’s Court in this case Bungoma Chief Magistrate’s Court, had jurisdiction to entertain the Respondents 50 Bill of Costs applications.
33. From the material before me the instructing bank was Kenya Commercial Bank, different branches. The debtor in question was based in Bungoma County. It is thus not clear why the Respondent proceeded to file all the 50 Bill of Costs at Bungoma Law Courts, in Bungoma County.
34. In my view, reference to a “magistrate” does not mean presenting the bill to any magistrate. An analogy must be drawn to other legal disputes. If the cause of action arose in Bungoma County, or the debtor, or the Respondent herein was in Bungoma, then the Court having geographical jurisdiction over Bungoma was simply one seized of jurisdiction to handle the matter as the letter of instruction was issued over a debtor that was located in Bungoma County. This is in line with the provisions of Section 15 of the Civil Procedure Act which provides for the place of filing a suit. This simply means in suits arising out of contract, the cause of action arises within the meaning of this section at any of the following places, namely:
i. the place where the contract was made;
ii. the place where the contract was to be performed or
iii. the performance thereof completed;
iv. the place wherein performance of the contract any money to which the suit relates was expressly or impliedly payable.
35. The provisions above are meant to streamline Court proceedings and avoid haphazard filing of claims. In this case, the Appellant clearly argued that the Respondent was in receipt of instructions from the Appellant’s several branches within Kenya, I find that the respective 50 Bill of Costs, if it was necessary in the first place, ought to have been filed either at the respective Courts where the instructions originated from e.g if it was Port Victoria Town then Port Victoria Law Courts would have that exercised jurisdiction over the same.
36. On the above, I find that the Court at Bungoma Chief Magistrate’s Court was not seized of the necessary geographical jurisdiction to entertain the respective 50 Bill of Costs in the first place.
37. In the celebrated case of The Owners of Motor Vehicle ‘Lilians’ vs Caltex Oil Kenya Limited (1989) eKLR the Court was clear on what effect Jurisdiction or lack thereof has on a Court. It held as follows;
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
38. The Appellant has referred to a Service Level Agreement which was denied by the Respondent as according to the Respondent they redress under the agreement was waived when they entered appearance in the trial Court. Annexed to the Replying Affidavit by the Appellant’s representative was a copy of the document duly executed by both sides marked ES-1. The Agreement was in force at the time of issuance of instructions on different dates by different branches of the Appellant. The Respondent is bound by it.
39. After considering the Appeal, the submissions filed, I find that this is a case where the Court is entitled to review the orders of the trial Court. This is based on the issue of jurisdiction of the Court to entertain the respective 50 Bill of Costs in the first place. Subsequently, I allow the appeal and direct that:-
a. The Respondent shall forward his/her fee note/invoice to the Appellant for consideration, bearing in mind the Appellant’s requirements to effect payment.
b. In the event of a dispute as envisaged under the Rules, the Respondent is advised to comply with Clause 15.1 of the Service Legal Agreement.
c. The Appellant shall have the costs of this Appeal
It is so ordered.
Delivered, Signed and Dated at Bungoma this 18th day of February 2026.
M. S. Shariff
Judge
IN THE PRESENCE OF:-
MR OKAKA FOR APPELLANT
N/A BY MUSUNDI LUKOYE FOR RESPONDENT
PETER MACHONI - COURT ASSISTANT