KELLUM ALUHA CHANDAI VS CLERK COUNTY ASSEMBLY OF BUNGOMA & 3 OTHERS

(On the Notice of Motion  application dated 19^th April 2024 by the Applicant)

1. The ruling is on the application by way of Notice of Motion by the Applicant dated 19^th April 2024 and filed on 25^th April 2024 brought under the provisions of Sections 1A, 1B, 3A, and 3B of the Civil Procedure Act, seeking the orders: -
2. Spent.
3. Spent.
4. That the purported taxation by Dominion Auctioneers on 20^th February 2024 be set aside and the same be declared null and void
5. That costs of this application be provided for.
6. The application was premised on the grounds on the face of the application and the grounds in the supporting affidavit sworn by the applicant on 19^th April 2024 as follows: -
7. That the Applicant received a proclamation notice from Pawaba Auctioneers on 24^th February 2024 having attached his household goods, and movable assets at his home(KC 1-Proclamation).
8. He stated that the said proclamation indicated that there was a bill of Kshs. 52,500/- purportedly taxed in court by Dominion Auctioneers for costs and he alleges that he does not owe any costs to Mr. Tumbo trading as Dominion Auctioneers.
9. He states that the auctioneers who proclaimed against him and to whom he settled with them were Eshikhoni auctioneers.
10. He states that even after settling the costs with Eshikhoni, the Respondents tried to file another Bill of Costs and the same was dismissed causing the Respondent to appeal.
11. That the court directed that the bill be submitted to the Deputy Registrar for assessment which the Respondent did not do.
12. He stated that it is a fallacy for Pawaba and Dominion Auctioneers to purport to execute against him on a bill of costs irregularly and illegally filed against him.
13. He states that auctioneers are fond of multiplying bills with an intent to irregularly reap where they did not sow and if the orders herein sought are not granted he will suffer irreparable loss and undue hardship.
14. The application was opposed by the Respondent who filed a replying affidavit sworn by Samson Itonde Tumbo (licensed Auctioneer-Class “B”) on 31^st May 2024 and filed on 9^th June 2024 as follows:-
15. That the applicant's application is vexatious, malicious, of twisted facts, scandalous, and an abuse of the court process and ought to be dismissed with costs.
16. That the court on 8^th April 2022 issued warrants of attachment to Dominion Yards Auctioneers to recover the balance of Kshs. 76,922 taxed as costs due to Kennedy Shikuku trading as Eshikhoni Auctioneers (SIT-1-Warrants of Attachment) against the applicant.
17. That on 12^th April 2022, the said auctioneer served the applicant with a proclamation notice (SIT-2) in which the applicant and the then instructing advocates M/s Wamalwa & Co. Advocates and the then executing auctioneers were told to hold their horses.
18. That the Certificate of costs dated 8^th April 2022 was later settled and what remained outstanding was the costs of execution due to Dominion Yards Auctioneers (SIT-3-Certificate of Costs for Eshikhoni Auctioneers)
19. That the deponent filed his bill of costs dated 19^th July 2022 for taxation, which the applicant never responded to, and the court satisfied that there was proper service issued a ruling on 20^th September 2022 for a sum of Kshs. 122,832. Upon the Applicant's pleas, consent was entered for a reduced sum of Kssh. 70,000  and the consent was filed in court on 19^th October 2022.
20. That the applicant only paid Kshs. 20,000, leaving a balance of Kshs. 50,000, which the deponent instructed another auctioneer two years later to recover.
21. That the applicant on being proclaimed by the current auctioneers send Kshs. 20,000/- as part payment to the Deponent leaving a balance of Kshs. 30,000/-.
22. That the applicant's assertions that there was an alleged taxation of 20^th February 2024 on account of Dominion Yard's Bill of Costs is mischievous and the applicant seeks to obtain a stay for flimsy and imaginary reasons.
23. That the deponent never taxed any Bill of costs on 20^th February 2024 and the only bill of costs filed was that of 19^th July 2022 which had been taxed by the court on 20^th September 2022 at Kshs. 122,832.00.
24. That the applicant did not attach the Bill of costs and Certificate of costs he relies on to enable the deponent to respond and the application offends Rules 55(3) and (4) of the Auctioneers Rules 1997 which provide that an appeal from a decision of the Deputy Registrar ought to be by way of chamber summons and within 7 days.
25. The application is barred by time and the court cannot issue orders on non-existing proceedings.
26. That the amount now owing to the deponent is Kshs. 30,000/- as per the consent entered into by the parties.
27. That the present application is brought by the applicant with dirty hands and in bad faith and the only issue that can be set aside relating to Dominion Auctioneers would be the consent adopted on 19^th October 2022 relating to the Bill of Costs dated 19^th July 2022.

DIRECTIONS

1. When the matter came up for an interpartes hearing on 25^th June 2024, the applicant was a no-show and the Respondent stated that they would rely on their replying affidavit and asked the court to issue a ruling date. No submissions were filed in the application. 

The court having perused the pleadings by the parties was of the considered opinion that the issue placed before the court by the parties for determination of the application was whether the application was merited.

Whether the application is merited.

1. I have perused the record of the Court and of the Deputy Registrar of the Court to which the Court noted that the cause of action in this application arose from the costs awarded to the respondents in the suit against the applicant.
2. The costs were taxed and a certificate of taxation dated 9^th August 2021 was issued by the court DR Hon. E.N. Mwenda for Kshs. 291,435.00.
3. On the 30^th of August 2021  warrants of attachment were issued for the taxed amount to  Eshikoni Auctioneers.
4. The applicant in response filed an application under a certificate of urgency dated 13^th  October 2021  stating the costs were waived by the respondents upon his reinstatement to employment.
5. The court found no evidence that the costs were waived and vide its Ruling dated 6^th December 2021 dismissed the application paving the way for execution on the taxed costs.
6. Moving forward on the 8^th April 2022  warrants of attachment for balance of costs of Kshs. 79922  were issued to Eshikoni  Auctioneers for return on the 5^th of June 2023.  On the same date, warrants of attachment were also issued against the applicant to Dominion  Yards Auctioneers with Eshikoni Auctioneers listed as a decree holder though the court did not find any Decree issued to that effect.  The court however found that Dominion  Yard Auctioners filed a bill of costs dated 19^th July 2022 which was taxed on  10^th August 2022  for Kshs. 88,922.
7. The applicant challenged the proclamation of  bill of Kshs. 52,500 purportedly taxed by the court on the 20^th of February 2024. The applicant states it has settled all debts with the original auctioneer Eshikoni  Auctioneers.
8. I perused the DR record and found that vide a ruling dated   28^th  April 2023  Hon Odawo stated that vide consent adopted by the DR on  19^th October 2022  the costs were agreed at Kshs. 70,000 and it was stated how they would be settled.  The auctioneer was barred from taxing another bill of costs.
9. The court finds that this ruling has not been set aside. The court noted that the applicant had been harassed by the issuance of warrants of attachment to Dominion Yards at the same time as Eshikoni Auctioneer who had no decree in place to issue such instructions. The rules envisage that the Auctioneer will recover his charges during the auction. Rule 7 of the  Auctioneers Rules(1997) states:- ‘Payment of auctioner’s charges  a debtor  shall pay the charges  of auctioner unless-
10. The debtor cannot  be found; or
11. He had no good upon which execution  can be levied ; or
12. The sale proceeds are insufficient to cover the charges,  in which cases the creditor  shall pay  the charges or deficiency thereof.’'
13. The ruling by Hon. Odawo prohibited further taxation in the matter and further upheld the consent adopted as Order of the court.
14. For the foregoing reasons the application dated 19^th April 2024 is allowed. The Court holds that the purported taxation by Dominion Auctioneers on 20^th February 2024 is contrary to the Order by Hon. Odawo and is set aside. 
15. Each party is to bear its own costs in the application.
16. Obiter- To bring this file to closure the Applicant ought to pay the outstanding monies as per the consent dated 18^th October 2024 and adopted as  Court Order  DR  Hon Odawo on 19th October 2022.  The Respondent deponed that the balance is Kshs. 30,000/-. 
17. It is so Ordered.

DATED, SIGNED, AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 11^TH DAY OF JULY 2024.