REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL MISCELLANEOUS APPLICATION NO. E004 OF 2024
KENNEDY SHIKUKU T/A
ESHIKHONI AUCTIONEERS…………………………..............................................................................................…..APPEALLLANT
VERSUS
BRITAM GENERAL INSURANCE CO. LTD……….....................................................................................................……RESPONDENT
(Appeal from the Ruling and order of the Chief Magistrate’s Court of Kenya at Bungoma (Hon. T.M. Olando) dated 20th day of December, 2023 in CMCC No. E344 of 2023)
JUDGMENT
Background of the Appeal
1. Before the Court for determination is an appeal by the Appellant vide Chamber Summons dated 9th January 2024 and brought pursuant to Rule 55 Sub-rule 5 of the Auctioneers Rules 2017 seeking, in the main, that this Honourable Court be pleased to set aside the order of Honourable Tom Mark Olando in Bungoma CMCC No. E344 of 2023-Ali Ominde Shisia v Britam General Insurance and Kennedy Shiukuku T/A Eshikhoni Auctioneers made on 20th December 2023 on items e, f and g respectively, and order for the re-assessment of the Auctioneers Bill of Costs on items e, f and g respectively.
2. There is an alternative prayer that the Honourable Court be pleased to set aside the order of Honourable Tom Mark Olando in Bungoma CMCC No. E344 of 2023-Ali Ominde Shisia v Britam General Insurance and Kennedy Shiukuku T/A Eshikhoni Auctioneers made on 20th December 2023 on items e, f and g respectively and an order for the re-assessment and the same be substituted by an order of this Court re-assessing the bill afresh. The summons also prays that the Court makes an order providing for the costs.
3. The Chamber Summons enumerates grounds impugning the decision of the taxing master on taxation of an auctioneers’ bill. It is supported by the affidavit of Kennedy Shikuku sworn on 9th January 2024, in which he avers that the taxing officer’s award of Kshs. 25,186/- to the Appellant under item e as auctioneer fees contained charges as per the gazette rates, was haphazardly low and not compensatory. He claims that the taxing master erred in taxing item f of the bill at Kshs 87,840/- since the proclamation of the Respondent’s goods was done in Nairobi. He equally questions how the taxing master taxed item g in the sum of Kshs. 19,684/- against Kshs. 38,400/-that was sought by the Appellant.
4. The appellant faults the decision of the taxing master for the reasons that; he erred by taxing the Appellant’s auctioneer’s bill at Kshs. 154, 110/- when the correct costs was in fact Kshs. 162,810/-, failing to appreciate the fact that the correct yardstick for assessment of commission is the total value of the proclaimed property, failing to consider the Appellant’s submissions and authorities relied upon, failing to consider the taxed bill of costs based on the existing scale with regards to items e, f and g respectively, that the Appellant was deprived a total sum of Kshs. 417, 910/-; that the assessment in terms of items e, f and g was too low in the circumstances.
5. The appeal was unopposed as the Respondent did not file any response towards the same.
6. The appeal has been canvassed by way of written submissions and the Appellants herein relied on their trial Court’s written submissions and further written submissions.
7. The Appellants submissions were grounded on Rule 55 Sub-rule 3 of the Auctioneers Rules 2012 which stipulates that in any other case where a dispute arises as to the amount of fees payable to an auctioneer a magistrate or the Board may, on the application of any party to the dispute, assess the fees payable. With respect to item e, the Appellant submitted that under paragraph 4 part ii of the Auctioneers Rules stipulate that the fees on attachment/repossession/distrainment and expenses to be charged by the auctioneers and according to the Appellant the commission is netted from the total value of the judgement debtor’s proclaimed property. He posits that in this case, the value of the property in the proclamation was Kshs. 12,000,000/= wherefore the auctioneer was per paragraph 4 expected to charge 2% of the total value of the said proclaimed property which in this case was above Kshs. 100,000/- making the Appellant’s fees to be Kshs. 240,000/=. He relied on the case of Nairobi Civil Appeal No. 195 of 2004.
8. On item f, the Appellant submitted that the same is provided for under paragraph 11 of the fees schedule under the Auctioneers rules 2012 that provides that travelling expenses as published by automobile association from time to time be allowed at three times the scale of auto mobile association. He submitted that the proclamation was done in Nairobi and that he travelled all the way from Bungoma to Nairobi. He submitted that he covered a distance of 600 Kms and a similar distance on his way back. He submitted that multiplication of 600 Kms multiplied 2 which is the number of trips multiplied also by 3 which is the number of times provided under the 4th schedule multiplied also by Kshs. 73.20/- which is the current rates as provided by the Kenya auto mobile association bring the total amount to Kshs. 263,520/-.
9. On part g, the Appellant submitted that V.A.T is made on total fees provided under item 4 of the fees schedule 2012. He insisted that fees charged under this item are precisely feed on attachment/commission which in this case is 240,000/-thus 16% of the total fees will be Kshs 38,400/-.
10. In his further written submissions, the Appellant submitted that he properly and procedurally executed the Court’s decree and is thus entitled to the auctioneer’s fees as stipulated under the Fourth Schedule of Auctioneers Charges 2017. The Appellant submitted that the value paced on the seized property was neither exaggerated nor fraudulent hence the proclamation fee was not defective as the same was prepared as per the standards and requirements of Rule 12 (1b) of the Auctioneers Rules 2017. The Appellant submitted that if the Respondent was not satisfied with his valuation it was at liberty to seek the services of an independent valuer and have them prepare a report that they could have presented before the Court to rebut that of the Appellant.
Issues, Analysis and Determination
11. The Court has perused and considered papers filed in support to the appeal as well as the written submissions in respect thereto and identifies the main issue for determination to be whether this appeal is merited.
12. This being an appellate court is duty bound to re-evaluate the taxation in an exercise akin to a fresh taxation.
13. I have evaluated the figures of the impugned paragraphs e, f and g of the bill of cost and I do agree with the appellant that the taxing master departed from the law in making the awards on cost in the said items and no reason was advanced for the taxing master’s departure from adhering to the fees schedule as prescribed under the Auctioneers Charges.
14. As regards item (e), Part II 4 of the 4th Schedule of the Auctioneers Act prescribes for an Auctioneers fees on a charge of 2% where the value of the attached property is over kshs 1 Million. In this case, the proclaimed property was worth Kshs 12,000,000/-. Therefore 2 % yields the sum of Kshs 240,000/- which I hereby award.
15. On item f, the aforesaid schedule part 11 states that the transport shall be allowed at 3 times the rates published from time to time by the Automobile association. In the instant case, the auctioneer states that he travelled to Nairobi from Kakamega covering a distance of 600 kilometres. I have considered the calculation by the auctioneer to be sound and in line with the Auctioneer’s Rules. I will therefore allow this item at Kshs 263,520/
16. VAT is always chargeable on the commission which in this case is Kshs 240,000/-. 16 percent of Kshs 240,000/- yields Kshs 38,400/-.
17. Other than the above items, the other items remain as they were assessed by the taxing master as there is no challenge on them.
18. Accordingly, I find this appeal is well merited and I allow it with costs to the appellant assessed at Ksh 30,000/-.
19. This appeal file is therefore closed.
Delivered, Signed and at Bungoma this 30th day of June 2025.
M.S.Shariff
Judge
In the presence of:
N/A for the appellant
MS Ngome for the Respondent
Peter Machoni – Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL MISCELLANEOUS APPLICATION NO. E004 OF 2024
KENNEDY SHIKUKU T/A
ESHIKHONI AUCTIONEERS…………………………..............................................................................................…..APPEALLLANT
VERSUS
BRITAM GENERAL INSURANCE CO. LTD……….....................................................................................................……RESPONDENT
(Appeal from the Ruling and order of the Chief Magistrate’s Court of Kenya at Bungoma (Hon. T.M. Olando) dated 20th day of December, 2023 in CMCC No. E344 of 2023)
JUDGMENT
Background of the Appeal
1. Before the Court for determination is an appeal by the Appellant vide Chamber Summons dated 9th January 2024 and brought pursuant to Rule 55 Sub-rule 5 of the Auctioneers Rules 2017 seeking, in the main, that this Honourable Court be pleased to set aside the order of Honourable Tom Mark Olando in Bungoma CMCC No. E344 of 2023-Ali Ominde Shisia v Britam General Insurance and Kennedy Shiukuku T/A Eshikhoni Auctioneers made on 20th December 2023 on items e, f and g respectively, and order for the re-assessment of the Auctioneers Bill of Costs on items e, f and g respectively.
2. There is an alternative prayer that the Honourable Court be pleased to set aside the order of Honourable Tom Mark Olando in Bungoma CMCC No. E344 of 2023-Ali Ominde Shisia v Britam General Insurance and Kennedy Shiukuku T/A Eshikhoni Auctioneers made on 20th December 2023 on items e, f and g respectively and an order for the re-assessment and the same be substituted by an order of this Court re-assessing the bill afresh. The summons also prays that the Court makes an order providing for the costs.
3. The Chamber Summons enumerates grounds impugning the decision of the taxing master on taxation of an auctioneers’ bill. It is supported by the affidavit of Kennedy Shikuku sworn on 9th January 2024, in which he avers that the taxing officer’s award of Kshs. 25,186/- to the Appellant under item e as auctioneer fees contained charges as per the gazette rates, was haphazardly low and not compensatory. He claims that the taxing master erred in taxing item f of the bill at Kshs 87,840/- since the proclamation of the Respondent’s goods was done in Nairobi. He equally questions how the taxing master taxed item g in the sum of Kshs. 19,684/- against Kshs. 38,400/-that was sought by the Appellant.
4. The appellant faults the decision of the taxing master for the reasons that; he erred by taxing the Appellant’s auctioneer’s bill at Kshs. 154, 110/- when the correct costs was in fact Kshs. 162,810/-, failing to appreciate the fact that the correct yardstick for assessment of commission is the total value of the proclaimed property, failing to consider the Appellant’s submissions and authorities relied upon, failing to consider the taxed bill of costs based on the existing scale with regards to items e, f and g respectively, that the Appellant was deprived a total sum of Kshs. 417, 910/-; that the assessment in terms of items e, f and g was too low in the circumstances.
5. The appeal was unopposed as the Respondent did not file any response towards the same.
6. The appeal has been canvassed by way of written submissions and the Appellants herein relied on their trial Court’s written submissions and further written submissions.
7. The Appellants submissions were grounded on Rule 55 Sub-rule 3 of the Auctioneers Rules 2012 which stipulates that in any other case where a dispute arises as to the amount of fees payable to an auctioneer a magistrate or the Board may, on the application of any party to the dispute, assess the fees payable. With respect to item e, the Appellant submitted that under paragraph 4 part ii of the Auctioneers Rules stipulate that the fees on attachment/repossession/distrainment and expenses to be charged by the auctioneers and according to the Appellant the commission is netted from the total value of the judgement debtor’s proclaimed property. He posits that in this case, the value of the property in the proclamation was Kshs. 12,000,000/= wherefore the auctioneer was per paragraph 4 expected to charge 2% of the total value of the said proclaimed property which in this case was above Kshs. 100,000/- making the Appellant’s fees to be Kshs. 240,000/=. He relied on the case of Nairobi Civil Appeal No. 195 of 2004.
8. On item f, the Appellant submitted that the same is provided for under paragraph 11 of the fees schedule under the Auctioneers rules 2012 that provides that travelling expenses as published by automobile association from time to time be allowed at three times the scale of auto mobile association. He submitted that the proclamation was done in Nairobi and that he travelled all the way from Bungoma to Nairobi. He submitted that he covered a distance of 600 Kms and a similar distance on his way back. He submitted that multiplication of 600 Kms multiplied 2 which is the number of trips multiplied also by 3 which is the number of times provided under the 4th schedule multiplied also by Kshs. 73.20/- which is the current rates as provided by the Kenya auto mobile association bring the total amount to Kshs. 263,520/-.
9. On part g, the Appellant submitted that V.A.T is made on total fees provided under item 4 of the fees schedule 2012. He insisted that fees charged under this item are precisely feed on attachment/commission which in this case is 240,000/-thus 16% of the total fees will be Kshs 38,400/-.
10. In his further written submissions, the Appellant submitted that he properly and procedurally executed the Court’s decree and is thus entitled to the auctioneer’s fees as stipulated under the Fourth Schedule of Auctioneers Charges 2017. The Appellant submitted that the value paced on the seized property was neither exaggerated nor fraudulent hence the proclamation fee was not defective as the same was prepared as per the standards and requirements of Rule 12 (1b) of the Auctioneers Rules 2017. The Appellant submitted that if the Respondent was not satisfied with his valuation it was at liberty to seek the services of an independent valuer and have them prepare a report that they could have presented before the Court to rebut that of the Appellant.
Issues, Analysis and Determination
11. The Court has perused and considered papers filed in support to the appeal as well as the written submissions in respect thereto and identifies the main issue for determination to be whether this appeal is merited.
12. This being an appellate court is duty bound to re-evaluate the taxation in an exercise akin to a fresh taxation.
13. I have evaluated the figures of the impugned paragraphs e, f and g of the bill of cost and I do agree with the appellant that the taxing master departed from the law in making the awards on cost in the said items and no reason was advanced for the taxing master’s departure from adhering to the fees schedule as prescribed under the Auctioneers Charges.
14. As regards item (e), Part II 4 of the 4th Schedule of the Auctioneers Act prescribes for an Auctioneers fees on a charge of 2% where the value of the attached property is over kshs 1 Million. In this case, the proclaimed property was worth Kshs 12,000,000/-. Therefore 2 % yields the sum of Kshs 240,000/- which I hereby award.
15. On item f, the aforesaid schedule part 11 states that the transport shall be allowed at 3 times the rates published from time to time by the Automobile association. In the instant case, the auctioneer states that he travelled to Nairobi from Kakamega covering a distance of 600 kilometres. I have considered the calculation by the auctioneer to be sound and in line with the Auctioneer’s Rules. I will therefore allow this item at Kshs 263,520/
16. VAT is always chargeable on the commission which in this case is Kshs 240,000/-. 16 percent of Kshs 240,000/- yields Kshs 38,400/-.
17. Other than the above items, the other items remain as they were assessed by the taxing master as there is no challenge on them.
18. Accordingly, I find this appeal is well merited and I allow it with costs to the appellant assessed at Ksh 30,000/-.
19. This appeal file is therefore closed.
Delivered, Signed and at Bungoma this 30th day of June 2025.
M.S.Shariff
Judge
In the presence of:
N/A for the appellant
MS Ngome for the Respondent
Peter Machoni – Court Assistant