REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL MISCELLANEOUS APPLICATION NO. E016 OF 2025
KENNEDY SHIKUKU T/A
ESHIKHONI AUCTIONEERS………………………………….APPELLANT
VERSUS
MORTEX LIMITED…………………………………….……RESPONDENT
(Appeal from the decision of the Chief Magistrate’s Court of Kenya at Bungoma (Hon. T. A. Madowo) delivered on 6th March 2025 in CMCC No. E436 of 2023)
JUDGEMENT
A. Application
1. This Judgment is in respect of the Chamber Summons dated 10th March 2025. The Application arose from the taxation of Bill of Costs dated 14th November 2024, which is said to have arisen from Bungoma CMCC No. E436 of 2023 in which the Respondent instructed the Appellant as an auctioneer.
2. The Appellant seeks an Order setting aside the Taxing Officer's ruling delivered on 6th March 2025 and taxing the Bill of Costs afresh. The Appellant contends that the Taxing Officer erred in assessing low costs. The Appellant averred that the Taxing Officer erred in considering the commission payable to the Appellant and awarding it as discretionary instead of working it out as provided for under the 4th Schedule of the Auctioneers Practice Rules, and that the Taxing Officer grossly erred in law and fact by calculating V.A.T on wrong figures realized as commission.
3. Opposing the reference, the Respondent vide its Director, Richard Nyamai Mwaniki, swore a Replying Affidavit on 25th March 2025, wherein he averred that the Appellant’s Chamber Summons application was frivolous and an abuse of Court processes. According to him, the Appellant was not entitled to any award on commission as there was no attachment of any Respondent’s property since the decretal sum was paid immediately after proclamation. Further, he averred that the award on V.A.T was based on a wrong figure a claim which was unfounded and baseless. He concurred with the Court’s decision to rely on the award of commission on attachment to calculate V.A.T payable. Lastly, on the issue of travel, he averred that no proof was availed by the Appellant to show he travelled to Nakuru and it ought to be dismissed.
B. Submissions
4. The appeal has been canvassed by way of written submissions. Both parties complied with the Court directives.
C. Analysis and Determination
5. The issue is whether the learned taxing officer erred in her taxation of the Appellant’s Bill of Costs. The circumstances under which a Judge of the High Court interferes with the Taxing Officer’s exercise of discretion are now well known. These principles were laid down in the case of First American Bank of Kenya v. Shah and Others [2002] 1 EA 64, as follows:
(1) that the Court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle;
(2) it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Order itself, some of the relevant factors to be taken into account include the nature and the importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge;
(3) if the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practise is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment and the Court is not entitled to upset a taxation because in its opinion, the amount awarded was high;
(4) it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary; (5) the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it;
(5) the full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees;
(6) the mere fact that the defendant does research before filing a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary.
Assessing an amount commensurate to the work undertaken, it is of fundamental importance to consider the value of the subject…”
“…The law gives the taxing master some leeway but like all discretions, it must be exercised judicially and in line to the material presented before court.”
6. According to the above guide, a bill of costs should reimburse the services reasonably rendered and not enrich a party. This principle applies to the advocate's fee just as it applies to the auctioneers' fees.
7. The Appellant’s Bill of Costs dated 14th November 2024, arose from warrants of attachment and sale in Bungoma CMCC No. E436 of 2023. The decretal amount therein was Ksh. 673,259/= and it is not in dispute that attachment was done but execution did not happen thereafter.
8. The Appellant raised a bill for Ksh. 467,180/=. It is noted that the Appellant just proclaimed but did not attach the goods for sale.
9. Part II of the Fourth Schedule, which stipulates the fees an auctioneer is entitled to. Item (a) and (b) captures fees before attachment which was assessed at the sum of Kshs. 1,000/= and Kshs. 4,000/- respectively, that is envisaged under part II of the Fourth Schedule and thus merited as recoverable. This Court will not interfere with item (a) and (b).
10. Item c is claimed as filing fees which was taxed off as the same only applied to sale of immovable property under paragraph 6 of the Schedule. As clearly depicted above, there was no such sale, thus I uphold the decision of the Taxing Officer to tax this off.
11. Item d captures fees for taking inventory of the debtors property. I uphold the decision of the Taxing Officer taxing off this item at Kshs. 3,000/= with Kshs. 7,000/= taxed off.
12. Item e captures fees on attachment/commission. The bill of costs had a major philosophical difference. The Appellant based it on the value of goods attached/proclaimed, while the Taxing Officer based it on the value of goods on the warrant, that is Ksh. 673,259/=. The Court taxed it based on the value of the warrants.
13. The proclamation indicates that the goods attached were valued over Ksh. 10, 125,000/=, but no valuation report was availed thus the Taxing Officer could not adopt the said figure.
14. Consequently, the Taxing Officer could not base the fees or commission on a fictitious amount. The attachment must be done on site. Purporting to proclaim with no proper valuation report from a certified valuer is cavalier and illegal.
15. When faced with fictitious figures, the Court has the option of using the amount recovered, the amount on the warrant, or a reasonable amount.
16. The Appellant’s argues that the Appellant was entitled to fees based on the value of the property when the property was not attached or sold as such upon service of the proclamation under paragraph 4 of the 4th Schedule of the Auctioneers Rules, 2009 The Appellant contends that the auctioneers commission ought to be based on work done and not what could have been done. They further argue that commission on proclamation is not envisaged under the auctioneers’ rules. The Respondent on the other had contends that a proclamation is an attachment and they were thus entitled to a commission based on the value of the proclaimed goods.
17. The Court of Appeal in National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer [2005] eKLR observed that the auctioneers commission on proclamation should be based on the value of the proclaimed goods by holding as follows; -
“…We are satisfied that the learned Judge correctly construed the word “proclamation” in the context in which it is used in the Auctioneers Rules and reached the correct decision that the auctioneer was entitled to fees for attachment prescribed in paragraph 4 of Part II of the Fourth Schedule.
…We think that it is reasonable that the auctioneer’s charges for attachment should be based on the value of the goods attached and not on the decretal sum. It is to be remembered that the auctioneer is to be remunerated for the actual work done and not on the basis of what he could have done had be attached goods equivalent in value to the decretal sum.”
18. The rationale of the Court of Appeal in National Industrial Credit Bank Limited (supra) to assess commission payable on proclamation to be based on the value of the proclaimed goods was disclosed in the Judgment as follows:-
“The respondent based his fees on the decretal sum and the Deputy Registrar assessed the fees on the basis of the decretal sum. The wording of paragraph 4 of Part II of the Fourth Schedule does not say that the percentages stated apply to the decretal amount. It would be unjust to base the fee on attachment on the decretal amount because in some cases, the value of the attached goods may be many times less than the decretal amount shown in the warrant of attachment and sale.” (emphasis mine).
19. Having established that no valuation report was availed by the Appellant, the Taxing Officer was right to use the decretal sum in this instant case, the question before me is whether the taxing master exercised his discretion judiciously. I must remember that I cannot set aside the discretion of an inferior Court simply because I will have given a different figure. Even where the parties use different figures, the taxing Officer is entitled to adjust the same to a reasonable figure to avoid impeding access to justice. I am guided by the decision of Mbogo and another v. Shah [1968] EA 93 where the Court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
20. I uphold the Taxing Officer’s decision to base the Appellant’s fees on the amount in the warrants of attachment and taxing the item at 5% of the Kshs. 673, 259/= as per part 11 of the Auctioneers Practice Rules. The Taxing Officer taxing item (e) at Kshs. 33, 662/= was proper.
21. Item f on VAT been taxed at Kshs. 5,385/= was proper and this Court upholds the same.
22. Item g on travel expenses is very clear that the Taxing Officer applying the dints of Section 107 of the Evidence Act found the Appellant failed to prove the alleged travel expenses from Bungoma to Nakuru using his personal vehicle. This is unsubstantiated, as no supporting documentation was provided. It is entirely taxed off.
23. Item h on investigations on the whereabouts of the property, is also unsupported, as no proof was provided that the Appellant engaged an investigator. The holding of the Taxing Officer is upheld.
24. Item i further Court fees it is clear that the same was not paid by the Appellant as the same is also unsupported, as no proof was provided that the Appellant paid the same. The holding of the Taxing Officer is upheld.
25. Items j, k & o the same was not paid by the Appellant as the same is also unsupported, as no proof was provided that the Appellant paid the same. The holding of the Taxing Officer is upheld.
D. CONCLUSION
26. Accordingly, the Chamber Summons dated 10th March 2025 is allowed to the extent that:
a. The decision of the Taxing Officer made on 6th March 2025 is set aside in respect of item (e) of the Auctioneer’s Bill of Costs dated 14th March 2024 and the sum of Ksh 202,500 is allowed as prayed in item (e) of the said bill of cost.
27. The appellant is awarded costs of this appeal.
Dated and delivered at Bungoma this 13th day of February 2026.
M.S. Shariff
Judge
In the presence of:
N/A by Paul Juma for Appellant
Mr Khaemba for Respondent
Peter Machoni - Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL MISCELLANEOUS APPLICATION NO. E016 OF 2025
KENNEDY SHIKUKU T/A
ESHIKHONI AUCTIONEERS………………………………….APPELLANT
VERSUS
MORTEX LIMITED…………………………………….……RESPONDENT
(Appeal from the decision of the Chief Magistrate’s Court of Kenya at Bungoma (Hon. T. A. Madowo) delivered on 6th March 2025 in CMCC No. E436 of 2023)
JUDGEMENT
A. Application
1. This Judgment is in respect of the Chamber Summons dated 10th March 2025. The Application arose from the taxation of Bill of Costs dated 14th November 2024, which is said to have arisen from Bungoma CMCC No. E436 of 2023 in which the Respondent instructed the Appellant as an auctioneer.
2. The Appellant seeks an Order setting aside the Taxing Officer's ruling delivered on 6th March 2025 and taxing the Bill of Costs afresh. The Appellant contends that the Taxing Officer erred in assessing low costs. The Appellant averred that the Taxing Officer erred in considering the commission payable to the Appellant and awarding it as discretionary instead of working it out as provided for under the 4th Schedule of the Auctioneers Practice Rules, and that the Taxing Officer grossly erred in law and fact by calculating V.A.T on wrong figures realized as commission.
3. Opposing the reference, the Respondent vide its Director, Richard Nyamai Mwaniki, swore a Replying Affidavit on 25th March 2025, wherein he averred that the Appellant’s Chamber Summons application was frivolous and an abuse of Court processes. According to him, the Appellant was not entitled to any award on commission as there was no attachment of any Respondent’s property since the decretal sum was paid immediately after proclamation. Further, he averred that the award on V.A.T was based on a wrong figure a claim which was unfounded and baseless. He concurred with the Court’s decision to rely on the award of commission on attachment to calculate V.A.T payable. Lastly, on the issue of travel, he averred that no proof was availed by the Appellant to show he travelled to Nakuru and it ought to be dismissed.
B. Submissions
4. The appeal has been canvassed by way of written submissions. Both parties complied with the Court directives.
C. Analysis and Determination
5. The issue is whether the learned taxing officer erred in her taxation of the Appellant’s Bill of Costs. The circumstances under which a Judge of the High Court interferes with the Taxing Officer’s exercise of discretion are now well known. These principles were laid down in the case of First American Bank of Kenya v. Shah and Others [2002] 1 EA 64, as follows:
(1) that the Court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle;
(2) it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Order itself, some of the relevant factors to be taken into account include the nature and the importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge;
(3) if the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practise is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment and the Court is not entitled to upset a taxation because in its opinion, the amount awarded was high;
(4) it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary; (5) the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it;
(5) the full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees;
(6) the mere fact that the defendant does research before filing a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary.
Assessing an amount commensurate to the work undertaken, it is of fundamental importance to consider the value of the subject…”
“…The law gives the taxing master some leeway but like all discretions, it must be exercised judicially and in line to the material presented before court.”
6. According to the above guide, a bill of costs should reimburse the services reasonably rendered and not enrich a party. This principle applies to the advocate's fee just as it applies to the auctioneers' fees.
7. The Appellant’s Bill of Costs dated 14th November 2024, arose from warrants of attachment and sale in Bungoma CMCC No. E436 of 2023. The decretal amount therein was Ksh. 673,259/= and it is not in dispute that attachment was done but execution did not happen thereafter.
8. The Appellant raised a bill for Ksh. 467,180/=. It is noted that the Appellant just proclaimed but did not attach the goods for sale.
9. Part II of the Fourth Schedule, which stipulates the fees an auctioneer is entitled to. Item (a) and (b) captures fees before attachment which was assessed at the sum of Kshs. 1,000/= and Kshs. 4,000/- respectively, that is envisaged under part II of the Fourth Schedule and thus merited as recoverable. This Court will not interfere with item (a) and (b).
10. Item c is claimed as filing fees which was taxed off as the same only applied to sale of immovable property under paragraph 6 of the Schedule. As clearly depicted above, there was no such sale, thus I uphold the decision of the Taxing Officer to tax this off.
11. Item d captures fees for taking inventory of the debtors property. I uphold the decision of the Taxing Officer taxing off this item at Kshs. 3,000/= with Kshs. 7,000/= taxed off.
12. Item e captures fees on attachment/commission. The bill of costs had a major philosophical difference. The Appellant based it on the value of goods attached/proclaimed, while the Taxing Officer based it on the value of goods on the warrant, that is Ksh. 673,259/=. The Court taxed it based on the value of the warrants.
13. The proclamation indicates that the goods attached were valued over Ksh. 10, 125,000/=, but no valuation report was availed thus the Taxing Officer could not adopt the said figure.
14. Consequently, the Taxing Officer could not base the fees or commission on a fictitious amount. The attachment must be done on site. Purporting to proclaim with no proper valuation report from a certified valuer is cavalier and illegal.
15. When faced with fictitious figures, the Court has the option of using the amount recovered, the amount on the warrant, or a reasonable amount.
16. The Appellant’s argues that the Appellant was entitled to fees based on the value of the property when the property was not attached or sold as such upon service of the proclamation under paragraph 4 of the 4th Schedule of the Auctioneers Rules, 2009 The Appellant contends that the auctioneers commission ought to be based on work done and not what could have been done. They further argue that commission on proclamation is not envisaged under the auctioneers’ rules. The Respondent on the other had contends that a proclamation is an attachment and they were thus entitled to a commission based on the value of the proclaimed goods.
17. The Court of Appeal in National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer [2005] eKLR observed that the auctioneers commission on proclamation should be based on the value of the proclaimed goods by holding as follows; -
“…We are satisfied that the learned Judge correctly construed the word “proclamation” in the context in which it is used in the Auctioneers Rules and reached the correct decision that the auctioneer was entitled to fees for attachment prescribed in paragraph 4 of Part II of the Fourth Schedule.
…We think that it is reasonable that the auctioneer’s charges for attachment should be based on the value of the goods attached and not on the decretal sum. It is to be remembered that the auctioneer is to be remunerated for the actual work done and not on the basis of what he could have done had be attached goods equivalent in value to the decretal sum.”
18. The rationale of the Court of Appeal in National Industrial Credit Bank Limited (supra) to assess commission payable on proclamation to be based on the value of the proclaimed goods was disclosed in the Judgment as follows:-
“The respondent based his fees on the decretal sum and the Deputy Registrar assessed the fees on the basis of the decretal sum. The wording of paragraph 4 of Part II of the Fourth Schedule does not say that the percentages stated apply to the decretal amount. It would be unjust to base the fee on attachment on the decretal amount because in some cases, the value of the attached goods may be many times less than the decretal amount shown in the warrant of attachment and sale.” (emphasis mine).
19. Having established that no valuation report was availed by the Appellant, the Taxing Officer was right to use the decretal sum in this instant case, the question before me is whether the taxing master exercised his discretion judiciously. I must remember that I cannot set aside the discretion of an inferior Court simply because I will have given a different figure. Even where the parties use different figures, the taxing Officer is entitled to adjust the same to a reasonable figure to avoid impeding access to justice. I am guided by the decision of Mbogo and another v. Shah [1968] EA 93 where the Court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
20. I uphold the Taxing Officer’s decision to base the Appellant’s fees on the amount in the warrants of attachment and taxing the item at 5% of the Kshs. 673, 259/= as per part 11 of the Auctioneers Practice Rules. The Taxing Officer taxing item (e) at Kshs. 33, 662/= was proper.
21. Item f on VAT been taxed at Kshs. 5,385/= was proper and this Court upholds the same.
22. Item g on travel expenses is very clear that the Taxing Officer applying the dints of Section 107 of the Evidence Act found the Appellant failed to prove the alleged travel expenses from Bungoma to Nakuru using his personal vehicle. This is unsubstantiated, as no supporting documentation was provided. It is entirely taxed off.
23. Item h on investigations on the whereabouts of the property, is also unsupported, as no proof was provided that the Appellant engaged an investigator. The holding of the Taxing Officer is upheld.
24. Item i further Court fees it is clear that the same was not paid by the Appellant as the same is also unsupported, as no proof was provided that the Appellant paid the same. The holding of the Taxing Officer is upheld.
25. Items j, k & o the same was not paid by the Appellant as the same is also unsupported, as no proof was provided that the Appellant paid the same. The holding of the Taxing Officer is upheld.
D. CONCLUSION
26. Accordingly, the Chamber Summons dated 10th March 2025 is allowed to the extent that:
a. The decision of the Taxing Officer made on 6th March 2025 is set aside in respect of item (e) of the Auctioneer’s Bill of Costs dated 14th March 2024 and the sum of Ksh 202,500 is allowed as prayed in item (e) of the said bill of cost.
27. The appellant is awarded costs of this appeal.
Dated and delivered at Bungoma this 13th day of February 2026.
M.S. Shariff
Judge
In the presence of:
N/A by Paul Juma for Appellant
Mr Khaemba for Respondent
Peter Machoni - Court Assistant