[1] This appeal was filed by way of a Chamber Summons dated 24 th April 2024. The application was brought pursuant to Rule 55(5) of the Auctioneers Rules, 1997, as an appeal from the ruling and order made in Homa Bay Chief Magistrate’s Miscellaneous Civil Case No. E006 of 2023 . In that suit, the appellant had moved the lower court for assessment of his Bill of Costs dated 2 nd May 2023 and for judgment to be entered in his favour in terms of the ensuing Certificate of Costs. Upon considering the submissions filed by the parties, the learned magistrate held:
“In a ruling delivered on 30/11/2022 the attachment was declared illegal. Consequently, the applicant cannot recover any costs from the respondent and should go to the instructing client for his costs. Up to this end, I am inclined to give the following orders:
1. The application dated the 2 nd day of May, is dismissed.
2. The respondent shall have costs.”
[2] Being aggrieved by that ruling and the orders made therein, the appellant filed this appeal seeking for orders that:
[a] That the Court be pleased to set aside, substitute and/or review the ruling and order dated 19 th April 2024 by the taxing master dismissing the appellant’s Notice of Motion dated 2 nd May 2023 together with all its consequential orders.
[b] That, consequent to Prayer [a] being granted, the Court be pleased to reinstate the application dated 2 nd May 2023 for hearing and fresh assessment of the Bill of Costs dated 2 nd May 2023.
[c] That the Court be pleased to order that the reinstated application and Bill of Costs be heard by a different magistrate.
[d] That costs of the appeal and interest on the assessed amount be borne by the respondent.
[e] That such other or further orders be made as the Court may deem fit and expedient.
[3] The application was premised on the grounds that:
[a] The taxing officer erred in law and fact when she considered an irrelevant fact which was not applicable to the issue before her, as such ended up with a wrong conclusion and decision.
[b] The taxing officer erred in law and fact when she considered non-existing facts which were not applicable to the issue before her, as such ended up with a wrong conclusion and decision.
[c] The taxing officer erred in law and fact when she completely ignored the submissions filed by the appellant in her ruling hence ended up with a wrong conclusion and decision.
[d] The taxing officer erred in law and fact when she completely ignored the clear provisions of the 4 th Schedule of the Auctioneers Rules.
[e] The taxing officer erred in law and fact when she reached a decision that will greatly cause the appellant serious irreparable loss and set a dangerous precedent.
[f] The decision of the taxing officer has caused a serious miscarriage of justice and hence should be set aside, substituted and/or reviewed in the interest of justice.
[4] In his Supporting Affidavit, the applicant averred that he is a licensed Auctioneer, and that in that capacity he received warrants of attachment and sale from the Chief Magistrate’s Court at Homa Bay in respect of the judgment and decree passed in Homa Bay CMCC No. 56 of 2017 for execution against the respondent. He stated that, upon being served with a Proclamation Notice along with his fee note, the respondent moved to court and obtained an order of stay.
[5] The applicant further averred that he was thereafter instructed by Ms. Sharon Achieng Omolo , Advocate, to proceed with execution on the ground that the respondent had failed to comply with the terms of the ruling dated 16 th June 2022. He therefore went ahead and caused the warrants of attachment and sale to be extended, whereupon he seized the proclaimed property on the 12 th July 2022. Again, the respondent successfully applied for stay of execution that culminated in the ruling dated 30 th November 2022, by which the attachment was nullified.
[6] The applicant posited that he thereafter filed his Bill of Costs for assessment and eventual payment. He added that, in his view, the ruling of the High Court did not recall or nullify the earlier execution process leading to up to the proclamation of the respondent’s property; and therefore the learned magistrate erred in dismissing his Bill of Costs on the basis of the said ruling. At paragraph 13 of his Supporting Affidavit, the applicant averred that the learned magistrate grossly erred in both law and fact when considering his application and Bill of Costs dated 2 nd May 2023 by inserting and applying words which were never used by the Judge in his ruling dated 30 th November 2022, hence leading to a miscarriage of justice. He therefore prayed that his appeal be allowed and that this Bill of Costs be reinstated for hearing and fair disposal to enable him recover his costs.
[7] The respondent filed Grounds of Opposition dated 8 th August 2024 contending that:
[a] The application is not only mischievous but also misguided.
[b] The delay in serving the said application is not justified and should be construed to constitute malice.
[c] The review sought is based on no material facts as it purports to seek an interpretation of the Judge’s ruling as opposed to any fundamental decision of the subordinate court.
[d] No reason known in law has been advanced to seek to have the matter heard before a different magistrate.
[5] The application was canvassed by way of written submissions, pursuant to the directions given herein on 10 th March 2025. The appellant relied on his written submissions dated 27 th March 2025. He submitted that under Rule 55 of the Auctioneers Rules he had the option of seeking the assessment of his costs before the Magistrate’s Court or the Auctioneers Licensing Board; and that he opted to file his Bill of Costs before the magistrate’s court. The appellant took issue with the interpretation employed by the learned magistrate and contended that the ruling dated 30 th November 2024 only targeted the subsequent act of carting away the proclaimed goods and therefore he is entitled to his fees in respect of the preceding activities.
[9] The respondent relied on the written submissions dated 22 nd April 2025 and reiterated the factual basis of the appeal, namely, that it filed Homa Bay Civil Appeal No. E015 of 2021 against the judgment delivered in Homa Bay CMCC No. 56 of 2017 ; and that it thereafter filed an application for stay of execution which was allowed on condition that security be deposited within 15 days from the date of the ruling. The respondent further stated that, in spite of the stay order, the appellant proceeded to attach its property, which action gave rise to the application dated 12 th July 2022. The respondent also mentioned that in its ruling dated 30 th November 2022, the court declared the attachment illegal and it was on that basis that the learned magistrate dismissed the appellant’s Bill of Costs.
[10] In the premises, the respondent proposed for determination the question whether the appeal has merit. In the respondent’s view the application is baseless as the record speaks for itself. It submitted that the appellant has no valid claim against it and should look to his instructing client for payment. The respondent defended the ruling of the lower court and urged for the dismissal of the appeal.
[11] I have carefully considered the appeal, filed by way of the Chamber Summons dated 24 th April 2024 . The only issue that arises for determination herein, is whether the learned magistrate erred in dismissing the applicant’s Bill of Costs dated 2 nd May 2023 there being no contestation on the jurisdiction of the Court to handle the application. Indeed, Rule 55 of the Auctioneers Rules is explicit that:
(1) Except as may be provided by any other written law or by contract the fees set out in the Fourth Schedule payable to the auctioneer for the attachment, repossession and sale of movable and immovable property under court warrants or letters of instructions shall be charged in accordance with these Rules.
(2) Where a dispute arises as to the amount of fees payable to an auctioneer—
(a) in proceedings before the High Court; or
(b) where the value of the property attached or repossessed would bring any proceedings in connection with it within the monetary jurisdiction of the High Court,
a registrar, as defined in the Civil Procedure Rules (Cap. 21, Sub. Leg.), may on the application of any party to the dispute assess the fee payable.
(3) 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.
(4) An appeal from a decision of a registrar or a magistrate or the Board under subrules (2) and (3) shall be to a judge in chambers.
(5) 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.
[12] A perusal of the documents on the file confirm that the Chamber Summons dated 24 th April 2024 was filed within the prescribed period of 7 days as provided for in Rule 55(5) above.
[13] As to whether the learned magistrate erred in dismissing the applicant’s Bill of Costs dated 2 nd October, 2019, it is now trite law that the Court will only interfere with the decision of a magistrate on assessment of costs in cases where there is an error in principle. In the case of Republic v Ministry of Agriculture & 20 Others Ex-Parte Muchiri W’ Njuguna [2006] eKLR, Hon. Ojwang, J. (as he then was) stated as follows:
“…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 interference that it was based on an error of principle...”( see also KANU National Elections Board & 2 Others v Salah Yakub Farah, supra )
[14] The High Court having nullified the attachment for which the appellant had filed the Bill of Costs dated 2 nd May 2023, the learned magistrate had no option but to dismiss the said Bill of Costs. Courts are bound by the doctrine of stare decisis , such that it would have been unseemly for the learned magistrate to ignore the decision of the High Court as proposed by the appellant. In Ernst & Young LLP v capital Markets Authority & another [2017] eKLR, Mativo, J. (as he then was) held:
“… The doctrine of stare decisis is long recognized as a principle of our law. Sir Frederick Pollock, in his first book of jurisprudence, 6 th ed. Page 321:
‘The decisions of an ordinary superior court are binding on all courts of inferior rank within the same jurisdiction, and though not absolutely binding on courts of co-ordinate authority nor on the court itself, will be followed in the absence of strong reason to the contrary’…”
[15] Similarly, in Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment) the Supreme Court held:
This court has underscored the importance, fidelity and centrality of respecting and observing the doctrine of stare decisis . It serves as a reference point, and ensures that there is consistency, certainty and predictability in the administration of the law which in turn, enhances confidence in the justice system. Stare decisis sets the baseline of how people conduct their everyday affairs and how they transact with the State. See Asanyo & 3 Others v Attorney- General , (Petition 7 of 2019) [2020] KESC 62 ( KLR ).
[16] In the premises, I find no merit in the appeal. The same is hereby dismissed with costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14 TH DAY OF AUGUST 2026
“In a ruling delivered on 30/11/2022 the attachment was declared illegal. Consequently, the applicant cannot recover any costs from the respondent and should go to the instructing client for his costs. Up to this end, I am inclined to give the following orders:
1. The application dated the 2 nd day of May, is dismissed.
2. The respondent shall have costs.”
[2] Being aggrieved by that ruling and the orders made therein, the appellant filed this appeal seeking for orders that:
[a] That the Court be pleased to set aside, substitute and/or review the ruling and order dated 19 th April 2024 by the taxing master dismissing the appellant’s Notice of Motion dated 2 nd May 2023 together with all its consequential orders.
[b] That, consequent to Prayer [a] being granted, the Court be pleased to reinstate the application dated 2 nd May 2023 for hearing and fresh assessment of the Bill of Costs dated 2 nd May 2023.
[c] That the Court be pleased to order that the reinstated application and Bill of Costs be heard by a different magistrate.
[d] That costs of the appeal and interest on the assessed amount be borne by the respondent.
[e] That such other or further orders be made as the Court may deem fit and expedient.
[3] The application was premised on the grounds that:
[a] The taxing officer erred in law and fact when she considered an irrelevant fact which was not applicable to the issue before her, as such ended up with a wrong conclusion and decision.
[b] The taxing officer erred in law and fact when she considered non-existing facts which were not applicable to the issue before her, as such ended up with a wrong conclusion and decision.
[c] The taxing officer erred in law and fact when she completely ignored the submissions filed by the appellant in her ruling hence ended up with a wrong conclusion and decision.
[d] The taxing officer erred in law and fact when she completely ignored the clear provisions of the 4 th Schedule of the Auctioneers Rules.
[e] The taxing officer erred in law and fact when she reached a decision that will greatly cause the appellant serious irreparable loss and set a dangerous precedent.
[f] The decision of the taxing officer has caused a serious miscarriage of justice and hence should be set aside, substituted and/or reviewed in the interest of justice.
[4] In his Supporting Affidavit, the applicant averred that he is a licensed Auctioneer, and that in that capacity he received warrants of attachment and sale from the Chief Magistrate’s Court at Homa Bay in respect of the judgment and decree passed in Homa Bay CMCC No. 56 of 2017 for execution against the respondent. He stated that, upon being served with a Proclamation Notice along with his fee note, the respondent moved to court and obtained an order of stay.
[5] The applicant further averred that he was thereafter instructed by Ms. Sharon Achieng Omolo , Advocate, to proceed with execution on the ground that the respondent had failed to comply with the terms of the ruling dated 16 th June 2022. He therefore went ahead and caused the warrants of attachment and sale to be extended, whereupon he seized the proclaimed property on the 12 th July 2022. Again, the respondent successfully applied for stay of execution that culminated in the ruling dated 30 th November 2022, by which the attachment was nullified.
[6] The applicant posited that he thereafter filed his Bill of Costs for assessment and eventual payment. He added that, in his view, the ruling of the High Court did not recall or nullify the earlier execution process leading to up to the proclamation of the respondent’s property; and therefore the learned magistrate erred in dismissing his Bill of Costs on the basis of the said ruling. At paragraph 13 of his Supporting Affidavit, the applicant averred that the learned magistrate grossly erred in both law and fact when considering his application and Bill of Costs dated 2 nd May 2023 by inserting and applying words which were never used by the Judge in his ruling dated 30 th November 2022, hence leading to a miscarriage of justice. He therefore prayed that his appeal be allowed and that this Bill of Costs be reinstated for hearing and fair disposal to enable him recover his costs.
[7] The respondent filed Grounds of Opposition dated 8 th August 2024 contending that:
[a] The application is not only mischievous but also misguided.
[b] The delay in serving the said application is not justified and should be construed to constitute malice.
[c] The review sought is based on no material facts as it purports to seek an interpretation of the Judge’s ruling as opposed to any fundamental decision of the subordinate court.
[d] No reason known in law has been advanced to seek to have the matter heard before a different magistrate.
[5] The application was canvassed by way of written submissions, pursuant to the directions given herein on 10 th March 2025. The appellant relied on his written submissions dated 27 th March 2025. He submitted that under Rule 55 of the Auctioneers Rules he had the option of seeking the assessment of his costs before the Magistrate’s Court or the Auctioneers Licensing Board; and that he opted to file his Bill of Costs before the magistrate’s court. The appellant took issue with the interpretation employed by the learned magistrate and contended that the ruling dated 30 th November 2024 only targeted the subsequent act of carting away the proclaimed goods and therefore he is entitled to his fees in respect of the preceding activities.
[9] The respondent relied on the written submissions dated 22 nd April 2025 and reiterated the factual basis of the appeal, namely, that it filed Homa Bay Civil Appeal No. E015 of 2021 against the judgment delivered in Homa Bay CMCC No. 56 of 2017 ; and that it thereafter filed an application for stay of execution which was allowed on condition that security be deposited within 15 days from the date of the ruling. The respondent further stated that, in spite of the stay order, the appellant proceeded to attach its property, which action gave rise to the application dated 12 th July 2022. The respondent also mentioned that in its ruling dated 30 th November 2022, the court declared the attachment illegal and it was on that basis that the learned magistrate dismissed the appellant’s Bill of Costs.
[10] In the premises, the respondent proposed for determination the question whether the appeal has merit. In the respondent’s view the application is baseless as the record speaks for itself. It submitted that the appellant has no valid claim against it and should look to his instructing client for payment. The respondent defended the ruling of the lower court and urged for the dismissal of the appeal.
[11] I have carefully considered the appeal, filed by way of the Chamber Summons dated 24 th April 2024 . The only issue that arises for determination herein, is whether the learned magistrate erred in dismissing the applicant’s Bill of Costs dated 2 nd May 2023 there being no contestation on the jurisdiction of the Court to handle the application. Indeed, Rule 55 of the Auctioneers Rules is explicit that:
(1) Except as may be provided by any other written law or by contract the fees set out in the Fourth Schedule payable to the auctioneer for the attachment, repossession and sale of movable and immovable property under court warrants or letters of instructions shall be charged in accordance with these Rules.
(2) Where a dispute arises as to the amount of fees payable to an auctioneer—
(a) in proceedings before the High Court; or
(b) where the value of the property attached or repossessed would bring any proceedings in connection with it within the monetary jurisdiction of the High Court,
a registrar, as defined in the Civil Procedure Rules (Cap. 21, Sub. Leg.), may on the application of any party to the dispute assess the fee payable.
(3) 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.
(4) An appeal from a decision of a registrar or a magistrate or the Board under subrules (2) and (3) shall be to a judge in chambers.
(5) 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.
[12] A perusal of the documents on the file confirm that the Chamber Summons dated 24 th April 2024 was filed within the prescribed period of 7 days as provided for in Rule 55(5) above.
[13] As to whether the learned magistrate erred in dismissing the applicant’s Bill of Costs dated 2 nd October, 2019, it is now trite law that the Court will only interfere with the decision of a magistrate on assessment of costs in cases where there is an error in principle. In the case of Republic v Ministry of Agriculture & 20 Others Ex-Parte Muchiri W’ Njuguna [2006] eKLR, Hon. Ojwang, J. (as he then was) stated as follows:
“…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 interference that it was based on an error of principle...”( see also KANU National Elections Board & 2 Others v Salah Yakub Farah, supra )
[14] The High Court having nullified the attachment for which the appellant had filed the Bill of Costs dated 2 nd May 2023, the learned magistrate had no option but to dismiss the said Bill of Costs. Courts are bound by the doctrine of stare decisis , such that it would have been unseemly for the learned magistrate to ignore the decision of the High Court as proposed by the appellant. In Ernst & Young LLP v capital Markets Authority & another [2017] eKLR, Mativo, J. (as he then was) held:
“… The doctrine of stare decisis is long recognized as a principle of our law. Sir Frederick Pollock, in his first book of jurisprudence, 6 th ed. Page 321:
‘The decisions of an ordinary superior court are binding on all courts of inferior rank within the same jurisdiction, and though not absolutely binding on courts of co-ordinate authority nor on the court itself, will be followed in the absence of strong reason to the contrary’…”
[15] Similarly, in Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment) the Supreme Court held:
This court has underscored the importance, fidelity and centrality of respecting and observing the doctrine of stare decisis . It serves as a reference point, and ensures that there is consistency, certainty and predictability in the administration of the law which in turn, enhances confidence in the justice system. Stare decisis sets the baseline of how people conduct their everyday affairs and how they transact with the State. See Asanyo & 3 Others v Attorney- General , (Petition 7 of 2019) [2020] KESC 62 ( KLR ).
[16] In the premises, I find no merit in the appeal. The same is hereby dismissed with costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14 TH DAY OF AUGUST 2026