REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL MISC. NO. E049 OF 2023
SMEP MICROFINANCE BANK LIMITED…………………...............................................................................................................APPELLANT
VERSUS
ZEPHANIA AMENYA T/AREMMA AUCTIONEERS…….................................................................................................................RESPONDENT
JUDGMENT
1. The application coming up for determination is a chamber of summons dated 1st August 2023, seeking the following orders;
a. That the whole or entire decision of the Taxing Master/Magistrate delivered virtually on 28th July 2023 in CMCC No. E436 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare & 57 Others be set aside.
b. That CMCC No. E436 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare & 57 Others be taxed afresh and/or remitted back to a different Taxing Master/Magistrate for fresh taxation taking into account the Appellant’s Replying Affidavit, written submissions and comparable judicial authorities.
c. That this Honourable Court be pleased to make such further and/or other orders as it may deem just, fair, reasonable and appropriate in the circumstances in order for the ends of justice to be met.
d. That the costs of this appeal be provided for.
2. The application is supported by grounds on the face of it, which I wish to reproduce verbatim hereunder:
a. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by failing to consider an/or completely ignore the Appellant’s Replying Affidavit as well as exhibits to the consolidated bill of costs despite the same being filed and on record thereby not giving the Appellant the right to be heard.
b. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by failing to properly evaluate the evidence adduced through the Appellant’s Replying Affidavit; by taking into account irrelevant considerations and ignoring critical matters hence leading to miscarriage of justice.
c. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by considering CMCC No. E436 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare as a test suit instead of treating it as one of the fifty-seven (57) consolidates matters.
d. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by treating the fifty eight (58) consolidated bill of costs as one, instead of assessing each bill of costs independently on their respective merits.
e. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by ignoring clear and mandatory provisions of schedule 4 of the applicable Auctioneers Rules relating to costs.
f. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by failing to properly consider the comparable judicial authorities availed.
g. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by failing to consider, evaluate and give due weight to the Appellant’s submissions and thereby occasioning a miscarriage of justice.
h. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by applying wrong principles pertaining to assessment of auctioneers bills of costs and/or taxation thereby arriving at a manifestly excessive award and hence miscarriage of justice.
3. Parties were directed to file and serve submissions but at the time of writing this Ruling both had not complied with those directions despite the Court proceedings dated 23rd April 2025, indicating that they all filed their respective written submissions on 7th April 2025.
4. On my critical perusal of the Record of appeal, it is very clear that the Appellant herein issued respective instructions to the Respondent’s herein wanting recovering of different amounts of loans by the Respondent. It is also clear that the Appellant’s herein filed a Motion application seeking consolidation of all the 58 files and the same was allowed via an order issued on 7th June 2022 by the Taxing Master, and that CMCC No. E436 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare was expected to be the lead file but due to the respective Court registry’s failure to locate CMCC No. E436 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare, CMCC No. E459 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare was temporarily placed as the lead file.
5. A test suit is thus a convenient mode of treatment of multiple suits between the same parties where similar issues of law and fact arise. The purpose and effect of selection of a test suit is subject to the dints of Order 38 Rules 1 and 2 of the Civil Procedure Rules (CPR) provides as follows;-
Order 38 – Selection of Test Suit
1.Staying several suits against the same defendant [Order 38, rule 1.]
Where two or more persons have instituted suits against the same defendant and such persons under rule 1 of Order I could have been joined as co-plaintiffs in one suit, upon the application of any of the parties with notice to all affected parties, the court may, if satisfied that the issues to be tried in each suit are precisely similar, make an order directing that one of the suits be tried as a test case, and staying all steps in the other suits until the selected suit shall have been determined, or shall have failed to be a real trial of the issues.
Staying similar suits upon application by defendant [Order 38, rule 2.]
Where a plaintiff has instituted two or more suits, and under rule 3 of Order 1 the several dependants could properly have been joined as co-defendants in one suit, the court, if satisfied upon the application of a defendant that the issues to be tried in the suit to which he is a party are precisely similar to the issues to be determined in another of such suits, may order that the suit to which such defendant is a party be stayed until such other suit shall have been determined or shall have failed to be a real trial of the issues.
6. My perusal of the lower Court ruling clearly treated the auctioneer’s bill of costs before it as a test suit yet the same had different proclaimed amounts. This simply means that the Taxing Master ordering that the decision as rendered in CMCC No. E436 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare to apply to the other 57 matters was in error.
7. It is evident that the Appellants stands to suffer prejudice and injustice if the Respondents herein are allowed to execute as per the orders of the Court issued on 28th Jul 2023.
8. In view of the foregoing finding, I am convinced that the Taxing Master ought not to have just taxed the Bill of costs in CMCC No. E436 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare and left the other 57 undetermined.
9. Consequently, I allow the Chamber Summons dated 1st August 2023 by setting aside the ruling of the taxing master delivered on 2th July 2023 and any certificate of costs made thereunder and substitute therewith an order referring the Notice of Motion dated 25th June 2018, for hearing by a Taxing Master of this court other than HON. C.A.S Mutai after being satisfied that the Bill of costs is brought 57 bills of costs were left undetermined. The Auctioneer is condemned to pay costs of the reference. No order as to costs.
10. It is so ordered.
Delivered, Signed and Dated at Bungoma this 30th day of June 2025.
M. S. SHARIFF
JUDGE
In the presence of:
N/A MR SIMIYU FOR APPELLANT
MASIGA H/B FOR WEKESA FOR RESPONDENT- PRESENT
PETER MACHONI-COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL MISC. NO. E049 OF 2023
SMEP MICROFINANCE BANK LIMITED…………………...............................................................................................................APPELLANT
VERSUS
ZEPHANIA AMENYA T/AREMMA AUCTIONEERS…….................................................................................................................RESPONDENT
JUDGMENT
1. The application coming up for determination is a chamber of summons dated 1st August 2023, seeking the following orders;
a. That the whole or entire decision of the Taxing Master/Magistrate delivered virtually on 28th July 2023 in CMCC No. E436 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare & 57 Others be set aside.
b. That CMCC No. E436 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare & 57 Others be taxed afresh and/or remitted back to a different Taxing Master/Magistrate for fresh taxation taking into account the Appellant’s Replying Affidavit, written submissions and comparable judicial authorities.
c. That this Honourable Court be pleased to make such further and/or other orders as it may deem just, fair, reasonable and appropriate in the circumstances in order for the ends of justice to be met.
d. That the costs of this appeal be provided for.
2. The application is supported by grounds on the face of it, which I wish to reproduce verbatim hereunder:
a. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by failing to consider an/or completely ignore the Appellant’s Replying Affidavit as well as exhibits to the consolidated bill of costs despite the same being filed and on record thereby not giving the Appellant the right to be heard.
b. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by failing to properly evaluate the evidence adduced through the Appellant’s Replying Affidavit; by taking into account irrelevant considerations and ignoring critical matters hence leading to miscarriage of justice.
c. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by considering CMCC No. E436 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare as a test suit instead of treating it as one of the fifty-seven (57) consolidates matters.
d. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by treating the fifty eight (58) consolidated bill of costs as one, instead of assessing each bill of costs independently on their respective merits.
e. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by ignoring clear and mandatory provisions of schedule 4 of the applicable Auctioneers Rules relating to costs.
f. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by failing to properly consider the comparable judicial authorities availed.
g. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by failing to consider, evaluate and give due weight to the Appellant’s submissions and thereby occasioning a miscarriage of justice.
h. That the Learned/Honourable Taxing Master/Magistrate erred in fact and law by applying wrong principles pertaining to assessment of auctioneers bills of costs and/or taxation thereby arriving at a manifestly excessive award and hence miscarriage of justice.
3. Parties were directed to file and serve submissions but at the time of writing this Ruling both had not complied with those directions despite the Court proceedings dated 23rd April 2025, indicating that they all filed their respective written submissions on 7th April 2025.
4. On my critical perusal of the Record of appeal, it is very clear that the Appellant herein issued respective instructions to the Respondent’s herein wanting recovering of different amounts of loans by the Respondent. It is also clear that the Appellant’s herein filed a Motion application seeking consolidation of all the 58 files and the same was allowed via an order issued on 7th June 2022 by the Taxing Master, and that CMCC No. E436 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare was expected to be the lead file but due to the respective Court registry’s failure to locate CMCC No. E436 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare, CMCC No. E459 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare was temporarily placed as the lead file.
5. A test suit is thus a convenient mode of treatment of multiple suits between the same parties where similar issues of law and fact arise. The purpose and effect of selection of a test suit is subject to the dints of Order 38 Rules 1 and 2 of the Civil Procedure Rules (CPR) provides as follows;-
Order 38 – Selection of Test Suit
1.Staying several suits against the same defendant [Order 38, rule 1.]
Where two or more persons have instituted suits against the same defendant and such persons under rule 1 of Order I could have been joined as co-plaintiffs in one suit, upon the application of any of the parties with notice to all affected parties, the court may, if satisfied that the issues to be tried in each suit are precisely similar, make an order directing that one of the suits be tried as a test case, and staying all steps in the other suits until the selected suit shall have been determined, or shall have failed to be a real trial of the issues.
Staying similar suits upon application by defendant [Order 38, rule 2.]
Where a plaintiff has instituted two or more suits, and under rule 3 of Order 1 the several dependants could properly have been joined as co-defendants in one suit, the court, if satisfied upon the application of a defendant that the issues to be tried in the suit to which he is a party are precisely similar to the issues to be determined in another of such suits, may order that the suit to which such defendant is a party be stayed until such other suit shall have been determined or shall have failed to be a real trial of the issues.
6. My perusal of the lower Court ruling clearly treated the auctioneer’s bill of costs before it as a test suit yet the same had different proclaimed amounts. This simply means that the Taxing Master ordering that the decision as rendered in CMCC No. E436 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare to apply to the other 57 matters was in error.
7. It is evident that the Appellants stands to suffer prejudice and injustice if the Respondents herein are allowed to execute as per the orders of the Court issued on 28th Jul 2023.
8. In view of the foregoing finding, I am convinced that the Taxing Master ought not to have just taxed the Bill of costs in CMCC No. E436 of 2021-Bungoma & 57 Others (Consolidated) -Zephania Amenya Areba T/A Remma Auctioneers vs Smep Microfinance Bank Limited & Michael Nakitare and left the other 57 undetermined.
9. Consequently, I allow the Chamber Summons dated 1st August 2023 by setting aside the ruling of the taxing master delivered on 2th July 2023 and any certificate of costs made thereunder and substitute therewith an order referring the Notice of Motion dated 25th June 2018, for hearing by a Taxing Master of this court other than HON. C.A.S Mutai after being satisfied that the Bill of costs is brought 57 bills of costs were left undetermined. The Auctioneer is condemned to pay costs of the reference. No order as to costs.
10. It is so ordered.
Delivered, Signed and Dated at Bungoma this 30th day of June 2025.
M. S. SHARIFF
JUDGE
In the presence of:
N/A MR SIMIYU FOR APPELLANT
MASIGA H/B FOR WEKESA FOR RESPONDENT- PRESENT
PETER MACHONI-COURT ASSISTANT