1. The appellant/applicant moved the court through a Notice of Motion dated the 5th day of February 2024. It was brought under sections 1A, 1B, 3A & 95 of the Civil Procedure Act, Order 21 Rules 8 & 9, Order 42 Rules 6 & 21, Order 45 Rule 1, Order 50 Rule 6, and Order 51 Rule 1 of the Civil Procedure Rules. The applicant is seeking the following orders:
a) That this application be certified urgent, service be dispensed with thereof, and the same be heard ex parte in the first instance. [spent]
b) That this honorable court order the respondent and/or their agents and/or employees to release motor vehicle registration number KCK 766T as the applicant has settled the decretal amount.
c) That this honourable court orders the auctioneers to tax their costs.
d) This court should grant the order of police assistance in releasing motor vehicle registration number KCK 766T.
e) That this honourable court does make any such further order(s) and issue any other relief it may deem fit to grant in the interest of justice.
f) That the costs of the application be in the cause.
2. The application was premised on the following grounds:
a) The applicant’s appeal was dismissed on 6/3/2023 for failure to file the record of appeal.
b) On 4/8/2024 [sic], the respondent proceeded with execution proceedings and attached the motor vehicle registration number KCK 766T through its agent, Odongo Investments.
c) The applicants settled the decretal amount with all outstanding costs and interests on 13/12/2023.
d) The applicant engaged the auctioneers regarding their costs, but our efforts proved futile.
e) It will be prudent that the attached motor vehicle registration number, KCK 766T, be released unconditionally and the auctioneers to tax their costs.
f) This application has been made without undue and/or unreasonable delay.
g) The appeal raises triable issues that need to be heard and determined by this honourable court.
h) His application ought to be granted in the interests of equity and justice, as the applicant is being denied a source of livelihood.
3. The respondent opposed the application on the following grounds:
a) That the auctioneer’s fees have not been paid.
b) That the application lacks merit.
4. Rule 55 of the Auctioneer’s Rules provides:
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.
5. The law clearly outlines how to resolve disputes involving paying fees for an auctioneer. Attachment without an order may amount to self-help and ought to be discouraged. In this case, the attachment was improper. I order the release of the attached motor vehicle immediately. If there are unsettled fees, the auctioneer is expected to follow the procedure of realising them.
Delivered and signed at Homa Bay this 11th day of April 2024